The Supreme Court on Monday gave the government an ultimatum, directing it to fill tribunal vacancies by September 13, otherwise it would be compelled to pass orders. The Centre was also criticised for repeatedly bringing in new tribunal reform laws that were identical to provisions struck down by the Supreme Court in its judgments.
The government appears hell-bent on emasculating the tribunals, the Supreme Court observed while castigating the Centre over crippling vacancies in the tribunals.
Chief Justice of India NV Ramana, who was leading a special bench hearing the issue said, the top court was left with only three options to tackle the situation:
a) stay the new tribunal reforms law that was enacted last month in August;
b) Close down the tribunals altogether, or
c) the supreme court would make the appointments and initiate contempt action against the Centre.
"You have no respect for Supreme Court judgments, You are testing our patience," CJI Ramana told Solicitor General Tushar Mehta who was representing the Centre.
Tribunals are quasi-judicial bodies established to decide on specific issues like environment (National Green Tribunal), corporate disputes (National Company Law Tribunal), consumer disputes (National Consumer Disputes Redressal Commission), issues arising in the realty sector (Real Estate Regulatory Authority) among others.
The top court's observations were made on a batch of petitions seeking appointment to tribunals and a constitutional challenge to the new Tribunal Reforms Act, 2021. The top court issued notice on all petitions on this issue. The Centre assured the top court that it did not have the remotest of the intentions to close down tribunals, seeking more time to respond to the petitions.
The Tribunal Reforms Act, 2021 enacted last month on August 13 reduces the tenure of the tribunal chairpersons and the members from five years to four years, a provision which the Supreme Court struck down in the act's earlier avatar.
Do not want confrontation with the Government: Supreme Court
CJI Ramana expressed his appreciation over how the government cleared the appointment of the nine new Supreme Court judges seven days after the collegium made its recommendations. "Then why is it taking the government one and a half years to clear appointments for tribunal chairperson and members?" he asked.
"We do not want confrontation with the government," CJI Ramana said adding that the government had left the top court with no options.
Justice DY Chandrachud, who was also part of the special bench along with CJI Ramana and Justice L Nageswar Rao, observed that tribunals like the National Company Law Tribunal (NCLT), National Company Law Appellate Tribunal (NCLAT) are cornerstones for the economy. These tribunals are important for the rehabilitation of corporate entities, Justice Chandrachud said. He added that important cases were not being heard because of the vacancies and a delay in appointments has created a very critical position.
CJI Ramana said the crippling vacancies have "virtually collapsed" the tribunals.
New act a replica of old provisions struck down by the Supreme Court
Senior advocate Vikas Singh said the new tribunal reforms act was a "virtual replica" of the provisions struck down in the Supreme Court's Madras Bar Association verdict.
Senior Advocate Dr Abhishek Manu Singhvi, who appeared for former environment minister Jairam Ramesh, agreed with Singh saying the provisions in the new act were re-enactments of the provisions that the Supreme Court struck down.
Referring to the new act, Justice Chandrachud pointed out various provisions that were directly contrary to the top court's judgments. "We can't have a situation where the same act is enacted, he said.
Justice Rao observed that the govt was emasculating the tribunals by not appointing members. "The basis of a judgment can be taken away... but you cannot enact a law which is contrary to a judgment. This is not a validating legislation," he said.
"There is no respect for our judgment. You are emasculating these Tribunals by not appointing members. Many tribunals are on the verge of closing down," Justice Rao, who authored the Madras Bar Association judgments in 2020 and 2021, said.
Urging the government to clear appointments, Justice Chandrachud added that we cannot have Madras Bar Association (verdict) versions 1,2,3,4,5...This will continue (provisions will be struck down) and new acts will be passed which are replicas of the earlier ones.
CJI Ramana told the Solicitor General Tushar Mehta, "We have trust and respect for you. I am sure you are not advising the government to bring in such laws. This must be bureaucrats who are doing it and this is how bureaucracy functions."
"We are deeply upset," CJI Ramana said giving the Centre time to respond.