Draft of amended rules under Finance Act contradictory to SC rules

The insertion of a Section to amend and replace substantive provisions relating to appointment, selection and other service conditions of 19 Tribunals in the form of a 'money bill' suffers from procedural illegality, smacks of constitutional impropriety and amounts to fraud on the Constitution.

The rules for appointing members to tribunals are contradictory to the established law set by the Supreme Court and structured in a way that would dissuade competent judges and lawyers from applying for these posts, senior advocate Arvind Datar said in his submission to the Supreme Court.

In compliance with the December 15, 2017 order, the Centre had filed an affidavit with a proposal to modify the Tribunal Rules on January 4, 2018. In the December order, the apex court had also directed amicus curiae Datar and advocate Mohan Parasaran "to peruse the same and, if necessary, point out anything contrary to the learned Attorney General before the matter is taken up by the court".

After perusing the draft, Datar filed his objections to the draft of amended rules suggesting that the rules in the Finance Act, and the draft of amended rules create a system that is a branch of the executive and not the judiciary.

Apart from losing its independence, senior advocate Arvind Datar observed that even though the Centre was attempting to create a huge quasi-judicial eco-system to ease the burdens on courts, this eco-system has not been given independence or able organisational support.

"The selection committee for appointment of members to the tribunals include secretaries in the ministries of the relevant tribunals," Datar said. "The delegation of substantive powers to frame rules relating to eligibility, selection and other service conditions to the central government is excessive, arbitrary and affects the independence of the tribunals."

In his 11-page affidavit, Datar also said that "in 9 out of the 19 tribunals, however, the parent ministries/departments are also a party to the proceedings before such tribunals, and hence, there is a high possibility that the secretary would be a party to such list. This shows that the tribunals are functioning under ministries/departments against which they would have to pass orders. Therefore, ministries that are parties to proceedings before such tribunals established under it must not be a part of the selection process or even provide for any financial support or hold any administrative control of those tribunals".

Datar also pointed out that there was no uniform criteria, composition or methodology of the selection committees. For 12 out of 19 tribunals, moreover, the composition of the selection committee for the post of a chairperson and members also differ.

The Chief Justice was party to a few selection committees. However, the representation from the judiciary on the committee is in the ratio of 1:4 or 1:5, thereby giving no primacy to views of the Chief Justice or his nominee. In few other tribunals, the selection committees for members do not include any representation from the judiciary.

Datar pointed out that in more than two decades, no steps have been initiated by the Ministry of Law & Justice to take over the functioning of the tribunals.

The secretary of the relevant/parent ministry acts as the convener of their respective search-cum-selection committees as per RULE 4(2). As a result, meetings, deliberations, advertisements, and other secretarial aspects of the appointments are entirely under the control of the parent ministry/department.

DIFFERENCES OUT

• Datar also said that “in 9 out of the 19 tribunals, the parent ministries/departments are also a party to the proceedings before such tribunals
   
• This shows that the tribunals are functioning under ministries/departments against which they would have to pass orders