This article is written by Kavana Rao from Symbiosis Law School, Noida. In this article, by analyzing the observations made by the judges concerning the Madras Bar Association case, we try to understand the importance of discussions and debates before passing bills.
Good laws are made when these laws are discussed, debated upon, absurdities are found, and again reworked upon. Active participation through dialogue and discussions not only helps to understand the aims and objectives of the bills better but also becomes a reservoir of information, perspectives, and a source for future judicial pronouncements.
The Madras Bar Association Case
In this case, the Supreme Court, on November 27th, 2020, set aside the provisions in the Tribunal Reforms Ordinance 2021 which fixed the term of members of various tribunals as four years. The provisions were set aside with a majority of 2:1 where the majority consisted of Justices L Nageswara Rao and S Ravindra Bhat. Along with other few important decisions, it also held that the chairpersons, vice-chairpersons, and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. It also held that the rules would be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals.
Section 184 and Section 186 of the Finance Act, 2017 authorises the Central Government to make appointments, decide the terms of service, allowances of members and other decisions of the various Tribunals. Despite the Finance Act, 2017 already governing these decisions, the Tribunals Reforms Ordinance, 2021 had provisions that involved forming the search- cum selection committees, deciding the eligibility and term of office of the members of the Tribunals. Therefore, the Madras Bar Association filed the writ in the Supreme Court challenging the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 to that extent where it was amending the Section 184 and Section 186 of the Finance Act.
Some of the amendments that were disputed in the petition filed by the Madras Bar Association are:
The provisions in the Tribunal Reforms Ordinance, 2021 consisted that the Central government will appoint the Chairperson and members of the Tribunals based on the recommendations of a Search-cum-Selection Committee. The Committee will be consisting of the following members: (i) the Chief Justice of India, or a Supreme Court Judge nominated by him, as Chairperson (with casting vote), (ii) two Secretaries nominated by the central government, (iii) the sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court, and (iv) the Secretary of the Ministry under which the Tribunal is established (with no voting right). The provision also prescribed that the Search-cum-Selection Committee could recommend two names for each post contrary to the direction in one of the previous judgements which allowed only for the recommendation of one name for each post.
Eligibility and term of office
The Bill establishes a four-year term of office for the president (subject to the upper age limit of 70 years for the Chairperson, and 67 years for members). It also stipulates that a chairperson or member must be at least 50 years old to be appointed. This was contrary to the previous judgments which stipulated that advocates with a minimum experience of 10 years should be made eligible.
The provision under the Tribunal Ordinance Bill also allowed the Central government to make appointments “preferably within three months” of recommendation received by the Search-cum-Selection Committee which was contrary to what was earlier decided in the earlier judgment in the Madras Bar Association Case which had issued a mandatory direction that the appointments must be made within 3 months of recommendation made by the Search cum Selection Committee.
The majority of the judges, Justices L Nageshwara and S Ravindra Bhat held that the conditions laid down in the Tribunal Ordinance, 2021 through its amendments in the Finance Act 2017 were held unconstitutional. Justice Hemant Gupta disagreed on the basis that the law cannot be struck down barely for the reason of being contrary to judgements, and finally, the majority decision was passed with a majority of 2:1.
However, the legislature was not in favour of the verdict passed by the Supreme Court, thus it added a provision under Section 3(1) of the Tribunal Reforms Bill, 2021 that said, “Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, the Central Government may, by notification in the official Gazette, make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal and other conditions of service of the Chairperson and Member of a Tribunal after taking into consideration the experience specialisation in the relevant field and the provisions of this Act:...” allowed it to bypass the Supreme Court’s verdict. While passing the Bill which allowed the Parliament to bypass the Supreme Court’s order in the Madras Bar Association, there were barely any discussions and dialogue. It must be noted that the Lok Sabha merely spent 9 minutes discussing the Tribunals Reforms Bill, 2021 which was very little time allotted for a Bill of such grave importance. It was found that the Bill consisted of the same provisions as it was in the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which was recently struck down in the Madras Bar Association Case. When some of the members pointed out the conflict that the Bill had with the order of the Apex Court, it was disregarded by stating that the Supreme Court had not struck down the provisions on the ground of unconstitutionality. Despite the opposition requesting to refer the bill to the Select Committee, the motion was defeated with 44 ‘ ayes’ and 79 ‘ noes’, thus letting the Lok Sabha pass the bill on August 3rd, 2021 by voice vote, without any debate.
Amarjit Singh Bedi v. Union of India & Ors
Due to the lack of deliberations and discussions, while reintroducing the bill, further passing it in the Lok Sabha, there were few discrepancies in the working of the Tribunals. The bench of Chief Justice N.V Ramana and Justices Surya Kant and Aniruddha Bose was hearing a petition seeking directions for the constitution of the Goods and Services Tax (GST) appellate tribunal which had not been set up even after 4 years of the GST laws coming into existence.
In this case, the Supreme Court demanded from the Centre the rationale behind the recently passed Tribunal Reforms Act, 2021 after the Court struck down the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The CJI commented about how the Bill that was struck down by the court had come back and now become a law. He commented about how no debates or discussions took place in the Parliament while reintroducing this law after it was struck down by the Court. He also observed how there were no reasons given by the government for introducing the bill.
In addition to these comments, the Supreme Court asked the Union Government to give a clear stand with respect to the timely filling up of the vacancies in Tribunals across the country and also on the continuation or closing of tribunals. The Court ordered that the appointments were to be completed in another ten days, and also ordered that the pendency in these matters should not be in the way of appointment of members to the Tribunals.
Indian Council Act, 1892
The Indian Council Act of 1892 was an Act of the Parliament of the United Kingdom. This Act strengthened legislative councils in British India by allowing the increase in their size which laid the foundation of the parliamentary system in India.
This not only increased the number of additional members in the Central and provincial legislative councils but also maintained the official majority in them. The primary feature of this Act which is essential for this article is that the Act increased the functions of legislative councils and gave them the authority to discuss the budget and address questions to the executive. An Act as old as 1982, also emphasised the importance of debates and discussions while passing a bill. The Act also allowed for the nomination of some non-official members of the Central Legislative Council and the Provincial legislative councils. This Act was repealed in 1915. This shows that the importance of debates and discussions was established as early pre-independence, hence the discussions and debates still hold relevance in the present day to interpret the new laws and amendments.
Importance of discussion and debates
Debate in the Assemblies is vital to ensure that every legislation is scrutinized well on the floor of the house. The upper house was designed as a part of the checks and balances that exist in India’s parliamentary system. The power of checks and balances ensures that the authority is not concentrated in the hands of a group or individual. The debates and discussions are also important because when the courts have to interpret a law, one of the things that they take into consideration is the debates and discussions in the House. By understanding and analysing the debates and discussions, one can better understand the legislative intent of the Parliament for formulating that law.
To conclude, through the deliberations of the Supreme Court, we understand the importance of having debates and discussions over the bills. Opposition is the gatekeeper of the government where they are authorised to mind every step of the ruling government. Without debates, deliberations and questioning from the oppositions and among the party members, a sense of arbitrariness is created in the Assembly and also in the nation. Deliberations and discussions help the courts to interpret the law and are sources for better judicial pronouncements in the future.
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