The Supreme Court on 27th November, 2020 was dealing with a petition filed by the Madras Bar Association challenging the validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (“2020 Rules”). In this judgment the Supreme Court particularly ordered that the 2020 Rules shall be amended to the effect that, inter alia,

  1. the Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years
  2. They shall be eligible for reappointment;
  3. Other members shall hold office till they attain the age of sixty-seven years.
  4. Advocates with an experience of at least 10 years shall be eligible for appointment as judicial members in the Tribunals and that they shall be eligible for reappointment. The Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law.

After this judgment, the Government of India, notified The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 in April 2021. Section 12 and 13 of this Ordinance sought to amend Sections 184 and 186(2) of the Finance Act, 2017. The Madras Bar Association, again approached the Supreme Court, claiming that these provisions are ultra vires Articles 14, 21, and 50 of the Constitution of India and violate the principles of separation of powers, independence of judiciary and should therefore be struck down. It stated that these provisions are also in contravention to the above mentioned directions of the Supreme Court with regards to the 2020 Rules.

The Court held that the provision (Section 12) of the Ordinance, which holds that the eligibility criteria for appointments to the Tribunals as 50 years of age, is invalid. It reiterated that advocates having 10 years of experience are eligible for appointment. Further, the Supreme Court had held that the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and that the term of a Member of the Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier. Hence, the new tenure of four years for Chairperson/Member mentioned in the Ordinance was held to be invalid as it was not in consonance with the direction of the Supreme Court.