TMI Blog2019 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... er Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities as observed earlier. 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. (iv) The Central Government is accordingly directed to re-formulate the Rules strictly in conformity and in accordance with the principles delineated by this Court in R.K. Jain (supra), L. Chandra Kumar (supra), Madras Bar Association (supra) and Gujarat Urja Vikas Ltd. (supra) conjointly read with the observations made in the earlier part of this decision. (v) The new set of Rules to be formulated by the Central Government shall ensure 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 specialised professions/services, constitute two separate and distinct homogeneous classes. (vi) It would be open to the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the interpretation of sub-clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of money bill to a larger Bench and direct accordingly. I am in agreement with the observations of brother Justice Deepak Gupta that the qualifications of members to tribunals constitute an essential legislative function and cannot be delegated. Tribunals have been conceptualized as specialized bodies with domain-specific knowledge expertise. Indispensable to this specialized adjudicatory function is the selection of members trained in their discipline. Keeping this in mind, the prescription of qualifications for members of tribunals is a legislative function in its most essential character. Deepak Gupta, J. I am in total agreement with the Chief Justice in as much as he has held that the decision of the Hon ble Speaker of the House of People under Article 110 (3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view of the high of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iksha Rai, AOR Mr. Ishan Bisht, Adv. Ms. Palak Mahajan, Adv. Mr. Rajiv Shukla, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Gorang Goyal, Adv. Ms. Shivani Kapoor, Adv. Mr. Sidharth Luthra, Sr. Adv. Mr. Alok Dhir, Adv. Ms. Maneesha Dhir, Adv. Mr. Sachin Gupta, Adv. Mr. Ashu Kansal, Adv. Mr. Karan Batura, Adv. Ms. Anushree Prashit Kapadia, AOR Mr. K. Krishna Kumar, AOR Ms. Archana Pathak Dave, AOR For the Respondent : Mr. K.K. Venugopal, AG Mr. Tushar Mehta, SG Ms. Madhavi Divan, ASG Mr. R. Balasubramanian, Sr. Adv. Mr. Zoheb Hossain, AOR Ms. Shraddha Deshmukh, Adv. Ms. Binu Tamta, Adv. Mr. Piyush Goyal, Adv. Mr. Vivek Gurnani, Adv. Mr. Arvind Kumar Sharma, Adv. Ms. Chinmayee Chandra, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Manan Popli, Adv. Mr. Rajeev Ranjan, Adv. Mr. Shantanu Sharma, Adv. Mr. Varun Chugh, Adv. Mr. Buhwan Kapoor, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Raj Bahadur Yadav, AOR Mr. P. I. Jose, AOR Mr. Harikumar V., Adv. Mr. Ashok Mathur, AOR Mr. Ajay Veer Singh, Adv. Mr. Uday Ram Bokadir, Adv. Mr. Sonal Jain, AOR Mrs. Anil Katiyar, AOR Mr. E. C. Agrawala, AOR M/s. Saharya Co. Ms. Diksha Rai, AOR Mr. Ajay Bansal, Adv. Mr. Gaurav Yadava, Adv. Ms. Veena Bans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wholly independent agency for the administration of all such Tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. 6. Thereafter on the same day, this Court opined as follows: Tentatively, we are of the view that the said directions ought to have been implemented by the Government of India long back. In the course of hearing today, learned Attorney General for India relying on an affidavit filed on behalf of the Union of India in the year 2013, had pointed out certain difficulties including the need for an amendment of the Government of India (Allocation of Business) Rules, 1961. Learned Attorney General has also pointed out that the Ministry of Law and Justice is overburdened and may not be able to act and function as the nodal agency, which the Court had in mind while issuing directions way back in the year 1997 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities 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. Rojer Mathew claimed that the aforementioned provision violated his rights under Article 300A and Article 14 of the Constitution, besides being in contravention of the Code of Civil Procedure which prohibits mortgagees from participating in auction of immovable property without prior Court permission. 8. During the course of arguments, it was brought to the notice of this Court that appointments to the Debt Recovery Tribunals was not in consonance with the Constitutional spirit of judicial independence. Accordingly, though Rojer Mathew was given an opportunity to approach the High Court for reconsideration of his plea on 16th May, 2018, nevertheless this Court kept his petition pending to allow consideration of broader issues concerning restructuring of Tribunals. Assistance of Shri Arvind P. Datar, Sr. Advocate as Amicus Curiae was also requested by this Court. 9. The third matter to be taken note of is Writ Petition (Civil) No. 279/2017 where the petitioner, Kudrat Sandhu, has filed a Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-judicial functions with the primary objective of providing a special forum for specific type of disputes and for faster and more efficacious adjudication of issues. In Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand AIR 1963 SC 677, a test was laid down whereunder it is to be examined whether the authority has the trappings of a Court, facets of which include the authority to make determinations, evidentiary and procedural powers and ability to impose sanctions. However, per a five-judge bench in Associated Cement Co. Ltd. v. PN Sharma AIR 1965 SC 1595, Tribunals were vested with a primarily judicial character for it was observed that: 9. .. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the courts and the tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions , (vide Durga Shankar Mehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267 at p. 272] ). They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PERSPECTIVE 16. The global approach to the institution of specialized Tribunals is a largely consistent one. A cursory examination brings to fore a universal inherent need to disperse disputes across different adjudicatory bodies to reduce the burden on Constitutional Courts and ensure faster resolution of specific disputes. Almost all countries in the world have incorporated laws pertaining to the working of Tribunals within their Constitutional framework in some form or the other. In light of our common law traditions and colonial history, it would be imperative to examine the position of law across the world: I. United Kingdom 17. Tribunals are one of the most important institutions in the dispensation of justice in the British Judicial system. Numerous Tribunals have been established to deal with issues involving property rights, employment, immigration, mental health, etc. Their functions are similar to the mainstream judicial bodies and are concerned with disputes between individuals and the State. However, there is a stark distinction between Tribunals and Ordinary Courts in England; for unlike ordinary Courts, the Tribunals comprise of members with special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaper, faster, better and more accessible. This finding has been echoed by various international commissions which have noted the beneficial impacts of tribunalisation viz., cost effectiveness, accessibility, reduction in pendency, specialized expertise, etc. Tribunals are not ordinary courts, but neither are they appendages of Government Departments. Much of the official evidence appeared to reflect the view that tribunals should properly be regarded as part of the machinery of administration, for which the Government must retain a close and continuing responsibility. Thus, for example, tribunals in the social services field would be regarded as adjuncts to the administration of the services themselves. We do not accept this view. We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The essential point is that in all these cases Parliament has deliberately provided for a decision outside and independent of the Department concerned, either at first instance or on appeal from a decision of a Minister or of an official in a special statutory position Although the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The work of the Tribunals are regulated by legislation and Members are usually appointed for their expertise in the subject. 24. Many of the Tribunals are empowered by their enabling legislation or general legislations to have powers similar to Civil Courts. However, Tribunals in Canada are less formal than Courts and are outside the general Court system; their decisions are subject to Judicial Review to ensure adherence to law. In a striking resemblance to our judicial system, the Canadian Constitution also provides inherent power of judicial review of decisions of Tribunals to superior Courts, where either no provision of appeal is provided or is specifically barred by a statute. Appeals from orders of Tribunals in Canada are heard by Federal Court of Canada, the immediate forum below the Supreme Court of Canada. III. Australia 25. The Australian system of Tribunals is an amalgamation of the system prevalent in England and Canada. Tribunals in Australia were established primarily to reduce the burden on Civil Courts and provide an effective, yet cheap means of justice for the public. There prevails a variety of Tribunals to review different types of Government decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formed to decide appeals from the Original Court and; the third tier is Conseil d'Etat Court of Last Resort, which was formed to finally decide appeals from the Original Court or Court of Appeal. However, unlike in common law countries, the Appellate Courts in France lack power of judicial review on the ground of authority being ultra vires. VI. South Africa 29. South Africa having similar colonial origins as India, inherited a similar legal system as India. Having multiple functions and discharging a range of judicial, DOMESTIC PERCEPTION: 30. It is interesting to note that establishment of Tribunals in India relate back to as early as the year 1941 when the Income Tax Appellate Tribunal (ITAT) was established to expedite tax disputes. To structuralise the establishment of Tribunals, vide the 42nd Constitutional Amendment, Article 323A and 323B were introduced, delineating powers as well as the composition and formation of Tribunals. Numerous Tribunals thereafter have been established, with the source of power to legislate for establishing such tribunals being referable to Article 323A or Article 323B of the Constitution. The three-tier tribunal system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain adequate competition in the market and protect consumer welfare. Further, the Competition Act, 2002 was later enacted which provided certain powers of Civil Courts to the CCI for effective enquiry and adjudication. 37. Tribunals can thus be viewed as alternate avenues to facilitate swift dispensation of justice through less-formal procedures of adjudication. An examination of existing Tribunals in India and across foreign jurisdictions, shows that they are best suited to deal with complex subject-matters requiring technical expertise such as service law, tax law, company law or environment law, etc. LEGISLATIVE DEVELOPMENT OF TRIBUNALISATION : 38. In India, the Constitution (42nd Amendment) Act, 1976 paved way for tribunalisation of the justice dispensation system by introduction of Articles 323A and 323B in the Constitution. These provisions are to the following effect: PART XIV-A: TRIBUNALS 323-A. Administrative tribunals. (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the State of any estate as defined in Article 31-A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way; (e) ceiling on urban property; (f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in Article 329 and Article 329-A; (g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods; (h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants; (i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters; (j) any matter incidental to any of the matters specified in sub-clauses (a) to (i). (3) A law made under clause (1) may (a) provide for the establishment of a hierarchy of tribunals; (b) specify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to hear environmental disputes. 41. Consequently, the National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997 were enacted. However, these were soon found to be incapable of providing expeditious resolution of disputes which necessitated reforms as suggested by the Law Commission of India. This led to the establishment of the National Green Tribunal (NGT) in 2010 as a special fasttrack Court only to deal with issues related to the environment. 42. Similarly, Article 323B empowers the appropriate Legislature to enact legislation to provide for adjudication or trial by Tribunals of any disputes, complaints or offences with respect to the matters specified in Clause (2) of the said Article. The matters specified in Article 323B(2) exhaustively deal with a variety of matters which can be brought within the purview of tribunalisation by both the Parliament and State Legislatures. JUDICIAL DEVELOPMENT OF TRIBUNALISATION : 43. This Court has observed through numerous decisions that the term Tribunal refers to a quasi-judicial authority. A test to determine whether a particular body was merely an administrative organ of the Executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack of judicial experience of non-judicial members, this Court observed a need for establishment of an oversight mechanism to review the competence of all persons manning Tribunals. Thus, it was suggested that all Tribunals be brought under a Single Nodal Ministry , most appropriately the Ministry of Law Justice, for overseeing of working of Tribunals. Liberty was however, granted to the Ministry to appoint an independent supervisory body to delegate the aforesaid functions. Further, the court noted that the procedure of selection of members of Tribunals, allocation of funds and all other intricacies would have to be culled out by such an umbrella organisation. 47. In Union of India vs. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1, a Constitution Bench of five judges of this Court reviewed the Constitutional validity of Parts I-B and I-C of The Companies Act, 1956 inserted by the Companies (2nd Amendment) Act, 2002. 48. The bench observed that if Tribunals are established in substitution of Courts, they must also possess independence, security and capacity. Additionally, with transfer of jurisdiction from a traditional Court to a Tribunal, it would be imper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (d) of sub-section (2) and clauses (a) and (b) of subsection (3) of Section 10-FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in the Central or the State Government, being qualified for appointment as Members of Tribunal, are invalid (iii) A technical member presupposes an experience in the field to which the Tribunal relates. A member of the Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of company law cannot be considered as experts qualified to be appointed as technical members. Therefore clauses (a) and (b) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 20 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as technical members in the Company Law Tribunal, is invalid. (v) Persons having ability, integrity, standing and special knowledge and professional expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as member should be prepared to totally disassociate himself from the executive. The lien cannot therefore exceed a period of one year. (xi) To maintain independence and security in service, sub-section (3) of Section 10-FJ and Section 10-FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India. (xii) The administrative support for all Tribunals should be from the Ministry of Law and Justice. Neither the Tribunals nor their members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or Department concerned. (xiii) Two-member Benches of the Tribunal should always have a judicial member. Whenever any larger or special Benches are constituted, the number of technical members shall not exceed the judicial members. 50. Later, in Madras Bar Association vs. Union of India (2014) 10 SCC 1, whilst striking down the newly-created National Tax Tribunal under the National Tax Tribunals Act, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew by this Court and a reference to the Law Commission of India was made in this regard. Pursuant to this, the Law Commission of India, in its 272nd Report titled Assessment of Statutory Frameworks of Tribunals in India gave a detailed analysis of statutory framework with respect to Tribunalisation in India. THE FINANCE ACT, 2017: ITS LEGISLATIVE BACKGROUND 55. Primary challenge in the present batch of cases is to the Finance Act, 2017. Though this enactment was purportedly to give effect to the finance proposals of the central government for the financial year 2017-18 but Part XIV thereof consists of comprehensive provisions meant to effect Amendments to Central Acts to Provide for Merger of Tribunals and other Authorities and Conditions of Service of Chairpersons, Members, etc . 56. A scrutiny of Part XIV of the Finance Act, 2017 discloses how by virtue of Sections 158 to 182, Parliament has amended twenty-five central enactments which form the foundation for multiple Tribunals. It has been submitted by the learned Attorney General, these amendments seek to rationalise the functioning of Tribunals, in conformity with the principles laid down by this Court in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation and removal and other terms and conditions of service of the Presiding Officer of the Industrial Tribunal appointed by the Central Government under sub-section (1) of Section 7A, shall, after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be governed by the provisions of Section 184 of that Act: Provided that the Presiding Officer appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of Section 184 of the Finance Act, 2017 had not come into force. 59. There are two significant expressions worth noticing in these similarly worded Sections 158 to 182. First, every such Section opens up with a nonobstante clause and it provides that notwithstanding anything contained in Act the qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairman and other members of the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed, (a) in the case of Chairperson, Chairman [President or the Presiding Officer of the Securities Appellate Tribunal], the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer [of the Industrial Tribunal constituted by the Central Government and the Debts Recovery Tribunal] or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice- President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through examination of the substance of the legislation and not mere acceptance of the nomenclature accorded by the Lok Sabha Speaker under Article 110(3). 65. A nuanced argument was also furthered by petitioners counsels who highlighted that Tribunals are governed by Article 323-A and 323-B of the Constitution and laws enacted in this regard cannot be classified as money bills. Further, Parliament in making changes to Tribunals can trace its competence to Entry 11-A of List III of the Constitution which deals with administration of justice, and not financial matters. 66. Part XIV was also impugned for its effect of terminating the services of presiding officers and members of various now-defunct Tribunals, which was claimed as being a direct interference in the independence of the judiciary. 67. Section 184(1) of the Finance Act, 2017, in so far as it empowers the Central Government to make rules to provide for qualifications and procedure of appointment, conditions of service, terms and salaries was contended to suffer from the vice of excessive delegation. It was stated that the said provision takes away all judicial safeguards and makes the Tribunals amenable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (when the matter was argued), he pointed out, that there are more than 50 functionaries enjoying the conditions of service of a Supreme Court judge and more than 150 such functionaries who have been brought at par with High Court judges. After placing on record multiple problems arising in the administration of justice as a result of such practice, he advocated the need to keep rank and status separate from salary and allowances . 71. Learned Attorney General further relied upon an order passed by this Court in Rajiv Garg vs. Union of India (WP No. 120 of 2017) on 08th February, 2013 directing that a decision be taken by the Central Government on uniformity of service conditions in various tribunals. Reliance was also placed on the 13th Report of the 2nd Administrative Reforms Commission submitted in April 2009 which recommended greater uniformity in service conditions in various tribunals. It was pointed out that, in fact, the Tribunals, Appellate Tribunals and other Authorities (Conditions of Service) Bill, 2014 was introduced in the Rajya Sabha on 14th February, 2014 but somehow could not be passed. Introducing separate amendments for each of these Tribunals would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 2. Appointment to the post of Chairman shall be made by nomination by the Chief Justice of India. 3. Stay the terms of office of 3 years as prescribed in Column 5 of the Schedule to the Tribunal, Appellate Tribunal and other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017. A further direction fixing the term of office of all selectees by the aforementioned interim Search-cum- Selection Committee and consequent appointees as 5 years. 4. All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall be with conditions of service as applicable to the Judges of High Court. 5. A further direction to the effect that all the selections made by the aforementioned interim selection committee and the consequential appointment of all the selectees as Chairman/Judicial/Administrative members for a term of 5 years with conditions of service as applicable to Judges of High Court shall not be affected by the final outcome of the Writ Petition. 76. The learned Attorney General agreed with all except the fourth and fifth suggestions reproduced above, and suggested cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the person selected as Member of the ITAT will continue till the age of 62 years and the person holding the post of President, shall continue till the age of 65 years. 81. Corollary to the order dated 16th July 2018, six officers who had been selected as Member (Judicial) in CESTAT, also demanded the age of superannuation as noted in the case of Members of ITAT, to be applicable to them. Following the same dictum, vide order dated 21st August 2018, clarification regarding the age of superannuation for Members of CESTAT, Armed Forces Tribunal and Central Administrative Tribunal was made. The relevant portion of that order reads as follows: CESTAT: 2. In IA 113281 of 2018, the applicant is an Additional District and Sessions Judge in the State of West Bengal, who has been selected as Member (Judicial) in the CESTAT. The notification of appointment of six officers who have been selected as Member (Judicial), including the applicant, stipulates that they shall hold office for a period of five years or till attaining the age of 62 years, whichever is earlier in terms of the Hon ble Supreme Court s order dated 20 March 2018 . A member of the judicial service would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who exercises a casting vote); Two senior-most judges of the Supreme Court after the Chief Justice of India; Current Law Minister; and Leader of the opposition. 85. The Concept Note also contains the following suggestions: The NTC should oversee functioning of central Tribunals and similar body may be constituted for State Tribunals. The NTC should deal with appointment and removal of members of the Tribunals by constituting sub-committees. The member of the Tribunals should be recruited by national competition. Once recruited they should continue till the age of 62/65 years subject to their efficiency and satisfactory working. The Tribunals should not be haven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and the appointing authority at the same time. There should be restriction on acceptance of any employment after retirement. Bypassing of High Court jurisdiction under Article 226/227 need to be remedied by statutory amendment excluding direct appeals to this Court. There should be proper mechanism for removal of members. 86. The aforement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Tribunals. 88. Thereafter, this Court opined the following recourse :- 20. The above issues may require urgent setting up of a committee, preferably of three members, one of whom must be retired judge of this Court who may be served in a Tribunal. Such Committee can have inter action with all stakeholders and suggest a mechanism consistent with the constitutional scheme as interpreted by this Court in several decisions referred to above and also in the light of recommendations of expert bodies. This exercise must be undertaken in a time bound manner. 89. This was followed by yet another order of 16th May, 2018 recommending constitution of a Committee within two months and expecting the Committee to give its report within three months thereafter. FORMULATION OF ISSUES: 90. The core issues canvassed at the Bar concern the constitutionality of the Finance Act, 2017, particularly whether it satisfies the test of a money bill under Article 110 of the Constitution? Further, in the eventuality that it is held that the impugned legislation has been validly enacted, then does it through Section 184 excessively delegate legislative power to the Executive? Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an ordinary bill must be passed by a simple majority of both the Rajya Sabha and the Lok Sabha and must then receive Presidential ratification. Ordinary bills can be introduced either by the government or by any private member in either house of Parliament. After securing requisite majority in the House it is introduced in, ordinary bills are then sent to the other House for its assent. The Constitution, however, makes two exemptions to this general legislative procedure for formulation of laws. 94. Article 368 provides for the Constituent power of the Parliament to amend the Constitution itself and concomitantly requires a higher threshold of majority in both houses of Parliament, and in certain cases also require the assent of a simple majority of the State legislatures. Article 110, in stark contrast, reverses the threshold and significantly reduces the role of the Rajya Sabha for money bills . Articles 109 and 110 provide that: 109. (1) A Money Bill shall not be introduced in the Council of States. (2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final. (4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill. 95. Money bills as defined under Article 110(1) thus include bills which contain only provisions covered by sub-clauses (a) to (g). These money bills can be introduced only in the Lok Sabha and the role of the Rajya Sabha is merely consultative. Unlike in the case of ordinary bills where the Upper House can block the proposed legislation and act as a check on the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which provides that: 122. (1) The validity of any proceedings in Parliament all not be called in question on the ground of any alleged irregularity of procedure. 99. The Union thus, alternatively, contends that the challenge before this Court to the certification of the Speaker of the Finance Bill, 2017 as a money bill and its consequent passage without the assent of the Rajya Sabha would at best amount to an irregularity of procedure of proceedings in Parliament and hence cannot be inquired into by this Court. 100. It must be noted once again, that like Articles 109 and 110, Article 122 of our Constitution too can be traced to the Constitutional history and developments in the United Kingdom. Certain Members of Parliament were tried and imprisoned for their remarks in Parliament during the seventeenth century resulting in the enactment of Article 9 of the Bill of Rights, 1688 which specifies that . proceedings in Parliament ought not to be impeached or questioned in any Court . Article 212(1) of the Constitution of India provides a direct corollary of Article 122(1) with respect to State legislatures. 101. This provision was initially interpreted in MSM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that has been granted is limited to irregularity of procedure and does not extend to substantive illegality or unconstitutionality by observing: Any attempt to read a limitation into Article 122 so as to restrict the court's jurisdiction to examination of the Parliament's procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of expressio unius est exclusio alterius (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of irregularity of procedure does not make taboo judicial review on findings of illegality or unconstitutionality. In Union of India v. Jyoti Prakash Mitter (1971) 1 SCC 396, this Court had examined clause (3) to Article 217 which makes the decision of the President after consultation with the Chief Justice of India final , if the question arises as to the age of a Judge of a High Court. It was observed that notwithstanding the declared finality of the order of the President, the Court can, in appropriate cases when the order has been passed on collateral c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court is, hence, not barred. 105. On the substantive question of whether the Finance Act, 2017 was a money bill under Article 110(3) it must be noted that until the turn of the twenty-first century, this Court took a consistent position that Article 110(3) of the Constitution would act as an express bar against judicial inquiry into the correctness of the certificate of money bill given by the Speaker of the Lok Sabha. 106. In Mohd. Saeed Siddiqui vs. State of Uttar Pradesh (2014) 11 SCC 415, a three-judge bench refused to judicially review the speaker s certification of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Bill as a Money bill. The phrase proceedings of the Legislature under Article 212(1) was interpreted to include everything said or done in either house . This Court thus held: 43. As discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 255 also shows that under the Constitution the matters of procedure do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) and are in no doubt that Md. Siddiqui and Yogendra Kumar Jaiswal in so far as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon. 110. It must be emphasized that the scope of judicial review in matters under Article 110(3) is extremely restricted, with there being a need to maintain judicial deference to the Lok Sabha Speaker s certification. There would be a presumption of legality in favour of the Speaker s decision and onus would undoubtedly be on the person challenging its validity to show that such certification was grossly unconstitutional or tainted with blatant substantial illegality. Courts ought not to replace the Speaker s assessment or take a second plausible interpretation. Instead, judicial review must be restricted to only the very extreme instance where there is a complete disregard to the Constitutional scheme itself. It is not the function of Constitutional Courts to act as appellate forums, especially on the opinion of the Speaker, for doing so would invite the risk of paralyzing the functioning of the Parliament. 111. In light of the aforementioned narrow scope of inquiry and the high burden to be disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Saeed Siddiqui (supra) and Yogesh (supra) as not laying down the correct law by relying upon the decisions of this Court in Kihoto Hollohan v. Zachillhu and Others (1992) Supp. 2 SCC 651 and Raja Ram Pal (supra). Referring to the definition of Money Bill and the meaning and purpose of the word only used in Article 110(1) of the Constitution, Ashok Bhushan, J. had observed that legislative intent was that the main and substantive provision of an enactment should only be any or all of the sub-clauses from (a) to (f). In the event the main or substantive provisions of the Act are not covered by sub-clauses (a) to (f), the bill cannot be said to be a Money Bill {See paragraph 905}. It was further observed that the use of the word only in Article 110(1) has its purpose, which is clear restriction for a bill to be certified as a Money Bill {See paragraph 906}. Referring to the Aadhaar Act, it was observed that it veers around the government s constitutional obligation to provide for subsidies, benefits and services to individuals and other provisions are only incidental provisions to the main provision. Therefore, the Aadhaar Bill was rightly certified by the Speaker as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general words imposition, abolition, remission, etc. . I think, prima facie, that the word only is not restrictive of the scope of the general terms. If a Bill substantially deals with the imposition, abolition, etc., of a tax, then the mere fact of the inclusion in the Bill of other provisions which may be necessary for the administration of that tax or, I may say, necessary for the achievement of the objective of the particular Bill, cannot take away the Bill from the category of Money Bills. One has to look to the objective of the bill. Therefore, if the substantial provisions of the Bill aim at imposition, abolition, etc., of any tax then the other provisions would be incidental and their inclusion cannot be said to take it away from the category of a Money Bill. Unless one construes the word only in this way it might lead to make article 110 a nullity. No tax can be imposed without making provisions for its assessment, collection, administration, reference to courts or tribunals, etc, one can visualise only one section in a Bill imposing the main tax and there may be fifty other sections which may deal with the scope, method, manner, etc., of that imposition. Further, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope and ambit of Money Bill under Article 110(1) of the Constitution. For example, taxation enactments like the Income Tax Act would qualify as Money Bill under sub-clause (a) to clause (1) of Article 110 and may include provisions relating to Appellate Tribunals which would possibly qualify as incidental provisions covered under sub-clause (g) to clause (1) of Article 110, even if we exclude application of sub-clause (d) to clause (1) of Article 110. The position it could be argued would be different with reference to provisions for constitution of a tribunal under the Administrative Tribunal Act or the National Green Tribunal Act. The bill could however state that the expenditure would be charged on the Consolidated Fund of India. 119. Another aspect which would arise for consideration would be the legal consequences in case a Non-Money Bill certified by the Speaker as a Money Bill, when presented before the Rajya Sabha is specifically objected to on this count by some Members, but on being put to vote no recommendations are made in respect of Non-Money Bill related provisions. 120. The petitioners had argued on the strength of the concurring opinion by Ashok Bhus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding when some of the provisions of an enactment passed as a Money Bill do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches. 123. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), we accordingly direct that this batch of matters be placed before Hon ble the Chief Justice of India, on the admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule shall be appointed in terms of provisions of Section 184 of the Finance Act. These provisions however, do not apply to those who have already been appointed to the said posts immediately before the appointed date, that is the date on which the Central Government may, by a notification in the Official Gazette, bring the said provisions into effect. 127. Section 184, to repeat, reads as under: 184. Qualifications, appointment, term and conditions of service, salary and allowances, etc., of Chairperson, Vice-Chairperson and Members, etc., of the Tribunal, Appellate Tribunal and other Authorities. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the salaries and allowances and other terms and conditions of service of the persons appointed may not be varied to their disadvantage after appointment. 128. Section 185 (1) of the Finance Act is also relevant and reads: 185. Transitional provisions. (1) Any person appointed as the Chairperson or Chairman, President or Vice-Chairperson or Vice-Chairman, Vice-President or Presiding Officer or Member of the Tribunals, Appellate Tribunals, or as the case may be, other Authorities specified in column (2) of the Ninth Schedule and holding office as such immediately before the appointed day, shall on and from the appointed day, cease to hold such office and such Chairperson or Chairman, President, Vice-Chairperson or Vice- Chairman, Vice-President or Presiding officer or Member shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of term of their office or of any contract of service. The Chairperson or Chairman, President or Vice-Chairperson or Vice- Chairman, Vice-President or Presiding Officer or Member of the Tribunals/Appellate Tribunals specified in column (2) of the Ninth Schedule who ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n B. Shama Rao v. Union Territory of Pondicherry, (2015) 4 SCC 770 can be deduced as under: In view of the intense divergence of opinion except for their conclusion partially to uphold the validity of the said laws it is difficult to deduce any general principle which on the principle of state decision can be taken as binding in for future cases. It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein. The utmost therefore that can be said of this decision is that the minimum on which there appears to be consensus was (1) that legislatures in India both before and after the Constitution had plenary power within their respective fields; (2) that they were never the delegates of the British Parliament; (3) that they had power to delegate within certain limits not by reason of such a power being inherent in the legislative power but because such power is recognised even in the United States of America were separatist ideology prevails on the ground that it is necessary to effectively exercise the legislative power in a modem state with multifarious activities and complex problems facing legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to legislate on a subject, then, such legislation does not amount to abdication of powers because from the very nature to legislation it is manifest that when power is misused it can be withdrawn, altered and repealed. Most importantly, the delegate is to only adopt and extend the laws enacted by the Legislature. 132. Mukherjea, J. opined that the legislative functions concern with declaring the legislative policy and laying down the standards which is to be enacted into a rule of law, and what can be delegated as the task of subordinate legislation by its very nature is ancillary to the statute which delegates the power to make it. When the legislative policy is enunciated with sufficient clearness or the standards are laid down, the Courts cannot interfere with the discretion that the Legislature has exercised in determining the extent of necessary delegation. The delegatee cannot be allowed to check the policy declared by the legislators and cannot be given the power to repeal or abrogate any statute. 133. Bose, J. while observing that the main function of the legislature is to legislate and not leave it to others, nevertheless acknowledged that it is impossible to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be within the policy and framework of the guidance provided by the legislature. Thereupon the Division Bench had referred to the policy and guideline theory as a test to decide whether or not it is a case of excessive delegation which it was observed means reference and giving proper regard to the context of the Act and the object and purposes sought to be achieved which should be clear and it is not necessary that the legislation should dot all the i s and cross all the t s of its policy . It is sufficient if it gives the broadest indication of the general policy of the legislature. 135. We would now refer to an earlier decision of this Court in Devi Das Gopal Krishnan Ors v. State of Punjab Ors AIR 1967 SC 1895 wherein K. Subba Rao, CJ. speaking for the Court had struck down Section 5 of the East Punjab General Sales Tax Act, 1948 which had empowered the State Government to fix rate of tax to such rate as it deemed fit, as bad and unconstitutional observing that the needs of the State and the purposes of the Act did not provide sufficient guidance for fixing the rates of tax. It was observed: 16. ...But in view of the multifarious activities of a welfare St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. Thus, the guidelines in the form of providing maximum rates of tax up to which a local body may be given discretion to make its choice or provision for consultation wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament arid the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninhibited. So, the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear to guide the delegate depends upon the scheme and the provisions of the parent Act. 51.5 The nature of the body to whom the power is delegated is also a relevant factor in determining whether there is sufficient guidance in the matter of delegation. 141. Appropriate in regard to policy and guideline test would be reference to yet another earlier judgment of this Court in Gwalior Rayon Silk Mfg. (Wvg.) Co. v. Asstt. Commissioner of Sales (1974) 4 SCC 98 wherein while referring to the views of an eminent American jurist Willioughby, it was stated: 24. The matter has been dealt with on page 1637 of Vol. III in Willoughby on the Constitution of the United States, 2nd Edition, in the following words: The qualifications to the rule prohibiting the delegation of legislative power which have been earlier adverted to are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities: (1) to determine in specific cases when and how the powers legislatively conferred are to be exercised; and (2) to establish administrative rules and regulations, binding both u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the learned Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions. 144. Independence of a quasi-judicial authority like the tribunal highlighted in the above decisions would be, therefore, read as the policy and guideline applicable. Principle of independence of judiciary/tribunal has within its fold two broad concepts, as held in Supreme Court Advocates-On-Record Association and Another v. Union of India (2016) 5 SCC 1 {See paragraph 714}, (i) independence of an individual judge, that is, decisional independence; and (ii) independence of the judiciary or the Tribunal as an institution or an organ of the State, that is, functional independence. Individual independence has various facets which include security of tenure, procedure for renewal, terms and conditions of service like salary, allowances, etc. which should be fair and just and which should be protected and not varied to his/her disadvantage after appointment. Independence of the institution refers to sufficient degree of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legate to subordinate authorities the power to make ancillary rules for the purpose of carrying out the intention of the legislature indicated in the law which gives power to frame such ancillary rules. The matter came before this Court for the first time In re The Delhi Laws Act, 1912 and it was held in that case that it could not be said that an unlimited right of delegation was inherent in the legislative power itself. This was not warranted by the provisions of the Constitution, which vested the power of legislation either in Parliament or State legislatures and the legitimacy of delegation depended upon its being used as an ancillary measure which the legislature considered to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative function. Exactly what constituted essential legislative function , it was held further, was difficult to define in general terms, but this much was clear that the essential legislative function must at least consist of the determination of the legislative policy and its formulation as a binding rule of conduct. Thus where the law passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reached at by Wanchoo, C.J., though on slightly different reasons. 148. On examining the Constitutional scheme, the statutes which had created tribunals and the precedents of this Court laying down attributes of independence of tribunals in different facets, we do not think that the power to prescribe qualifications, selection procedure and service conditions of members and other office holders of the tribunals is intended to vest solely with the Legislature for all times and purposes. Policy and guidelines exist. Subject to aforesaid, the submission of learned Attorney General that Section 184 was inserted to bring uniformity and with a view to harmonise the diverse and wide-ranging qualifications and methods of appointment across different tribunals carries weight and, in our view, needs to be accepted. 149. Cautioning against the potential misuse of Section 184 by the executive, it was vehemently argued by the learned counsel for the petitioner(s) that any desecration by the Executive of such powers threatens and poses a risk to the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Schedule in respect of the Tribunal, Appellate Tribunal or, as the case may be, Authority specified in column (2) of the said Schedule. (2) The Secretary to the Government of India in the Ministry or Department under which the Tribunal, Appellate Tribunal or, as the case may be, Authority is constituted or established shall be the convener of the Search-cum-Selection Committee. (3) The Search-cum-Selection Committee shall determine its procedure for making its recommendation. (4) No appointment of Chairman, Chairperson, President, Vice-Chairman, Vice- Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or Authorities shall be invalid merely by reason of any vacancy or absence in the Search-cum-Selection Committee. (5) Nothing in this rule shall apply to the appointment of Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminary scrutiny of such complaint. (2) If on preliminary scrutiny, the Ministry or Department of the Government of India under which the Tribunal, Appellate Tribunal or, as the case may be, Authority is constituted or established, is of the opinion that there are reasonable grounds for making an inquiry into the truth of any misbehavior or incapacity of a Chairman, Vice-Chairman, Chairperson, Vice-Chairperson, President, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member, it shall make a reference to the Committee constituted under rule 7 to conduct the inquiry. (3) The Committee shall complete the inquiry within such time or such further time as may be specified by the Central Government. (4) After the conclusion of the inquiry, the Committee shall submit its report to the Central Government stating therein its findings and the reasons therefor on each of the charges separately with such observations on the whole case as it may think fit. (5) The Committee shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Revenue Member, Technical Member or, as the case may be, Member shall be paid a salary of ₹ 2,25,000 and shall be entitled to draw allowances as are admissible to a Government of India Officer holding Group A post carrying the same pay. (3) A Presiding Officer of the Debt Recovery Tribunal or a Presiding Officer of the Industrial Tribunal constituted by the Central Government shall be paid a salary of ₹ 1,44,200-2,18,200 and shall be entitled to draw allowances as are admissible to a Government of India officer holding Group A post carrying the same pay. (4) In case of a person appointed as the Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member, as the case may be, is in receipt of any pension, the pay of such person shall be reduced by the gross amount of pension drawn by him. 12. Pension, Gratuity and Provident Fund. (1) In case of a serving Judge of the Supreme Court, a High Court or a serving Judicial Member of the Tribunal or a member of the Indian Legal Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice-Chairman, Vice-Chairperson, Vice-President, Presiding Officer of the Debts Recovery Tribunal and Industrial Tribunal, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member shall be Chairman, Chairperson or as the case may be, President; and (b) for the Chairman, Chairperson, Presiding Officer of Security Appellate Tribunal or President, shall be the Central Government, who shall also be sanctioning authority for Accountant Member, Administrative Member, Judicial Member, Expert Member or Member in case of absence of Chairman, Chairperson, Presiding Officer of Security Appellate Tribunal or President. (2) The Central Government shall be the sanctioning authority for foreign travel to the Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice- President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Technical Member, Presiding Officer or a Member. xxx 18. Other conditions of service. (1) The terms and conditions of service of a Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice- President, Accountant Member, Administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final. 22. Saving. Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, Scheduled Tribes, Ex-servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard. (A) Composition of Search-cum-Selection Committees 151. The composition of some of the Search-cum-Selection Committees, as provided in the Rules, have been reproduced below illustratively: Industrial Tribunal: Search-cum-Selection Committee for the post of the Presiding Officer, - (i) a person to be nominated by the Central Government-chairperson; (ii) Secretary to the Government of India, Ministry of Labour and Employment-member; (iii) .Secretary to the Government of India to be nominated by the Central Government-member; (iv) two experts to be nominated by the Central Government- members. Income Tax Appellate Tribunal: (A) Search-cum-Selection Committee for the post of the President and Vice- President, - (i) a sitting Judge of Supreme Court to be nominated by the Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation of powers has been well recognised and re-interpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and several other later decisions. The exclusion of the Judiciary from the control and influence of the Executive is not limited to traditional Courts alone, but also includes Tribunals since they are formed as an alternative to Courts and perform judicial functions. 154. Clearly, the composition of the Search-cum-Selection Committees under the Rules amounts to excessive interference of the Executive in appointment of members and presiding officers of statutory Tribunals and would undoubtedly be detrimental to the independence of judiciary besides being an affront to the doctrine of separation of powers. 155. In R.K. Jain v. Union of India (supra), 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 agony over inefficacy of the working of Tribunals in the country. In addition to discussing the perils of providing direct statutory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior status and the casual method of working. The last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals. 8.64 Even the experiment of setting up of the Administrative Tribunals under the Administrative Tribunals Act, 1985, has not been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition. Tribunals Tests for I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals. This Court has been lucid in its ruling in Supreme Court Advocateson- Record Assn. v. Union of India (2016) 5 SCC 1 (Fourth Judges Case), wherein it was held that primacy of judiciary is imperative in selection and appointment of judicial officers including Judges of High Court and Supreme Court. Cognisant of the doctrine of Separation of Powers, it is important that judicial appointments take place without any influence or control of any other limb of the sovereign. Independence of judiciary is the only means to maintain a system of checks and balances on the working of Legislature and the Executive. The Executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in judicial appointments. 158. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge or an Additional District Judge; or (c) is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty years in economics, business, commerce, law, finance, management, industry, public affairs, administration, labour relations, industrial disputes or any other matter which in the opinion of the Central Government is useful to the Industrial Tribunal. 161. The contentions of the Learned Counsel for petitioner(s) are, therefore, duly accepted by this Court insofar as it is contended that the Rules have an effect of dilution of the judicial character in adjudicatory positions. It has been repeatedly ruled by this Court in a catena of decisions that judicial functions cannot be performed by technical members devoid of any adjudicatory experience. 162. In Madras Bar Assn. v. Union of India (supra), a five-judge Bench of this Court reiterated the urgent need to monitor the pressure and/or influence of the executive on the Members of the Tribunals. It was asserted that any Tribunal which sought to replace the High Court must be no less independent or judicious in its composition. It was also clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivocally recorded that tribunals vested with judicial power (hitherto before vested in, or exercised by courts), should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The members of the tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. Technical members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise. Therefore it was held that where the adjudicatory process transferred to tribunals did not involve any specialised skill, knowledge or expertise, a provision for appointment of technical members (in addition to, or in substitution of judicial members) would constitute a clear case of delusion and encroachment upon the independence of the judiciary and the rule of law . The stature of the members, who would constitute the tribunal, would depend on the jurisdiction which was being transferred to the tribunal. In other words, if the jurisdiction of the High Court was transferred to a tribunal, the stature of the members of the newly constituted tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or County Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or County Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d principle followed throughout in various other jurisdictions as well, that wherever Parliament decides to divest the traditional Courts of their jurisdiction and transfer the lis to some other analogous Court/Tribunal, the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred. Adjudication of disputes which was originally vested in Judges of Courts, if done by technical or non-judicial member, is clearly a dilution and encroachment on judicial domain. With great respect, Parliament cannot divest judicial functions upon technical members, devoid of the either adjudicatory experience or legal knowledge. 164. It is necessary to notice few other changes brought about by the new Rules. Firstly, most Tribunals were earlier headed by judicial members. With the exception of some Tribunals like the Debt Recovery Tribunal, presiding officers were retired judges either of the Supreme Court or of High Courts. Under the present formulation of Rules, the Central Government has widened eligibility by making persons who otherwise have no judicial or legal experience but if they are otherwise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y) Act, 1976, delineating this incongruity is reproduced below for reference: Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (1) The Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of a Supreme Court or a Judge of a High Court. (2) The Member of the Appellate Tribunal shall be a person not below the rank of Joint Secretary to the Government of India. 166. It appears to us to be incomprehensible as to how both Supreme Court and High Court judges can be eligible for the same post when their experience, exposure, knowledge and stature under the Constitution are vastly different and the two do not form one homogenous class. There can be no forced equality between the two. Doing so would be suggestive of non-application of mind. Such an exercise would merit judicial interference. 167. Further, dispensation of justice requires that the adjudicating institution command respect with the populace. Anomalous situations created by allowing High Court judges to be appointed to a position occupied earlier by a Supreme Court judge, affects the prestige of the Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or Country Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or Country Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service as were available to the Judges of the court sought to be substituted. 171. It is essential that the same be observed in letter and spirit and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding Officer requires judicial and administrative experience of at least that of the judge of a High Court which is evident from the statutes prescribing them. 175. Another oddity which was brought to our notice is that there has been an imposition of a short tenure of three years for the members of the Tribunals as enumerated in the Schedule of Tribunals Rules, 2017. A short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals. Furthermore, prescribing such short tenures precludes cultivation of adjudicatory experience and is thus injurious to the efficacy of Tribunals. 176. This Court criticised the imposition of short tenures of members of Tribunals in Union of India v. Madras Bar Association, (2010) (supra) and a longer tenure was recommended. It was observed that short tenures also discourage meritorious members of Bar to sacrifice their flourishing practice to join a Tribunal as a Member for a short tenure of merely three years. The tenure of Members of Tribunals as prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmen, etc. in all Tribunals. (c) Rule 4(2) of the Rules providing that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee, is in direct violation of the doctrine of Separation of Powers and thus contravenes the basic structure of the Constitution. Corollary to the dictum of this Court in the Fourth Judges Case, judicial dominance in appointment of members of judiciary cannot be diluted by the Executive. (d) Rule 7 accords unwarranted discretion to the Central Government insofar as it merely directs and not mandates the Central Government to consider the recommendation of Committee for removal of a Member of a Tribunal. The Central Government shall mandatorily consider the recommendation of the Committee before removal of any Member of Tribunal. Furthermore, the proviso to Rule 7 creates an unjust classification between National Company Law Appellate Tribunal (NCLAT) and other fora inasmuch as the removal of Chairperson or member of NCLAT alone is to be in consultation with the Chief Justice of India. (e) Moral turpitude is a term well defined by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible, under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out. 182. In Union of India vs. Madras Bar Association (2010) (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and selfsustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals. ISSUE V: WHETHER THERE IS A NEED FOR CONDUCTING A JUDICIAL IMPACT ASSESSMENT OF ALL TRIBUNALS IN INDIA? 185. It was brought to our notice by the Learned Counsel for the petitioner(s) that there is an imminent need for conducting a Judicial Impact Assessment of all the Tribunals referable to the Finance Act, 2017. It was argued that neither the Legislature nor the Executive had conducted any assessment to analyse the adverse repercussions of the changes brought in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many courts are necessary, how many judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such judicial impact assessment has never been made by any legislature or by Parliament in our country. 50. Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report to this Court within four months. 188. In the present case, we are of the view that the legislature has not conformed to the opinion of this Court with respect to Judicial Impact Assessment and thus, has not made any attempt to assess the ramifications of the Finance Act, 2017. It can be legitimately expected that the multifarious amendments in relation to merger and reorganisation of Tribunals may result in massive increase in litigation which, in absence of adequate infrastructure, or budgetary grants, will overburden the Judiciary. 189. In the fitness of things, we deem it appropriate to direct the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual whose conditions of service are akin to those of the Judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service conditions of the CEC are akin to those of the Supreme Court Judges, namely, (i) the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the draftsman has incorporated the same by reference. The second provision is similar to the proviso to Article 125(2). But does that confer the status of a Supreme Court Judge on the CEC? It appears from the D.O. No. 193/34/92 dated 23-7-1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godbole's reply dated 25-7-1992, that the CEC desired that he be placed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme Justice VR Krishna Iyer, Why Stultify Judges Status? , (2002) 2 LW (JS) 85 (June, 2000) . 195. This Court in L. Chandra Kumar (supra) observed that Tribunals are not substitutes of Superior Courts and are only supplemental to them. Hence, the status of members of such Tribunals cannot be equated with that of the sitting judges of Constitutional Courts else, as V.R. Krishna Iyer, J. aptly pointed in his article titled Why Stultify Judges Status? , Creating deemed Justices of High Courts with equal status and salaries suggests an oblique bypassing of the Constitution . . The relevant extract of L. Chandra Kumar (supra) is reproduced as follows: 93. Before moving on to other aspects, we may summarise our conclusions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n were construed by the legislature in a manner resulting in the ousting of jurisdiction of all Courts except the Supreme Court under Article 136. Later, in L. Chandrakumar (supra), this court very aptly held that judicial review by High Courts under Article 226 is a part of the basic structure and hence could not be ousted by any legislation or even Constitutional amendment. Moreover, this Court in L. Chandrakumar (supra) and later in Madras Bar Association (2014) (supra) and Gujarat Urja Vikas Ltd. (supra) reiterated the urgent need to do away with increasingly common provisions in statutes providing direct statutory appeal to this Court, which as discussed elaborately below poses significant problems in the administration of justice and is also against the Constitutional scheme. 200. Since the aforesaid issue has not been directly raised by the petitioners and only a passing reference has been made, it is necessary to delineate whether providing such appeals to this Court is in consonance with the three-tier Judicial system as established under our Constitution. 201. An examination of the jurisdiction of the Supreme Court as envisaged under the Constitution must be made. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in criminal matters. The extract from Article 134(2) has been reproduced below: (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. 203. Article 134(2) is successful in clarifying two things. Firstly, there is no provision analogous to Article 134(2) under Article 133 to expand the jurisdiction of the Supreme Court in non-criminal matters. Secondly, Article 134(2) does not encompass matters other than those arising out of criminal proceedings from the High Courts. 204. Presently, there are more than two dozen statutes which provide direct appeals to the Supreme Court from various Tribunals and High Courts. A nonexhaustive list of such Statutes includes: (i) Section 35L of the Central Excise Act, 1944 (1 of 1944); (ii) Section 116A of the Representation of the People Act, 1951 (43 of 1951); (iii) Section 38 of the Advocates Act, 1961 (25 of 1961); (iv) Section 261 of the Income Tax Act, 1961 (43 of 1961) before the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant and ever-evolving judiciary. Since majority of the judges of the Supreme Court are elevated from the High Courts, their lack of exposure to these specialised areas of law hinders their efficacy in adjudicating the direct statutory appeals from specialised Tribunals. 207. A perusal of the Indian Judiciary: Annual Report 2017-18, published by this Court shows that pendency in the Supreme Court stands at more than 56,000 cases. Each year this Court hears a humungous volume of cases and disposes of approximately 60,000 - 90,000 cases annually, thus amounting to a staggering 4,000 - 6,000 cases per bench. Out of all the cases instituted before this Court, less than 2% is for exercise of writ jurisdiction under Article 32 whereas an overwhelming majority of cases are petitions for special leave to appeal under Article 136. 208. Although the rate of admission of cases peaked at about 20% in 2011 and has fallen since then, it is still far above the marginal rate of about 1% in other comparable jurisdictions such as the Supreme Court of the United States. The mere task of hearing all cases and considering whether to grant leave or not usurps a majority of the Court s time. As a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of the matters involving significant Constitutional questions remain untouched for years; consequently the ability of this Court to keep in check the legislative and executive encroachments is significantly compromised. Cases heard by the Constitution Bench comprising of five or more judges have fallen significantly from over 15% in the 1950s to an average of 0.1 - 0.2% during the last two decades. Hence, it is clear that this Court has been, in a way, transformed from a Constitutional-Writ Court to a Court of Appeals whereunder mere increase of the number of judges is no more a solution. Whilst the number of judges has increased slightly more than four times, the number of cases since 1950 has increased more than seventy folds! It is clear that there is a pressing need to realign the exercise of jurisdiction of this Court and ensure that the Constitutional vision is not defeated. This view has been resonated by this Court since it was highlighted by Justice P.N. Bhagwati in Bihar Legal Support Authority vs. Chief Justice of India (1986) 4 SCC 767 in the following manner: The Supreme Court of India was never intended to be a regular court of appeal against orders made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heck a burgeoning expansion and overloading of the Court s docket. 214. Providing statutory appeals directly to the Supreme Court dents this to no end. With increasing tribunalisation, statutory appeal provisions are ostensibly being included without undertaking any Judicial Impact Assessment . As of last count there are several hundreds of cases which have been decided by the NCLAT and many other thousands by other tribunals pending in this Court. 215. Note must be taken of the direction this country is heading towards for the same has a lasting impact on the kind of disputes which arise before this court. No system can be made in a vacuum, including our own. With the establishment of more tribunals and with increasing commercialisation in line with India s transformation to an open market liberal economy, the number of these cases is bound to only increase. Unlike routine criminal or civil matters which are tried exclusively before ordinary courts, matters which fall before Tribunals are often complex and commercial. 216. In light of this, provisions for statutory appeals directly and liberally to the Supreme Court raises the inevitability of bogging the Court down and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of the Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 of the Armed Forces Tribunal Act. 44. The High Court (the Delhi High Court) while entertaining the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. 220. It is hence clear post L Chandrakumar (supra) that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226. 221. However, it is essential that High Courts use such powers of judicial review restrictively and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105. 223. It is apparent that the Legislature has not been provided with desired assistance so that it may rectify the anomalies which arise from provisions of direct appeal to the Supreme Court. Considering that such direct appeals have become serious impediments in the discharge of Constitutional functions by this Court and also affects access to justice for citizens, it is high time that the Union of India, in consultation with either the Law Commission or any other expert body, revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of Tribunals, and instead provide appeals to Division Benches of High Courts, if at all necessary. Doing so would have myriad benefits. In addition to increasing affordability of justice and more effective Constitutional adjudication by this Court, it would also provide an avenue for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must ensure that, at the very least, circuit benches of all Tribunals are set up at the seats of all major jurisdictional High Courts. CONCLUSION 228. In light of the above discussions and our analysis, it is held that: (i) 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. (ii) 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. (iii) The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities as observed earlier. 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. (iv) The Central Government is accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of Rules, we, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh Rules in accordance with the majority judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new members. 230. The present batch of matters is accordingly disposed of. 231. Writ Petition (Civil) No. 267 of 2012 is also disposed of in the above terms as the issues arising are similar. CJI [RANJAN GOGOI] J. [N.V. RAMANA] J. [DR DHANANJAYA Y CHANDRACHUD] J. [DEEPAK GUPTA] NEW DELHI J [SANJIV KHANNA] NOVEMBER 13, 2019 JUDGMENT Dr Dhananjaya Y Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main of courts, has in incremental stages come to be transferred to the decisionmaking authority of tribunals. There is hence a jurisdictional transfer of dispute resolution to tribunals. Accompanied by legislative enactment, this postulates the exclusivity of entrustment to tribunals. Then again, new tribunals have been constituted to deal with subject areas of a genre quite distinct from, and therefore, unlike the traditional pattern of litigation with which conventional courts were familiar. Tribunals have thus not only taken away subjects which have been carved out of the jurisdiction of courts as a matter of legislative policy, but have also fostered a new culture of adjudication over areas in which a traditional court mechanism had little experience and expertise. In that sense, tribunalisation represents an amalgam of the old and the new: a combination of the role which was traditionally performed by the court together with new functional responsibilities, quite unlike the dispute resolution function which was traditionally performed by courts. Domain specialisation 3 The movement towards setting up tribunals has been hastened in many parts by the need for specialis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal will follow procedures which are less cumbersome and tied to forms established in conventional courts. By allowing for a measure of procedural flexibility coupled with domain knowledge, tribunals are expected to remedy some of the causes which burden the judicial system. 6 Similarly, another object of the growing need for tribunalisation is to unburden the court system. That purpose may be subserved when a chunk of existing cases pending before the conventional court system are transferred for adjudication to the newly created body. Reducing the burden on courts is a partial realisation of the purpose underlying the creation of the tribunal. Equally significant is that the tribunal must possess the ability not to allow, over a period of time, accretions of undisposed cases which had created judicial arrears in the first place. Statistical reduction of pending arrears in the judicial system occasioned by the creation of a tribunal has to be matched by the capacity of the new body to dispose of cases transferred to it from the court as well as new institutions before it. If this is not achieved, the net result is to defeat the very purpose of establishing the tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is determinative of the ability to attract talent to the tribunals. Hence, in preserving the independence of the tribunals as a facet of judicial independence, the effort must be to ensure that the adjudicatory body is robust: subservient to none and accountable to the need to render justice in the context of specialised adjudication. A2 A brief history of tribunalisation in India 9 Delay and backlog in adjudication of cases was a problem even during the colonial era. Arun K Thiruvengadam, 'Tribunals' in The Oxford Handbook Of The Indian Constitution (Sujit Choudhry et al eds., (Oxford University Press New York, 2016), pp. 412-31 The earliest available effort suggesting reforms to handle arrears was the Justice Rankin Committee report in 1924. Since then, there have been a number of expert body reports, including the Law Commission of India. In India, the establishment of tribunals was done in 1941 by the colonial government. Post- Independence, tribunals were first created in the sphere of tax laws. The original Constitution referred to tribunals only incidentally in Articles 136 and 227, which specify that the Supreme Court and the High Courts respectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or retired Judge of a High Court should be done by a high-powered committee with a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India as its Chairman. This will ensure selection of proper and competent people to man these high offices of trust and help to build up reputation and acceptability. must be constituted with a sitting judge of the Supreme Court nominated by the Chief Justice of India to ensure the selection of competent adjudicators to the tribunals. Upholding the vires of the 1985 Act, the Court suggested several amendments to cure the defects with respect to the composition of the tribunal and the mode of appointment of the Chairperson, Vice-Chairperson and members which were to be carried out by 31 March, 1987. 12 Decisions subsequent to Sampath Kumar had required a fresh look by a larger Bench of this Court over the issues that had been decided. In L Chandra Kumar v Union of India (1997) 3 SCC 261 (‗Chandra Kumar ), a seven judge Bench of this Court revisited the challenge to the 1985 Act and the power conferred on the Parliament or the state legislatures by Articles 323A(2)(d) and 323B(3)(d), as the case may be, to exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature is empowered to prescribe qualifications for members, the Court held that superior courts in the country retain their power of judicial review over the prescribed qualifications to ensure that judicial functions are discharged effectively. The Court surveyed various enactments Administrative Tribunals Act 1985, Information Technology Act 2000, Companies Act 1956 as amended (Chapter 1B) and the qualifications prescribed in them for appointment as judicial and technical members and noted that the ‗speed at which the qualifications for appointment as members is being diluted is, to say the least, a matter of great concern for the independence of the judiciary. The Court cautioned that tribunals cannot become providers of sinecure to members of civil services, by appointing them as technical members. The Court emphasised that ‗impartiality, independence, fairness and reasonableness in decision making are the hallmarks of judiciary and laid down the eligibility criteria for judicial and technical members. Taking note of the recruitment conditions for judicial and technical members, tenure and service conditions, the Court upheld the creation of the NCLT and N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years, is eligible for reappointment for a further period of five years. Striking down the provision as unconstitutional, the Court held that the provision for reappointment would undermine the independence of the member who would presumably be constrained to decide matters in a manner that would ensure their reappointment. The Court noted that since the NTT had been vested with jurisdiction that earlier vested in the High Courts, all matters of appointment and extension of tenure must be shielded from the executive. The Court noted that upon the declaration of numerous provisions as unconstitutional, the remaining provisions were rendered ‗otiose and worthless . Hence, the 2005 Act was struck down in its entirety. 19 Pursuant to the enactment of the Companies Act 2013, a Constitution Bench of this Court in Madras Bar Association v Union of India (2015) 8 SCC 583 dealt with the contention that despite the directions issued in R Gandhi in respect of the provisions concerning the NCLT and the NCLAT, analogous provisions had been inserted in the 2013 Act without complying with those directions. The Court embarked on a comparison of various provisions of the Companies Act 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sess the independence of tribunals based on the certain parameters including (a) appointment of members; b) removal of members; (c) reappointments; (d) nodal ministry; and (e) proclivity to appoint judges/bureaucrats. B) Administrative concerns: lack of uniformity in regulation The report notes that an inconsistency in qualification requirements leads to differences in competencies, maturity and status of members. These inconsistencies are problematic with regard to the growing trend of tribunalisation. Further, the short tenure of members obviates the cultivation of ‗domain expertise , which can have an impact on the efficacy of tribunals. It is also recommended that the age of retirement be made uniform as uneven tenures hamper institutional continuity. The report notes the holding in L Chandra Kumar which criticizes the inconsistencies in the appointment process, qualification of members, age of retirement, resources and infrastructure of different tribunals. They can be attributed to tribunals operating under different ministries. The report affirms the observation in the judgment that a single nodal authority or ministry is required for the administration of tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been agreed upon by both the Houses, either without amendment or with such amendments as agreed. The President is conferred with the constitutional authority to convene a joint sitting of both the Houses of Parliament in order to deliberate upon and vote on a Bill which is not a Money Bill 15 . Special provisions are engrafted into the Constitution for the passage of Money Bills. Unlike an Ordinary Bill which can originate in either House of Parliament, a Money Bill cannot be introduced in the Council of States. Article 109 specifies the procedure for the passage of a Money Bill. Article 109 reads thus: ―109. (1) A Money Bill shall not be introduced in the Council of States. (2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the House of the People with its recommendations and the House of the People may thereupon either accept or reject all or any of the recommendations of the Council of States. (3) If the House of the People accepts any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 110 (1) can be introduced or moved only on the recommendation of the President and such a Bill shall not be introduced in the Rajya Sabha. The text of Article 117 (1) speaks of Money Bills and other Financial Bills as classes of Bills which can originate only in the Lok Sabha. Money Bills : Article 110 Article 110 contains a definition of Money Bills in the following terms : ―110. (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely: (a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India; (c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund; (d) the appropriation of moneys out of the Consolidated Fund of India; (e) the declaring of any expenditure to be expenditure charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney Bills in the following terms : ―1. Powers of House of Lords as to Money Bills. (1) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill. Section 1(2) defines the expression Money Bill in the following manner : ―1. (2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, the National Loans Fund or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous practical difficulty normally arises in deciding whether a particular bill is or is not a ‗Money Bill ; and criticism has seldom been voiced of the Speaker s action in giving or withholding a certificate. A bill which contains any of the enumerated matters and nothing besides is indisputably a Money Bill‟. If it contains any other matters, then, unless these are subordinate matters incidental to‟ and of the enumerated matters so contained in the bill, the bill is not a Money Bill‟. Furthermore, even if the main object of a bill is to create a new charge on the Consolidated Fund or on money provided by Parliament, the bill will not be certified if it is apparent that the primary purpose of the new charge is not purely financial. The Speaker does not consider the question of certifying a bill until it has reached the form in which it will leave the House of Commons, and has declined to give an opinion on whether the acceptance of a proposed amendment would prevent a bill for being certified as a Money bill. Similarly, in committee the chairman has declined to anticipate the Speaker s decision in this matter or to allow the effect of an amendment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly is dangerous, because if the Bill does all these things and at the same time does something else also it will not be a money Bill. I do not know what the intention of the Drafting Committee is but I think this aspect of the article should be borne in mind. Constituent Assembly Debates (20 May 1949) The amendment was however negatived. 29 Article 110 of the Constitution defines a Money Bill for the purposes of the Chapter. A Bill is deemed to be a Money Bill ―if it contains only provisions dealing with any of the matters described in clauses (a) to (g). The word ―only is of crucial significance. The consequence of the use of the expression ―only is to impart exclusivity. In other words, a Bill will be deemed to be a Money Bill only if it falls within the description of the matters enunciated in clauses (a) to (g). If the Bill contains matters which are unrelated to or do not fall within clauses (a) to (g), it is not a Money Bill. Article 110 (2) supports this construction since it indicates that a Bill shall not be deemed to be a Money Bill only for the reason that it provides for: (i) Imposition of fines or other pecuniary penalties; (ii) De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall certify any Bill which, in his opinion, is a Money Bill to be a Money Bill, and his certificate shall, subject to the subsequent provisions of this section, be final and conclusive. 2. Seanad ireann [Upper House in Ireland], by a resolution, passed at a sitting at which not less than thirty members are present, may request the President to refer the question whether the Bill is or is not a Money Bill to a Committee of Privileges. 3. If the President after consultation with the Council of State decides to accede to the request he shall appoint a Committee of Privileges consisting of an equal number of members of D il ireann and of Seanad ireann and a Chairman who shall be a Judge of the Supreme Court: these appointments shall be made after consultation with the Council of State. In the case of an equality of votes but not otherwise the Chairman shall be entitled to vote. 4. The President shall refer the question to the Committee of Privileges so appointed and the Committee shall report its decision thereon to the President within twenty-one days after the day on which the Bill was sent to Seanad ireann. 5. The decision of the Committee shall be fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. The draftspersons of the Constitution carefully did not incorporate an exclusion from judicial review, in respect of a certificate issued by the Speaker under clause (3) of Article 110. Finality, in other words, operates as between the Upper and the Lower Houses and does not exclude judicial review by a constitutional court. 34 The interpretation that we have adopted is supported for yet another reason. In contexts where the Constitution intends to confer immunity from judicial review, specific words to that effect are used. The expression ―shall not be called in question in any court is, for instance, utilized in Article 329 (a), Article 243-O and Article 243ZG. These Articles read thus: ―329. Bar to interference by courts in electoral matters. Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court. ―243-O. Bar to interference by courts in electoral matters. Notwithstanding anything in this Constitution (a) the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isqualification on ground of defection. (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman, or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (Emphasis supplied) In Union of India v Jyoti Prakash Mitter (1971) 1 SCC 396, a six judge Bench of this Court held that under Article 217 (3), the President performs a judicial function and a decision rendered is subject to judicial review on stipulated grounds : ―32. The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker under Article 110 (3) does not grant immunity from judicial review. Matters of procedure and substantive illegalities 37 Article 118 of the Constitution allows each of the Houses of Parliament to make rules for regulating their procedure and the conduct of business, subject to the provisions of the Constitution. Article 118 provides thus : ―118. Rules of procedure. (1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. (2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the legislature of the Dominion of India shall have effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be. (3) The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letely unrelated to any of the matters referred to in clauses (a) to (e) of Article 3 an amendment was to be proposed and accepted changing (for example) the name of a State. We do not think that we need answer such a hypothetical question except merely to say that if an amendment is of such a character that it is not really an amendment and is clearly violative of Article 3, the question then will be not the validity of proceedings in Parliament but the violation of a constitutional provision. That, however, is not the position in the present case. 39 Article 122 (1) provides immunity to proceedings before Parliament being called into question on the ground of ―any alleged irregularities of procedure . In several decisions of this Court which construed the provisions of Article 122 and the corresponding provisions contained in Article 212 for the state legislatures, a distinction has been drawn between an irregularity of procedure and an illegality. Immunity from judicial review attaches to the former but not to the latter. This distinction found expression in a seven judge Bench decision of this Court in Special Reference No. 1 of 1964 (Powers, Privileges and Immunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict the court's jurisdiction to examination of the Parliament's procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of ―expressio unius est exclusio alterius (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of irregularity of procedure does not make taboo judicial review on findings of illegality or unconstitutionality. *** 398. the court will decline to interfere if the grievance brought before it is restricted to allegations of ―irregularity of procedure . But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105 (Emphasis supplied) 40 The fundamental constitutional basis for the distinction between an irregularity of procedure and an illegality is that unlike in the United Kingdom where Parliamentary sovereignty governs, India is governed by constitutional supremacy. The legislative, executive and judicial wings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings in a legislature of a State from being called in question on the ground of any alleged irregularity of procedure and Article 255 lays down that requirements as to recommendation and previous sanction are to be regarded as matters of procedure only. 42 The ratio of the decision in Mangalore Beedi is that the substitution of coinage did not amount to an enhancement of tax. Hence, the provisions of Article 199 pertaining to a Money Bill were not attracted. Once that was the finding, it was not necessary for the decision to rule on whether the certificate of a Speaker under Article 199 (3) (corresponding to Article 110 (3)) is immune from judicial review. The ratio of the decision is that a new coinage does not amount to an enhancement of tax and hence a Bill providing for the substitution of coinage is not a Money Bill. The observations which are extracted above proceed on an assumption, namely that even assuming that it was a taxing measure, its validity could not be challenged on the ground of an alleged irregularity of procedure. This part of the observations is evidently not the ratio of Mangalore Beedi. 43 Subsequently in Mohd. Saeed Siddiqui, a three judge B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the appellants do not render much assistance, for the introduction of a Bill, as has been held in Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] , comes within the concept of ―irregularity and it does come with the realm of substantiality. What has been held in Special Reference No. 1 of 1964 [Powers, Privileges and Immunities of State Legislatures, In re (Special Reference No. 1 of 1964), AIR 1965 SC 745] has to be appositely understood. The factual matrix therein was totally different than the case at hand as we find that the present controversy is wholly covered by the pronouncement in Mohd. Saeed Siddiqui and hence, we unhesitatingly hold that there is no merit in the submission so assiduously urged by the learned counsel for the appellants. 45 The three judge Bench decision in Mohd Saeed Siddiqui relied on Mangalore Beedi as laying down the principle that a certificate of the Speaker that a Bill is a Money Bill is immune from judicial review. The decision in Mangalore Beedi, as we have seen, was based on a finding by the Constitution Bench that the substitution of a new coinage did not constitute an enhancement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Bench (K S Puttaswamy v Union of India). (2019) 1 SCC 1 (―Puttaswamy ) Justice A K Sikri, speaking for three of the five judges of the Constitution Bench, analysed the provisions of the Aadhaar Act 2016 on the basis of two fundamental precepts: first, the importance of the Rajya Sabha in a bicameral legislature as ―succinctly exemplified Puttaswamy at para 462 by the decision in Kuldip Nayar v Union of India (2006) 7 SCC 1 (―Kuldip Nayar ) and second, the Rajya Sabha as an ―important institution signifying the constitutional federalism Puttaswamy at para 463. 48 Having enunciated these principles, Justice Sikri emphasised the need for the passage of a Bill by both the Houses of Parliament which, according to the learned Judge, is a ―constitutional mandate Puttaswamy at para 463. The only exception, the majority observed, is contained in Article 110. As a result, Article 110 being an exception to the scheme of bicameralism had to be given a ―strict construction Puttaswamy at para 463. The majority held thus: ―463. The Rajya Sabha, therefore, becomes an important institution signifying constitutional federalism. It is precis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23(2)(h) and Section 54 were held to be incidental to the main provision and covered by Article 110(g). Section 57, which permitted the use of Aadhaar by private entities for other purposes, was held to be unconstitutional. Having thus analysed the provisions of the Bill, the majority held: ―472. For all the aforesaid reasons, we are of the opinion that Bill was rightly introduced as Money Bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the Bill being Money Bill is subject to judicial review or not, whether a provision which does not relate to Money Bill is severable or not. We reiterate that main provision is a part of Money Bill and other are only incidental and, therefore, covered by clause (g) of Article 110 of the Constitution. (Emphasis supplied). 50 Both Mr Arvind Datar, learned amicus curiae and the learned Attorney General for India have highlighted the apparent inconsistency among the observations contained in paragraphs 463, 464 and 472 of the judgment. For, paragraph 464 rejects the submissions of the Union of India that the Speaker s decision is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the majority would indicate that: (i) Article 110 has been construed to be an exception to the principle of bicameralism and, therefore, the provision must (it has been held) receive strict interpretation; (ii) Section 7 constituted the core provision of the Aadhaar Bill which was referable to Article 110 while the other provisions were incidental; and (iii) Section 57 was held to be unconstitutional in so far as it allowed the use of the Aadhaar platform by private entities including corporate bodies. The observations in para 472 cannot, therefore, be construed to mean that the majority desisted from expressing a final view on justiciability. 53 The judgment of Justice DY Chandrachud specifically holds that the decision of the Speaker to certify a Bill as a Money Bill is not immune from judicial review. After tracing the constitutional history of Article 110 including the provisions of the Parliament Act 1911 in Britain and Section 37 of the Government of India Act 1935, the judgment places reliance on the construction placed on the provisions of Article 122 and the corresponding provision in Article 212 in (i) Special Reference; (ii) Ramdas Athawale ; and (iii) Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Speaker of the House of People, can be no exception. The decision of the Speaker of the Lok Sabha in certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles. Nor can such a decision of the Speaker take leave of constitutional morality. 54 Justice Ashok Bhushan, in his separate opinion, specifically held that the decision of the Speaker in certifying a Bill as a Money Bill is capable of judicial review. The learned judge held thus: ―901. We have noticed the Constitution Bench judgments in Kihoto Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] and Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184] that finality of the decision of the Speaker is not immuned from Judicial Review. All Bills are required to be passed by both Houses of Parliament. Exception is given in case of Money Bills and in the case of joint sitting of both Houses. In event, we accept the submission of learned Attorney General that certification by Speaker is only a matter of procedure and cannot be questioned by virtue of Article 122(1), any Bill, which does not fulfil the essential constitutional condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overall reading of the judgment of Justice Sikri, it is not possible to accede to the submission of the learned Attorney General that the issue of the reviewability of the certificate of the Speaker is left at large by the decision of the majority. In any event, in view of the issue having arisen in the present case, we have dealt with the aspect of judicial review independently of the decision in Puttaswamy. E Role of the Rajya Sabha 57 The Rajya Sabha consists of not more than two hundred and fifty members, twelve nominated by the President (from persons with special knowledge or practical experience in literature, science, art and social service) and not more than two hundred and thirty eight representatives of the States and Union Territories 44 . The Fourth Schedule specifies the manner in which allocation of seats is made in the Rajya Sabha. The elected members of the legislative assembly of every state elect the representatives of the state in the Rajya Sabha in accordance with ―the system of proportional representation by means of the single transferable vote . Representation of the Union Territories is provided by a law enacted by Parliament. 58 The Rajy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Third: Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Fourth: The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies of the States, and (b) the elected members of both Houses of Parliament Directly the State Legislatures have substantial voting power in electing the President; that power is increased indirectly through the Council of States, which is elected by the Legislative Assemblies of States. 61 The Rajya Sabha Secretariat has, in its publication titled ―Second Chamber in Indian Parliament: Role and Studies of Rajya Sabha , emphasised the position of the Rajya Sabha as an institution sensitive to the aspirations of the states, contributing in that capacity to strengthening the federal structure of the nation. The publication emphasises some of the special powers possessed by the Rajya Sabha: ―(i) Article 249 of the Constitution provides that Rajya Sabha may pass a resolution, by a majority of not less than twothirds of the Members present and voting to the effect that it is necessary or expedient in the national interest that Parliament should make a law with respect to any matter enumerated in the State List. Then, Parliament is empowered to make a law on the subject specified in the resolution for the whole or any part of the territory of India. Such a resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the makers of the Constitution to ensure a wider scrutiny of legislative proposals. As a second chamber of Parliament, it acts as a check on hasty and ill-conceived legislation, providing an opportunity for scrutiny of legislative business. The role of the Rajya Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power. The Upper Chamber complements the working of the Lower Chamber in many ways. The Rajya Sabha acts as an institution of balance in relation to the Lok Sabha and represents the federal structure [ In S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1998] of India. Both the existence and the role of the Rajya Sabha constitute a part of the basic structure of the Constitution. The architecture of our Constitution envisions the Rajya Sabha as an institution of federa bicameralism and not just as a part of a simple bicameral legislature. Its nomenclature as the ―Council of States rather than the ―Senate appropriately justifies its federal importance. 63 Bicameral legislatures have a significant constitutional role particularly in the context of federal structures. The Rajya Sabha, as our Constitution em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenditure from the Consolidated Fund of India and cannot be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill. In all other respects this category of Bills is, just like ordinary Bills, so that such a Financial Bill can be introduced in Rajya Sabha, amended by it or a joint sitting can be introduced in Rajya Sabha, amended by it or a joint sitting can be held in case of disagreement between the Houses over such a Bill. There is, in other words, no limitation on the power of Rajya Sabha in respect of such Financial Bills. The above classification re-emphasises the distinction of a Financial Bill with a Money Bill, which is a Bill which contains ‗only provisions of the description specified in sub-clauses (a) to (g) of Article 110(1). 65 The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an indispensable constitutive unit of the federal backbone of the Constitution. Potential differences between the two houses of the Parliament cannot be resolved by simply ignoring the Rajya Sabha. In a federal polity such as ours, the efficacy of a constitutional body created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Business in the Lok Sabha stipulates that: ―80. Admissibility of amendments. The following conditions shall govern the admissibility of amendments to clauses or schedules of a Bill: (i) An amendment shall be within the scope of the Bill and relevant to the subject-matter of the clause to which it relates. During the course of the discussion, the Speaker overruled the objection against the inclusion of the proposed amendments dealing with non-fiscal subjects. The Lok Sabha Debates elucidate: ―Hon. Members would recall that during last year when similar objections were raised at the time of consideration of the Finance Bill, 2016, I had observed that as per rule 219, the primary object of a Finance Bill is to give effect to the financial proposals of the Government. There is no doubt about it. At the same time, this Rule does not rule out the possibility of inclusion of non-taxation proposals. Therefore, I have accepted this. The Finance Bill may contain non-taxation proposals also So, incidental provisions can be made. That is why, keeping in view that rule 2019 does not specifically bar inclusion of non-taxation proposals in a Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Board of India Act 1992 xxii. The Recovery of Debts Due to Banks and Financial Institutions Act 1993 xxiii. The Armed Forces Tribunal Act 2007 xxiv. The National Green Tribunal Act 2010 72 Section 183 provides: ―183. Notwithstanding anything to the contrary contained in the provisions of the Acts specified in column (3) of the Eighth Schedule, on and from the appointed day, provisions of section 184 shall apply to the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the said Schedule: Provided that the provisions of section 184 shall not apply to the Chairperson, Vice Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or, as the case may be, Member holding such office as such immediately before the appointed day. The Eighth Schedule contains a list of 19 Tribunals together with the corresponding enactments under which they were constituted. The effect of Section 183 is to override the provisions of those enactments and to stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed in the Rules made by the Central Government not exceeding five years and that a Member would be eligible for reappointment. An upper age limit is prescribed by the second proviso. Section 185 (1) stipulates that Chairpersons, Presidents or Vice Chairpersons, Vice Presidents, Presiding Officers and Members of the Tribunals or Appellate Tribunals who hold office before the appointed day shall cease to do so and be entitled to compensation not exceeding three months pay and allowances for the premature termination of the term of office or the contract of service. 74 The learned Attorney General for India submitted that Part XIV of the Finance Act 2017 is sustainable with reference to sub-clauses (c), (d) and (g) of clause (1) of Article 110. The submission is that the certification by the Speaker is of the entire Finance Bill when it was transmitted to the Rajya Sabha. The Attorney General urged that payment of salaries is made out of the Consolidated Fund of India. Once this be the position, the other provisions of Part XIV are, it was urged, incidental in nature. It is argued that salaries, allowances and pension will have a direct nexus with the Consolidated Fund of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in Article 109, the substantive procedure governing Ordinary Bills under Articles 107 and 108 has been rendered otiose. If the provisions contained in Part XIV were to be enacted in the form of an Ordinary Bill, the Rajya Sabha would have a vital voice in deliberating and discussing on the nature of the legislative proposals. Part XIV contains provisions which lie outside the domain permissible under Article 110. 77 We are unimpressed with the submissions of the learned Attorney General that since salaries are payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c) and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include qualifications and process for appointment terms of office and terms and condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated in sub-clauses (a) to (f), but have only an incidental bearing on the matters enumerated in sub-clauses (a) to (f). Implicit in the term ―incidental is the relation between the principal subject matters of the bill which must be referable to sub-clauses (a) to (f) and other matters. Every provision of a bill which is claimed to be a Money Bill must directly pertain to any of the matters enumerated in clauses (a) to (f). Where it is claimed that a provision falls within the ambit of sub-clause (g), the provision must depend on or be appurtenant ―to any of the matters specified in sub-clauses (a) to (f). 82 Part XIV of the Finance Act 2017 canvasses a range of amendments which include qualifications and process for appointment of members of tribunals, terms of office and terms and conditions of service including salaries, allowances, resignation and removal which are not referable to sub-clauses (a) to (f) of clause (1) of Article 110. Almost every government action involves an increase or decrease of expenditure which may be relatable to the Consolidated Fund of India. Accepting the argument urged would amount to inverting sub-clause (g) and allowing any bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Court to tread with caution since certification of a Bill as a Money Bill, as he submits, pertains to the internal functioning of Parliament. Judicial review, it was submitted, would violate the separation of powers. The submission overlooks the fundamental position that the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an exception which has been carved out by the Constitution to the constitutional requirements accompanying the passage of ordinary legislation. In passing the Bill as a Money Bill, the immediate impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of legislation. 87 The Rajya Sabha as a legislative institution represents the voice, concerns and aspirations of Indian federalism. The reduction of the role of the Rajya Sabha in the case of a Money Bill was engrafted by the draftspersons of the Constitution with a specific purpose. In their view, Money Bills should appropriately be reserved for the authority of the Lower House which consists of directly elected representatives of the people. But to regard a Bill which is not a Money Bill as one which passes muster un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Member, Revenue Member, Technical Member, Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority as specified in column (2) of the Eighth Schedule of the Finance Act, 2017 (7 of 2017). 90 Rule 3 prescribes the qualifications for appointment to those tribunals which are specified in Column 3 of the Schedule. Rule 4 provides that the method of recruitment is specified in Column 4 of the Schedule. Rule 7 provides for the removal of a member from office by the Central Government ―on the recommendation of a committee constituted by it in this behalf . Rule 8 provides for the procedure for enquiry into an alleged misbehaviour or incapacity of a member. It contemplates a preliminary scrutiny by the Ministry or the Department of the Government of India under which the tribunal or appellate tribunal is constituted or established. Upon finding that there are reasonable grounds in an inquiry, a reference is made to the committee constituted under Rule 7. After the conclusion of the enquiry, the committee is to submit its report to the Central Government with its findings. Rule 9 provides for the term of office as specified in Column 5 of the Schedule with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts is a negation of judicial independence. 91 Sub-rule 2 of Rule 4 of the 2017 Rules stipulates that the Secretary to the Government of India in the Ministry or Department shall be the Convener of the Search-cum-Selection Committee. In R Gandhi, the Court specifically issued the following directions in regard to the constitution of the Selection Committees: ―(viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee Chairperson (with a casting vote); (b) A Senior Judge of the Supreme Court or Chief Justice of High Court Member; (c) Secretary in the Ministry of Finance and Company Affairs Member; and (d) Secretary in the Ministry of Law and Justice Member. (Emphasis supplied) Significantly, Section 10 (FX) which was inserted into the Companies Act 1956 by the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature. For all the reasons recorded hereinabove, we hereby declare Section 7 of the NTT Act, as unconstitutional. 93 The constitution of the Search-cum-Selection committees as stipulated in the Schedule to the 2017 Rules cannot pass constitutional muster under a system governed by the rule of law that accords primacy to the independence of the judiciary. Independence of the judiciary requires that judicial functioning be free from interference by the other two organs of the state. The Central Government is the largest litigant before the tribunals constituted under various statutes. The independent functioning of the tribunals stands compromised where the executive has the controlling authority in the selection of members to the tribunals. The executive is often a litigant before and has an interest in the disputes which are adjudicated by the tribunals. The constitution of the Search-cum-Selection committees stipulated in the 2017 Rules violates the principle of judicial independence and the directions issued by this Court in R Gandhi and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the effect of undermining the independence of the Chairperson/Members of NTT. Every Chairperson/Member appointed to NTT would be constrained to decide matters in a manner that would ensure his reappointment in terms of Section 8 of the NTT Act. His decisions may or may not be based on his independent understanding. We are satisfied that the above provision would undermine the independence and fairness of the Chairperson and Members of NTT. Since NTT has been vested with jurisdiction which earlier lay with the High Courts, in all matters of appointment, and extension of tenure, must be shielded from executive involvement. The reasons for our instant conclusions are exactly the same as have been expressed by us while dealing with Section 5 of the NTT Act. We therefore hold that Section 8 of the NTT Act is unconstitutional. (Emphasis supplied) Rule 20 vests the Central Government with vast powers to relax the provisions of the applicable rules: ―Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however slight lest we become unwitting victims of the darkness. In Madras Bar Association, Justice Rohinton Nariman, in the course of his concurring judgment, adverted to a decision of Lord Atkin: ―178. In Proprietary Articles Trades Assn. v. Attorney General for Canada [1931 AC 310 (PC)] , Lord Atkin said: (AC p. 317) ― Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires; nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. 98 We find that though the decision in R Gandhi was delivered in 2010 and in Madras Bar Association in 2014, the same anomalies have persisted. An attempt has been made to dilute judicial independence by a creeping assertion of executive power. This is unconstitutional. F.3 Severability 99 The learned Attorney General submitted that the certification of the Speaker of the Bill as a Money Bill attaches to the entirety of the Finance Bill. Hence, it was urged, that the consequence of accepting the submission of the petitioners would result in the invalidation of the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verability should be extended in dealing with taxing statutes. After adverting to these decisions in Chamarbaugwalla, Justice Venkatarama Ayyar concluded: ―21 The resulting position may thus be stated: When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions. The principles which govern the exercise of the doctrine of severability have been formulated thus: ―22 1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2 pp. 176- 177. 2. If the valid and invalid provisions are so inextricably mixed up tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent, have enacted the valid parts of the Finance Act 2017 if it had known that Part XIV is invalid. The valid and invalid parts are not so inextricably linked that the invalidity of Part XIV should result in the invalidity of the rest. Nor is Part XIV a part of a composite scheme linked to the other parts of the Finance Act 2017. Even after the excision of Part XIV the remaining part of the Finance Act would still survive on its own. Hence, Part XIV of the Finance Act 2017 can be excised from the Act. 102 Finally, a fervent plea was made by the learned Attorney General to the effect that even though some provisions contained in the Rules framed on 1 June 2017 may run contrary to the principles enunciated by this Court in R Gandhi and Madras Bar Association, the Central Government would be willing to proceed on the basis of the interim orders which were passed by this Court during the pendency of the proceedings with certain modifications. We are unable to accept the submission. Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill. The rules framed by the Central Government are unconstitutional on the ground that they violate the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Justice of India; (ii) Two serving Chief Justices or judges of the High Court nominated by the Chief Justice of India; (iii) Two members to be nominated by the Central Government from amongst officers holding at least the rank to a Secretary to the Union Government: one of them shall be the Secretary to the Department of Justice who will be the exofficio convener; and (iv) Two independent expert members to be nominated by the Union government in consultation with the Chief Justice of India. 106 The senior-most among the Judges nominated by the Chief Justice of India shall be designated as the Chairperson of the NTC. 107 While the setting up of the NTC is within the competence of the legislature, it must be ensured that the guidelines that have been laid down by this Court to ensure the independence and efficient functioning of the tribunal system in India are observed. The independence of judicial tribunals is an inviolable feature of the basic structure of the Constitution. The procedure of selection, appointment, removal of members and prescription of the service conditions of tribunal members determine the independence of the tribunals. As we have hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicatory tribunals are intended to fulfil the objects of legislation enacted by Parliament, be it in the area of consumer protection, environmental adjudication, industrial disputes and in diverse aspects of economic regulation. Defining the qualifications necessary for appointment of members constitutes the core, the very essence of the tribunal. This is an essential legislative function and cannot be delegated to the rule making authority of the central government. It is for the legislature to define the conditions which must be fulfilled for appointment after assessing the need for domain specific knowledge. JUDGMENT Deepak Gupta, J. I have had the privilege of going through the detailed and erudite judgments of the Chief Justice and brother Chandrachud, J. 2. Since the entire gamut of facts, submissions and laws have been dealt with in the judgment of Chief Justice, for the sake of brevity, it would not be necessary to set out all the facts and contentions in detail. 3. Reference in this judgment to Tribunal will include tribunal, appellate tribunal or other authorities referred to in Part XIV of the Finance Act, 2017. Reference to Chairpersons/Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I am, however, unable to persuade myself to agree with the Chief Justice that Section 184 of the Finance Act of 2017 does not suffer from the vice of excessive delegation. I am also of the view that though the issue with regard to the Money Bill may be referred to a larger bench of 7 judges, since the correctness of the law laid down in L. Chandrakumar v. Union of India (1997) 3 SCC 261 has not been doubted, there is no need to refer this matter to a bench of 7 judges. 7. I also feel that some specific directions need to be given for appointment of a body to carry out judicial impact assessment. It may also be necessary to lay down some parameters or reference points for such a body to look into. I am of the view that since the Government till date has not followed the recommendation of 7- Judge Bench of this Court in L. Chandra Kumar (supra) that there should be a wholly independent agency for the administration of all tribunals, some directions in this regard are required. Lastly, I feel that a direction needs to be given to constitute a body to select the Chairpersons/Members of the Tribunals. 8. Before entering into a detailed discussion on the issues involved, I would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic republic is also a part of the Preamble. The ultimate power under our Constitution resides with the people and not those holding positions of power. 12. The rule of law is the golden thread which runs through our Constitution. This golden thread binds together the various chapters of the Constitution dealing with Citizenship, Fundamental Rights, the Union, the States, the Panchayats, Scheduled and Tribal Areas, Relations between Union and States, Trade, Commerce and Intercourse within the Territory of India, Services under the Union and States etc. Each of these facets amongst others are governed not only by the Constitution but by the laws. The oath, to which each one of us, holding Constitutional posts, subscribes enjoins us to uphold the Constitution and the laws. This is the rule of law. The bedrock of our democracy is the rule of law and not the rule of men. Anywhere, anytime, when ordinary people are given the chance to choose, the choice is always the same; freedom, not tyranny; democracy, not dictatorship; rule of law, not the rule of men. 13. One of the essential ingredients of both democracy and rule of law is an independent and fearless judiciary. A free and vib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunals being substitutes for courts must also meet the expectations of our founding fathers and be totally independent and fearless. 16. Unfortunately, the working of some of the tribunals leaves much to be desired. Not all the problems arise because of the persons who run the tribunals. Many difficulties arise because of huge vacancies, few benches, financial crunch and dependence of the tribunals on the departments, which sadly administer the tribunals. Some of the tribunals are virtually subjugated to the departments as far as the administrative matters are concerned and this also affects the independence of the judiciary. Judicial independence not only means independence to take the right decisions but functional independence is equally important. Perceptions are also very important. What does the litigating public appearing before the tribunal feel? Is the tribunal functioning like a wing of the government or as an independent body? If there has to be separation of powers then these tribunals must have functional autonomy to run themselves as they best feel like. 17. In this background, I shall deal with the various issues culled out by the Chief Justice. Issue No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also very relevant and it reads as follows: 26. We are also unable to subscribe to the view that if the legislature can repeal an enactment, as it normally can, it retains enough control over the authority making the subordinate legislation and, as such, it is not necessary for the legislature to lay down legislative policy, standard or guidelines in the statute. The acceptance of this view would lead to startling results. Supposing the Parliament tomorrow enacts that as the crime situation in the country has deteriorated, criminal law to be enforced in the country from a particular date would be such as is framed by an officer mentioned in the enactment. Can it be said that there has been no excessive delegation of legislative power even though the Parliament omits to lay down in the statute any guideline or legislative policy for the making of such criminal law? The vice of such an enactment cannot, in our opinion, be ignored or lost sight of on the ground that if the Parliament does not approve the law made by the officer concerned, it can repeal the enactment by which that officer was authorised to make the law. This makes it clear that merely because the subordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice- Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice- Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed, (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are no guidelines for the essential qualifications, even though there are some guidelines with regard to the terms and conditions of services of Chairpersons/Members of the Tribunals. 30. I am in respectful disagreement with the Chief Justice that the objects of the parent enactments and the law laid down by this Court in R. K. Jain v. Union of India (1993) 4 SCC 119, L. Chandra Kumar (supra), Union of India v. Madras Bar Association (2010) 11 SCC 1, Madras Bar Association v. Union of India (2014) 10 SCC 1, Madras Bar Association v. Union of India (2015) 8 SCC 583, Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. (2016) 9 SCC 103 in essence should be read as the guidelines. One would expect the Union Government to abide by the directions of this Court. However, this expectation has been belied by this very enactment which violates every principle of law laid down by this Court and, as held in the judgments of both my brothers, the Rules framed by the delegatee are violative of the law laid down by this Court. In this background, it is apparent that both the delegator and the delegatee felt that they were not bound by these judgments. This is also apparent from the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that as laid down in L. Chandra Kumar (supra), there must be a single independent nodal agency for administering all the tribunals. The 7-Judge Bench of this Court held that all tribunals should as far as possible be under a single nodal agency. Until such a nodal agency is set up it was felt that the Ministry of Law and Justice would be the most appropriate Ministry for this purpose. 36. There are various reasons why there should be one nodal agency. Tribunals are facing many problems like lack of manpower, very few benches, vacancies lying unfilled for long period, financial dependence on the department which may be litigating before the tribunal etc. These are ills which can be avoided if Tribunals fall under one umbrella organisation. One umbrella organisation will be better equipped to understand the problems faced by all the Tribunals. This could lead to standardization of Tribunals and a uniform approach to the needs of each tribunal. A large number of tribunals, especially those cast with the duty of discharging adjudicatory functions have been constituted with a view to replace the courts and in many cases the jurisdiction earlier exercised by the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delays plague the tribunals, a client will not hurriedly approach a tribunal even if he has a genuine grievance. Amongst the many tribunals set up, the tax tribunals have been probably the most successful. In my view, one of the reasons why the tax tribunals have been successful is that the recruitment of members of these tax tribunals is normally done at a younger age and there is scope of career progression not only within the tribunal but also from the tribunals to the High Courts. This can only happen if we recruit younger and competent people rather than retired persons. Another reason for the success of the tax tribunals is that the litigant is either the revenue or an assessee, both of whom have the wherewithal to fight cases. Similarly, in administrative tribunals it is government servants mainly who are involved. Commercial tribunals also deal with the litigants who normally have sufficient finances. But now we have other tribunals like the NGT which may be approached by poor villagers. 40. The Central Administrative Tribunal (CAT) was set up in the year 1985. It can definitely be termed as one of the better functioning tribunals. However, even this tribunal has only 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of only 5 members. The result is that no hearings are taking place in the Zonal Benches or the Circuit Benches. We have been informed that cases are taken up by video conferencing. Video conferencing can definitely be used as a tool to hold hearings in some cases but initial filing and hearings must as far as possible be done in open Court if the public is to have faith in the institution. Open hearings are essential to build trust and confidence in the community. Members of the public will have faith only in those tribunals and courts which are open to the public. Presently, the situation is such that if someone from Andaman and Nicobar Islands wants to raise some issue before the NGT he will have to come at least to Calcutta to file a case, whereas earlier he could have filed a case before the Circuit Bench of the Calcutta High Court at Port Blair. Here also, the hearing, if any, will be conducted through video conferencing. There is no bench of the NGT functioning in the North-East covering as many as 8 States. Similarly, there is no bench functioning in the environmentally and ecologically fragile States of Himachal Pradesh and Uttarakhand and the Union Territories of Lad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulk of work will be captured by those practicing in Delhi or in those State capitals where benches of the tribunals are set up. Instead of taking justice to the common man, we are forcing the common man to spend more money, spend more time and travel long distances in his quest for justice, which is his fundamental right. 45. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar (supra) to Madras Bar Association, 2010 (supra) have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which is the first promise made in the Preamble. Therefore, I am of the view that in whichever State/Union Territory the bench of a particular tribunal is not established or functioning, the litigants of that State will have a right to invoke the extraordinary writ jurisdiction of the jurisdictional High Court under Article 226 of the Constitution for redressal of their grievances. They cannot be expected to go to far off distant places and spend huge amounts of money, much beyond their means to ventilate their gri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependence. They shall also have aspirations of reaching the higher levels, which would be an inducement for a better work culture. 48. If there are tribunal services and there is provision for appeal within the hierarchy of the tribunals and the High Courts exercise their writ jurisdiction or if in some matters appeals are provided to the High Courts in the first instance, many of the ills which plague the system may be overcome. If the aforesaid system is followed then the question of appointing retired Judges or bureaucrats will not arise. Learned amicus curiae in his note has raised an issue that tribunals should not become a haven for retired persons. In my view, there should normally be no post retiral sinecures. Though the ideal situation would be to have no appointments from retired judges or bureaucrats, this may not be possible in the near future because we have no tribunal services and most of the posts at this stage may have to be filled from amongst retired persons. At the same time, an effort has to be made to ensure that in the foreseeable future the number of retired persons being reappointed is brought down and more persons from within the tribunal services are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law laid down in L. Chandra Kumar (supra), the High Courts should have the jurisdiction to entertain writ petitions against the orders of the tribunals. This will reduce the burden on the Supreme Court. Even more importantly, the High Courts, when they entertain these matters, will deal with them within the limited scope of writ jurisdiction. If the jurisdiction of the High Courts is bypassed by providing for appeals directly to the Supreme Court, soon a stage will come when we will have no High Court Judges who would have heard matters in various jurisdictions. It would be virtually impossible for them to handle such matters in the Supreme Court where the tenure of a Judge is on an average only about 4 years. 52. The Judicial Impact Assessment Committee can also after assessment recommend that some tribunal(s) should be wound up and the jurisdiction of that tribunal(s) be given back to civil courts or to the High Courts or to some other tribunal. It can also suggest the merger of two or more tribunals. 53. The next issue is who should carry out the judicial impact assessment. In my view, the Judicial Impact Assessment Committee should comprise of two retired judges of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-officio convener. One expert member can be co-opted by the by full time members. This expert member must have expertise and experience in the field/jurisdiction covered by the tribunal to which appointments are to be made. 57. At the end I would like to quote what Dr. B. R. Ambedkar said while addressing the Constituent Assembly on 25.11.1949. In his words:- Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. One can only hope that keeping these thoughts in mind a system is developed which ensures selection of people having impeccable integrity, who are totally inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill; (b) if the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed; and the decision of the person presiding as to the amendments which are admissible under this clause shall be final. (5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that a dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein. 16 Article 117 : (1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 shall not be introduced or moved except on the recommendation of the President and a Bill making such provision shall not be introduced in the Council of States: Provided that no recommendation shall be required under this clause for the moving of an amendment making provision for the reduction or abolition of any tax. (2) A Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sist of persons having special knowledge or practical experience in respect of such matters as the following, namely:- Literature, science, art and social service. (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5) The representatives of the [Union territories] in the Council of States shall be chosen in such manner as Parliament may by law prescribe. 45 83. (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. (2) The House of the People, unless sooner dissolved, shall continue for 1[five years] from the date appointed for its first meeting and no longer and the expiration of the said period of 1[five years] shall operate as a dissolution of the House: Provided that the said period may, while a Proclamation of Eme ..... 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