Civil Appeal No. 8588 of 2019
Part XIV of the Finance Act, 2017
In all these cases, the constitutionality of Finance Act, 2017 is in question. A brief reference is made on the three matters. Firstly, WP (C) No.267 of 2012 in which a writ of mandamus was filed directing the Ministry of Law & Justice to promptly carry out a Judicial Impact Assessment on all tribunals created by Parliament. Secondly, in SLP (C) No. 15804/2017 this was filed by Rojer Mathew,after being aggrieved the final judgment given by Kerala HC. The petitioner had approached the HC challenging the Constitutional validity of Section 13(5A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002 which permits secured creditors to participate in auction of immoveable property if it remained unsold for want of reserve bid in an earlier auction claiming that his right under Article 300A and Article 14 of the Constitution has been violated. Lastly to take note of is WP (C) No. 279/2017 where the petitioner, Kudrat Sandhu, has filed a Public Interest Litigation challenging the vires of Part XIV of the Finance Act, 2017 by which the provisions of twenty five different enactments were amended to effects weeping changes to the requisite qualifications, method of appointment, terms of office, salaries and allowances, and various other terms and conditions of service of the members and presiding officers of different statutory Tribunals.The impugned provisions of the Finance Act, 2017 have been referred to in extens or at appropriate parts of this order.
I. Whether the ‘Finance Act,2017’ insofar as it amends certain other enactments and alters conditions of service of persons manning different Tribunals can be termed as a ‘money bill’ under Article 110 and consequently is validly enacted?
II.If the answer to the above is in affirmative then whether Section 184 of the Finance Act is unconstitutional on account of excessive Delegation?
III.IF section 184 is valid, whether Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 are in consonance with the Principle Act and various decisions of this court on functioning of Tribunals?
IV. Whether there should be a single Nodal Agency for Administration of all Tribunals?
V.Whether there is a need for conducting a Judicial Impact Assessment of all Tribunals in India?
VI.Whether judges of Tribunals set up by Acts of Parliament under Articles 323 A and 323 B of the Constitution can be equated in ‘rank’ and‘status’ with Constitutional Functionaries?
VII.Whether direct statutory appeals from Tribunals to the SC ought to be detoured?
VIII.Whether there is a need for amalgamation of existing Tribunals and setting up of benches?
This Court in L. Chandra Kumar v. Union of India envisaged the administration of the entire Tribunal Framework in the country to be monitored by a single no dalagency/ ministry. It was observed not to be advisable to allow supervision of a tribunal by a department/ ministry which is a party before it. In Madras Bar Association v. Union of India (2014) whilst striking down the newly created National Tax Tribunal under the National Tax Tribunal Act, 2005, it was observed that procedure of appointment and conditions of service of members must be akin to judges of the Courts which were sought to be substituted by the tribunals. The Central Gov. cannot be allowed to have administrative control over the Judiciary without subverting the doctrine of Separation of Powers. In RK Jain v. Union of India, a three judge Bench of this court asserted the need for independent system of appointment and administration of Tribunals to maintain public trust in the judiciary while expressing its agoy over inefficacy oh the working of Tribunals in the country.
The Hon’ble Bench is of the conclusion that:
The issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the speaker of the Lok Sabha in respect of Part- XIV of the Finance Act,2017 is referred to a larger bench.Section 184 of the Finance Act, 2017 does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this court.The Tribunal, Appellate Tribunal and other Authorities (Qualification,Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities. These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017 being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this court, are hereby struck down in entirety. The Centre Gov. is directed to re formulates rules according to the principles laid down in RK Jain, L Chandra Kumar and Madras Bar Association case. New set rules must be non discriminatory and uniform conditions of service including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialized professions/ services constitute two separate and distinct homogeneous classes. Centre Government can provide in the new set of rules that the presiding officer or members of the Statutory Tribunals shall not hold rank and status equivalent to the Judges of the SC and HC. There is a need based requirement to conduct Judicial Impact Assessment of all the tribunals referable to the Finance Act, 2017. Thus, we find it appropriate to issue a writ of mandamus to the Ministry of Law and Justice to carry out such ‘judicial Impact Assessment ‘ and submit the result of the findings before the competent legislative authority. The Union Govt.shall carryout an appropriate exercise for amalgamation of existing tribunals adopting the test of homogeneity of the subject matters to be dealt with and constitute adequate no. of Benches commensurate with the existing ad anticipated volume of work.
ARTICLE 174(2)(B), ARTICLE 361 OF THE CONSTITUTION OF INDIA
Section 27 of the Disaster Management Act
Section 40 in The Indian Stamp Act, 1899 Section 39 in The Indian Stamp Act, 1899 Section 38 in The Indian Stamp Act, 1899 Section 33 in The Indian Stamp Act, 1899 Section 35 in The Indian Stamp Act, 1899 Section 13 in The Indian Stamp Act, 1899 Section 11 in The Indian Stamp Act, 1899 Section 332 in The Indian Succession Act, 1925 Section 331 in The Indian Succession Act, 1925