In a landmark decision on Tribunalisation, the Supreme Court has struck down the formation of the National Tax Tribunal

In a landmark decision on Tribunalisation comprising 270 pages, stressing upon independence of judicial functioning in a democracy, a 5 Member Constitution Bench of the Supreme Court has struck down the National Tax Tribunal Act, 2005, and hence struck down the inception of the National Tax Tribunal which was to be constituted by the Central Government.

On this blog, I have, in the past, authored opeds and opinions on the pitfalls of Tribunalisation and the same can be accessed here and here. The decision on a Public Interest Litigation filed by me regarding lack of independence of Tribunals has been challenged by the Central Government and is pending before the Apex Court.

Though the existence, continuance, nature and constitution of the existing Tribunals would have to be tested on the touchstone of today’s decision, following are the star points expressed by the Bench in the decision:

That Tribunals would only perform a supplemental role and not a substitutional role. The power of judicial review of the High Court under Articles 226 and 227 can never be ousted.

That Members of Tribunals should have no administrative dealings with the Govt.

That only a person possessing professional qualification in law, with substantial experience in the practice of law, will be in a position to handle the onerous responsibilities which a Chairperson and Members have to shoulder.

That it is not possible for the Court to accept that Technical Members have the stature and qualification possessed by Judges of High Courts.

That it is not possible to accept that a party to a litigation (the Central Government in the case of Tribunals) can participate in the selection process, whereby the Chairperson and Members of such adjudicatory body are selected.

That re-appointment provisions undermine the fairness and independence of Members.

The gratitude of the public in this aspect must go to the Madras Bar Association and their counsel, Mr Arvind Datar, for continually taking up threats to our judicial independence head on and to a logical conclusion.

Law marches on. 

Post Note: And while we are at it, I would recommend readers interested in the subject to peruse this detailed oped rendered by Justice JS Narang of the Punjab & Haryana High Court on the subject of Tribunalisation published in 'The Law' magazine earlier this year.