A Supreme Court bench consisting of Justice L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhatton on September 15th, 2020 heard the arguments in a plea related to the validity of the Tribunal Rules, 2020 and the appointment to the tribunals.
The submissions were made by Senior Advocate Arvind Datar who was representing Madras Bar Association, arguing on the unconstitutionality of the Tribunal Rules, 2020. Datar said “This was an unfortunate development as the entire functioning of tribunals was taken away from the Acts and was given to the executive. Now, this was taken up in Rojer Mathew. There, it had been concluded that 2017 rules are unconstitutional and the new Rules must be constituted in conformity with the observations of the Supreme Court and placed before them”. He also contended that members of Indian Legal Services, in tribunal after tribunal, selected the judicial members according to the new rules, which meant that a person who doesn’t know anything about a field can now become the Chairman of Appellate Tribunal related to that field, he even said that all these defect rules have already been set unconstitutional in 2017. Datar was not only contending the independence of the judiciary but also the independence of quasi-judicial bodies. Referring to the 2015 Madras Bar Association judgment he said that the 2010 judgment should be followed wisely.
He also opined that there is no good in excluding advocates as the quasi-judicial authorities had to decide the interpretation of the Acts. He said “These columns fail foul of the 2010 Madras Bar Association judgment as well as Rojer Mathew as there is no judicial dominance. Therefore, Para 4 of the Rules must be struck down. And if this Para 4 is struck down, the entire Rules will need to be declared as unconstitutional”, he the submitted “If some tribunals do not allow a lawyer of long-standing to be appointed (as judicial officers) and others do, then it should be struck down as manifestly arbitrary. This is a dangerous trend. What is this new allergy to advocates?” He further said that the “Rules are in contravention to the principles of separation of power, independence of the judiciary (both being part of basic structure of our Constitution), and are against efficient and effective administration of justice”. The Madras Bar Association filed a petition in SC challenging the constitutionality of the rules of 2020 which the central government notified in February 2020 by exercising the power under section 184 of the Finance Act, 2017 when the SC already struck down similar rules made in 2017 in the case Rojer Mathew v. South Indian Bank Ltd. before, hence it was said that the new rules should also be struck down.