Madras Bar Association v UOI

(Writ Petition (Civil) No.502 of 2021)

7 SCC 369

FACTS
President of India, by exercising his powers under A123 of Constitution of India
promulgated an ordinance on 4th April 2021. The ordinance was titled as The Tribunals
Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The bill regarding the
same was already pending in Lok Sabha, however no discussion was held regarding the same
and thus the ordinance was promulgated. The ordinance amended 9 Statutes and certain
provisions of Finance Act, 2021.
The amendment allowed the central government to make rules regarding the appointment,
tenure and salaries of the members of tribunals, and their appointment shall be done by Search
cum Selection committee headed by the CJI or any Supreme Court nominated by him. In
addition to this, Section 184 and 186 of the Finance Act, 2021 were amended by the Section
12 and 13 of the issued ordinance which limited the maximum age for appointment of
chairperson or any member of tribunal to 50 years. It further fixed the tenure of members to 4
years or the age of 70 years for the chairperson and 67 years for the members, whichever is
earlier, and limited their salaries.
The ordinance issued by the President was challenges by Madras Bar Association and a writ
petition was filed for the same to declare Section 12 and 13 of the Ordinance as Ultra Vires
Article 14, 21 and 50 of Constitution of India and violative of Principles of Natural Justice and
Separation of Power.

CONTENTION
Madras Bar Association raised contentions against Section 184(1) which fixed the minimum
age for appointment of Chairperson and Member; and also, the second proviso, read with third
proviso, which stipulates that the benefits and allowance payable to Chairperson and Members
shall be same as Central Government officer holding a post carrying the same pay.
 It further raised contention against Section 184(7) which stipulates that the Selection
Committee shall recommend a panel of two names for appointment to the post of Chairperson
or Member and the Central Government shall take a decision preferably within 3 months from
the date of such recommendation, notwithstanding any judgment, order or decree of any Court.
Final contention was regarding Section 184(11) which fixed the term of Chairperson and
Member to a period of 4 years, or, age of 70 years for Chairperson and 67 years for Member,
whichever is earlier.

ISSUE RAISED
1) The Search Cum Selection committee was violative of Principle of Judicial Dominance or
not?
2) Whether the Section 12 and 13 of the Ordinance are ultra vires Article 14, 21 and 50 of
constitution of India?
3) Whether the ordinance violated the doctrine of Separation of Power and Independence of
Judiciary?

PETITIONER’S ARGUMENTS
Senior Adv Arvind Datar, who was appearing on behalf of Madras Bar Association, contended
that the said ordinance issued by the President was violative of Doctrine of Separation of Power
and Independence of Judiciary, both of which are an integral part of Basic Structure of our
Constitution.
He further said that fixing the term of the Chairperson and Members along with setting up a
minimum age of 50 years was against the past ruling of apex court on several landmark
judgments.
In addition to this, the Madras Bar Council sought the establishment of a National Tribunals
Commissions or any specialized wing dedicated to the needs of tribunals in India.

RESPONDENT’S ARGUMENTS
The respondent’s side was against the contentions raised by the petitioners and argued that
the Parliament has complete authority to override the judicial pronouncements and the
regulations regarding service conditions of Members and Chairperson was a matter of policy
decision, within the ambit of Parliament’s Power. The respondent reiterated the practice of
legislative Overruling.
They further claimed that the Court has no authority to issue strict directions to the legislature
in regard to discharging its functions, and even if any such directions are issued by the court.
They are to be considered as mere suggestions only.
In regards to the minimum appointment age of 50 years, the respondent side claimed this was
done to maintain equality in tribunals of India.

RATIONALE
 The Supreme Court analysed the Doctrine of Separation of Power and Independence
of Judiciary and said even though the doctrine of Separation of Power is not expressly
engrafted in the Constitution. It still forms a Basic Structure of the Constitution. The
constitution clearly demarcates the line between the functioning of all three organs,
which is a consequence of Principles of Equality under A14 of Constitution of India.
In regards to Independence of Judiciary, the Supreme Court said Independence of Judiciary if
LIFEBLOOD OF THE JUDICIARY. It saves the judiciary from interference and pressure and
thus it is necessary for the functioning of Judiciary. It is also discipline in life, habits and
outlook that enables a judge to be impartial.
 The Supreme Court observed that Section 184(1) of the Finance Act, 2017, is contrary
to the direction issued in Madras Bas Association (2020) case striking down the
requirement of 25 years of experience at the bar for Advocates to be eligible. The court
further said that the proviso was violative of Doctrine of Separation of Power as it is
violating the abovementioned case.
 The supreme court is regards to Section 184(7), said that in Madras Bar Association
(2020) case, sufficient reasons were given to avoid the influence of Executive in
matters of appointment to tribunals. Therefore, only one person shall be recommended
to each post. Therefore, the provision was held unsuitable in law as it was overriding
earlier judgment of the court.
 In relation to Section 184(11), the Supreme Court said that Rule 9 of 2020 Rules had
specified the term of appointment of the Chairperson and Members as 4 years.
However, the court in the abovementioned case modified this tenure to a period of 5
years. Thus, the guidelines that were issued giving retrospective effect to the provision
from 26-05-2017 were against the ruling of the apex court and thus clause (i) and (ii)
of Section 184(11) were unconstitutional.
JUDGEMENT
The Supreme bench consisting of Justice L Nageswara Rao, Justice S Ravindra Bhat, and
Justice Hemant Gupta by a majority of 2:1 held that certain provisions of Section 184 of
Finance Act, 2017 as amended by The Tribunals Reforms (Rationalisation and Conditions of
Service) Ordinance, 2021 were unconstitutional and thus inoperative. The majority decision
was given by Justice L Nageswara Rao, and Justice S Ravindra Bhat. Justice Hemant Gupta
was of the opinion that laws cannot be struck down merely on the ground that they are not in
accordance with the precedents of the Apex Court.
The decision of court was derived from Madras Bar Association (2020) case and Roger
Mathew case1.

INFERENCE
Tribunals are not defined in any legislations and are not courts. They come under the ambit of
courts and are considered as quasi-judicial bodies which provide speedy and affordable justice.
They were introduced through 42nd amendment 1976 and are incorporated under Article 343A
and Article 343B. The judgment identified the importance of Basic Structure of our
Constitution and upheld the Doctrine of Separation of Power and Independence of judiciary.
In our country, both are essential for the functioning of all three organs. The court also focused
on situation where there exists a clash between the Legislature and Precedents of courts. The
court also focused on limiting the influence of Executive in the tribunals

1
Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1