The Supreme Court hearing of petitions challenging the Court Reforms Act 2021 witnessed sharp exchanges last week, highlighting the long-standing standoff between the judiciary and the executive over control and management of the courts.
Thursday (November 6) A bench led by Chief Justice of India (CJI) B R Gavai expressed strong dissatisfaction with the Centre’s request to postpone hearing of the case. The CJI termed the move “extremely unfair to the court” and pointed out that public prosecutor R Venkataramani, who represents the government, had been lodged twice before.
The CJI, who is scheduled to retire on November 23, also questioned the timing of the order. He added: “If you want to keep it after (November) 24, tell us frankly.” This came after a hearing last Monday, during which the International Court of Justice described the Centre’s last-minute request to refer the matter to a larger five-judge bench as a “tactic” to avoid the ICC bench and Justice K.V. Chandran.
Decree, law and challenge
The ongoing case has affected courts across the country. Tribunals are quasi-judicial bodies established to provide prompt and specialized resolution of disputes in areas ranging from tax and company law to administrative matters, thus reducing the caseload of other courts.
In September 2021, the Madras Bar Association (MBA) challenged the constitutional validity of the Court Reforms Act, calling it a direct attempt to “legislatively overturn” the Supreme Court ruling and claiming that it undermined the independence of the judiciary.
The challenge centered on provisions of the law that were identical to provisions of a previous decree, which was invalidated by the Supreme Court in July 2021. The most controversial issue was limiting the term of court members to four years and setting the minimum age for their appointment at 50 years.
The association said that by reactivating the same provisions that the court found unconstitutional, Parliament invalidated a judicial ruling without removing the legal basis or “defect” referred to by the court. It considered that this violates the basic principles of judicial independence and separation of powers.
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Behind the long-standing conflict over the courts
The case is the latest chapter in the legislative and judicial tussle that began in 2017 with the Finance Act, which empowered the Center to set rules for the courts. The rules notified by the government were struck down by a Constitutional Bench of the Supreme Court in the Roger Mathew case in 2019 on charges of undermining the independence of the judiciary.
When the Center notified a new set of rules in 2020, it was again challenged by the MBA. In that case, the Supreme Court recommended several amendments – including a five-year term for court members to ensure their independence. She said a shorter term would discourage meritorious candidates and increase executive interference.
However, the Center issued a decree in April 2021 limiting the term of appointment to four years and setting the minimum age for appointment at 50 years. Only three months later, the Supreme Court overturned these rulings as “arbitrary” and inconsistent with the principle of separation of powers.
In a direct legislative response, Parliament passed the Court Reform Law a month later, reactivating the same provisions that the court had declared unconstitutional.
Arguments
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The petitioners, led by the MBA, said the four-year term of court members makes members insecure and vulnerable to executive pressure, especially if they hope to be reappointed. They also asserted that the 50-year-old maximum arbitrarily excluded younger, successful lawyers from consideration, even though a person could become a Supreme Court judge at a younger age.
The Union government, in its counter-affidavit filed before the court, said the minimum age ensures that candidates have sufficient experience and that a four-year term, coupled with the possibility of reappointment, provides adequate security.
It also defended the law as a matter of “pure policy” that fell within the exclusive domain of Parliament. She said that, by repealing these provisions, the judiciary violates the principle of separation of powers.
Repercussions
The standoff over appointments and conditions of service has caused long delays in filling vacancies in the two Tribunals. For example, government data as of December 2022 showed a large number of vacancies in the main courts: there were 24 vacancies each in the National Company Law Tribunal, which has a rapporteur strength of 32 people, and the Armed Forces Tribunal, which has a rapporteur strength of 34 people.
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In the Income Tax Law Appeals Tribunal, 18 out of 63 judicial members were vacant. In the Railway Claims Tribunal, the two posts of Vice-President (Judicial) were not filled, as were 16 of the 20 judicial posts. Likewise, in the Central Government Industrial Court, Labor Courts and National Industrial Tribunals, there were only 13 Presidents as against the prescribed strength of 22.
The Supreme Court itself has previously observed that delays in appointments have rendered the courts “effectively dysfunctional”.
(tags for translation) Courts
