Report Article: Supreme Court upholds validity of Tribunal Rules 2020 with

modifications; orders constitution of National Tribunals Commission.

Introduction:
In the case of Madras Bar Association v. Union of India & Anr 1 (dated 27th November, 2020)
the Hon’ble Supreme Court of India had upheld the validity of Tribunal, Appellate Tribunal
and other Authorities (Qualifications, Experience and other Conditions of Service of
Members) Rules 2020, (Tribunal 2020 Rules) along with some certain modifications and
ordered the constitution of National Tribunals Commission to overlook the appointments to
the Tribunal and for its effective functioning.
A three judge bench of the apex court headed by Justice L Nageswara Rao took the
suggestions of senior Advocate Arvind P Datar who was the amicus curiae of this case and
advised that constituting a National Tribunals Commission who lead to better functioning of
the tribunals.
On the petition filed by the Madras Bar Association the court had passed the order.

Facts:
The Petitioner i.e. the Madras Bar Association while filing the writ petition had raised certain
issues that the Tribunal Rules 2020 are as unconstitutional as:
The Tribunal Rules 2020 did not comply with the principles of judicial dominance as
provided in the search-cum-selection committees.
Regarding the post of Judicial Member, presiding officer and chairpersons there has been
appointment of persons without judicial experience and this is in contravention to the earlier
judgements of the Hon’ble Supreme Court.
The four year term of office of members is in conflict with the earlier decisions of Hon’ble
Supreme Court.
For the appointment of most of the Tribunals the advocates are not been made eligible
In matters concerning the appointments and condition of service, the administrative control of
the executive is violative of the principles of separation of power, independence of judiciary
and also demonstrates non-application of mind.

Further issue raised on:

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WP (C) No. 804 of 2020
In this case, the Hon’ble Supreme Court of India, the directions given were as follows:
National Tribunals Commission
 Along with the decision of the constitution bench in the case Roger Mathew Vs. South
India Bank Limited2 (13 November, 2019).
 The bench also ordered that a separate wing on the Ministry of finance, Government
of India shall be made to cater all the needs of the tribunals, till the National Tribunals
Commission is constituted.
 It was held that the Union of India shall constitute a National Tribunals Commission
which will act as an independent body to look after the appointments and functioning
of the Tribunals, conduct disciplinary proceedings against members and also to take
care in a decent manner the administrative and infrastructure needs of the Tribunals.
Constitution of Search cum Selection committee
Rather than having a four member Search cum Selection committee as mentioned in the
Column 4 of the schedule to the 2020 rules with Chief Justice of India or his nominee,
outgoing or sitting chair person or President of Tribunal, the Search cum Selection committee
shall comprise of the following members:
 The Chief Justice of India or his nominee- Chairperson (with casting vote);
 The outgoing Chairman or Chairperson or President of Tribunal in case of the
appointment of the Chairman or Chairperson or President of the Tribunal or the
sitting Chairman or Chairperson or President of Tribunal in the matter of appointment
of other members of Tribunal or retired Judge of Supreme Court of India or retired
Chief Justice of High Court in case the Chairman or Chairperson or President of
Tribunal is not a judicial member or if the Chairman or Chairperson or President of
Tribunal is seeking re-appointment – member;
 Secretary to the Ministry of Law and Justice, Government of India- member;
 Secretary to the Government of India from a department other than parenting or
sponsoring department, nominated by the Cabinet Secretary – member;
 Secretary to the sponsoring or parent ministry or department- Member
Secretary/Convener (without a vote).
 The 2020 rules were supposed to be read in this manner until the amendments were
made.

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Civil Appeal No. 8588 of 2019
Recommendation of one name instead of panel of three names
 Rule 4(2) of the National Tribunal 2020 rules shall be amended in such a way that the
Search cum Selection committee shall recommend the name of one Committee
instead of panel of 3 names. If any more names have been recommended then it will
be included in the waiting list.
Term of office Increased
 For a term of 5 years the Chairpersons, Vice Chairpersons and the members of the
Tribunal shall hold office and they shall also be eligible for reappointment.
 Rule 9(2) of the National Tribunal 2020 rules shall be amended in such a way that the
Vice-chairman, Vice- Chair-person and Vice president and other members shall hold
office till they attain the age of 67 years.
Housing/ allowance to Chairperson
 Genuine efforts shall be made for providing suitable housing to the Chairman or
Chairperson or President or other members of the Tribunal by the Union of India.
Advocates with 10 years of practice made eligible for appointment
 The National Tribunal 2020 rules shall be amended in such a way that the Advocates
with an experience of at least 10 years shall be made eligible for appointment as
judicial members.
 While considering this the Search cum Selection committee shall take into account the
experience of the Advocates at the bar and their specialization in the relevant
branches of Law. Also they shall be entitled to re-appointment for at least 1 term.

Application of National Tribunal 2020 Rules

 As per Rule 1(2) of The National Tribunal Rules, it shall be made applicable from
February 12, 2020 and shall have an imminent effect.
 Appointments which were made prior to 2017 rules and during the pendency of Rojer
Mathew Judgement shall be governed by the concerned statutes like the Patent Act.
 Any appointments that were made post the 2020 Rules coming into force that is on or
after 12th of February then it shall be governed by the 2020 Rules which are subjected
to the modifications directed in the preceding paragraphs of the Judgement.
 At last in view of the final judgement, the retirements of chairpersons, vice-
chairpersons and members of tribunals shall be according to the rules that are
applicable
References:

http://www.businessworld.in/article/SC-upholds-validity-of-Tribunal-Rules-2020-with-
modifications/28-11-2020-347763/

https://www.barandbench.com/news/litigation/supreme-court-upholds-tribunal-rules-2020

https://main.sci.gov.in/supremecourt/
2020/16100/16100_2020_35_1501_24869_Judgement_27-Nov-2020.pdf