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A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli said the AG has mentioned that some appointments to AFTs and CAT are pending with the selection committee headed by Justice A M Khanwilkar.
The apex court made the remarks after senior advocate Arvind Datar mentioned for urgent listing of a plea pertaining to filling of vacancies in the tribunals and challenge to new Tribunal Reforms Act.
CJI Ramana said, “Last time, Justice Rao’s bench had passed the judgement in the matter and they had not honoured the verdict and had immediately come out with a similar Act”.
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He said several eligible advocates below the age of 50 years are not considered even after the court had said that the age bar of 50 years cannot be applied and such a distinction cannot be made.
He said the court had directed that the tenure of members should be fixed as five years, and age of 67 or 70 years, but the Centre is making appointments saying it will be four years and 67 or 70 years or until further orders, whichever is earlier.
“This, ‘until further orders’, should be deleted from the appointment letters. Once the selection committee headed by a Supreme Court judge has cleared the name, the government has no say in the appointment,” he added.
Datar said the Centre maintains that its legislation is supreme and what is shocking is that after the Supreme Court struck down various conditions of appointment in the ordinance; they brought identical provisions in the Act.
The bench said the matter would be listed for hearing on March 24.
On September 6 last year, the top court had termed the provisions in new law on tribunals “replica” of those struck down earlier.
It had told the Centre that though the government has the power to take away the basis of a judgement by making new laws, they cannot be “directly contradictory” to its verdicts.
”The legislature can take away the basis of the judgement of the Supreme Court. But you cannot make an Act which is directly contradictory to the judgement of the Supreme Court,” it had said.
The law pertains to terms and conditions of service and tenure of members of various tribunals and revives some of the provisions struck down by a bench headed by Justice Rao last year on pleas including the one filed by Madras Bar Association.
The top court was critical of the fact that the law was cleared without any discussion in Parliament and had restored the provisions which were struck down and had said the “Act is virtually a replica of the provisions which have been struck down in Madras Bar Association cases- II and III”.
The top court had then sought response from the Centre on a batch of petitions, including the one filed by Congress leader Jairam Ramesh challenging the Constitutional validity of various provisions of the Tribunal Reforms Act, 2021, which was passed during the last Monsoon Session of Parliament and received Presidential assent on August 13, 2021.
The Congress leader, in his plea, said that he has filed the petition in public interest assailing the proviso to Section 3(1) along with Sections 3(7), 5 and 7(1) of the Tribunal Reforms Act, 2021 as being ultra-vires Articles 14, 21 and 50 of the Constitution.
“The Petitioner is aggrieved by the impugned Act abrogating the principle of judicial independence, and its passage being a deliberate attempt to legislatively override the judgement of this Court in Madras Bar Association versus Union of India, which set aside provisions identical to those being impugned, without removing the basis of the judgement,” the petition said.