The Centre has defended in the Supreme Court the validity of the new tribunal reforms law, which regulates issues such as appointment and tenure of presiding and other members in tribunals, and said the “independence of the judiciary” is not a ground that can be used for testing the statutes.

The Centre’s defence to the Tribunal Reforms Act, 2021, assumes significance in view of the fact that a bench headed by Chief Justice N V Ramana had termed as “serious issue” the passage of the Bill on tribunals with the provisions, struck down earlier, without any debate in Parliament.

The reply affidavit by the Centre has been filed in response to a batch of petitions filed by the Madras Bar Association, Congress leader Jairam Ramesh and others challenging the constitutionality of the Act.

Basic structure doctrine

The affidavit said that even if there is a violation of the basic structure doctrine, it is not the grounds to attack the validity of a statute.

“Basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute,” the Centre said.

The Centre also contended that independence of the judiciary is not a ground which can be used for testing statutes.

“If for any reason, independence of the judiciary is treated as the basis, one could not phrase a provision by declaring that independence is removed which would ex facie sound antithetical. What is more, independence of the judiciary is not a ground which can be used for testing statutes,” the affidavit said.

“It has been held in a series of cases including by two Constitutional Bench decisions and by a seven judges bench of the Supreme Court that basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute,” it said.

The Centre said the laws and statutory rules made by Parliament fall under the realm of policy.

Power separation

“Government equally believes that the court striking down these pure matters of policy violates the separation of powers by the judicial wing of the State,” it said.

The provisions, whose validity are under challenge, bars the appointment of persons below 50 years of age to tribunals.

“What is significant is if the separation of powers entrusts to Parliament and the Executive the exclusive jurisdiction to decide as to what would be the best policy, which would be necessary in public interest, then, the principle of separation of powers itself would stand violated if the Judiciary interferes with Issues of policy and substitutes what it believes would be a better policy” the Centre stated.

Earlier, the bench had expressed its displeasure of the passage of the Tribunals Reforms Bill, 2021 without debate and attributing sufficient reasons justifying the need to reverse the apex court’s rulings.

The law pertains to terms and conditions for the service and tenure of members of various tribunals and the fresh law revives some of the provisions struck down by a bench headed by Justice L N Rao recently on pleas including the one filed by Madras Bar Association.

“We have seen two days back as to how what was struck down by this court has again come back. I do not think any debate has taken place in Parliament. No reason has been given. We have absolutely no problem with the Parliament making laws,” the CJI had observed.

“Parliament has the right to make any law. But at least we must know what are the reasons for the Government to introduce this Bill again after the striking down of the Ordinance. Nothing is there. I read the newspapers that and from the Finance Ministers, there is only one word that the court has not struck down the Ordinance on constitutionality,” he had observed.

The bench had then also granted last opportunity to the Centre to make appointments in quasi-judicial panels facing a severe crunch of presiding officers, judicial and technical members.

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