(1.) The Madras Bar Association has filed this Writ Petition seeking a declaration that Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuch as these are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down by this Court in Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1, Madras Bar Association v. Union of India and Anr. (2014) 10 SCC 1, Rojer Mathew v. South Indian Bank Limited and Ors. (2020) 6 SCC 1 and Madras Bar Association v. Union of India and Anr. (2020) SCC Online SC 962. The Petitioner seeks a further direction to Respondent No.2 for establishment of a separate wing to cater to the requirements of tribunals in India.
(2.) A brief reference to the historical background of tribunalisation in this country is necessary for a better appreciation of the dispute that falls for adjudication in this Writ Petition. The Statement of objects and reasons for insertion of Articles 323-A and 323-B in the Constitution of India by the Forty-Second Amendment is as follows:
(3.) The vires of the Administrative Tribunals Act, 1985, enacted under Article 323-A (1), was challenged in S.P. Sampath Kumar v. Union of India and Ors. (1987) 1 SCC 124 before this Court. The main ground taken in the writ petition was that the jurisdiction of the High Court under Article 226 and Article 227 cannot be barred. It was held by this Court in S.P. Sampath Kumar (supra) that in place of a High Court, the Parliament can set up an effective alternative institutional mechanism with the power of judicial review vested in it, by placing reliance on the observation made in Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625. However, this Court was of the firm opinion that the tribunals should be a real substitute to High Courts. While scrutinizing Chapter II of the Act which dealt with the establishment of tribunals, this Court expressed its view that a short tenure of Members of tribunals would be a deterrent for competent persons to seek appointment as Members.
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