SC asks Centre to file draft rules on appointment in tribunals

New Delhi: The Supreme Court on Friday directed the Centre to file amended draft rules, to be framed under the 2017 Finance Act which would deal with appointment and service conditions of judicial and non-judicial members of as many as 19 tribunals including the National Green Tribunal (NGT).

A bench headed by Chief Justice Dipak Misra asked Attorney General K K Venugopal that draft amended Tribunal, Appellate and other Authorities (Qualifications, Experience and other conditions of Service of Members) Rules, 2017, which would govern procedure of appointment, removal and service conditions of chairperson and members of tribunals, be filed before it by January 4.

The bench, also comprising justices A M Khanwilkar and D Y Chandrachud, asked Venugopal to provide the copy of draft rules to senior lawyers Arvind Datar and Mohan Parasaran for their perusal and suggestions.

Several persons and organisations, represented by Datar and Parasaran, have moved the apex court challenging the constitutional validity of the 2017 Finance Act and the rules alleging it would destroy independent functioning of tribunals as they give primacy to the executive in deciding the constitution, qualifications of members, their appointments and removal from tribunals.

The new law and rules provided that the appointment committees, to be headed by the CJI or his nominees, will have more members from the Executive and hence they undermined the judicial independence of tribunals and impinged upon the doctrine of separation of powers, the petitions alleged.

During the hearing, the bench said the CJI was there in the search and appointment committee and there was no reason to have any kind of apprehension that the appointment process would not be just and fair.

It directed the Centre that the draft rules should be in consonance with previous apex court judgements on such appointments and fixed the pleas for hearing on January 4.

The bench rejected the submission that the services of retiring presiding member of the NGT be also be extended as has been done in the case of retiring presiding officers of the National Consumer Disputes Redressal Commission (NCDRC) and the Central Administrative Tribunal (CAT).

"The extension took place as the Centre agreed to our suggestion," the bench said.

The Centre has recently acceded to suggestion of the apex court that the term of retiring judicial and non-judicial members of NCDRC and CAT be extended till April 15.

Earlier, the apex court had issued notices on petitions, including the one filed by NGO Social Action for Forest and Environment (SAFE), challenging the constitutional validity of the 2017 Finance Act and rules framed under the statute.

They alleged the Act and the Rules destroyed independent functioning of tribunals.

The Finance Act, which came into effect from April 1, led to framing of the Rules and they allegedly gave "unbridled" powers to the Executive to decide Constitution, qualifications of members, their appointments and removal etc.

One of the petitions said the altercations brought about by the Finance Act, would weaken functioning of tribunals including the NGT and curtail their powers.

"While the provisions of the impugned Finance Act and Tribunal Rules would destroy the independent functioning of all the Tribunals specified therein, the petitioner, being an activist organisation in the field of the environment, has sought to demonstrate the same with reference to the effect of the Act and Rules on the functioning of the NGT," it said.

It claimed that the tribunal rules have severely diluted the minimum qualifications for appointment of members to the NGT, including the chairperson and judicial members, such that there is a "clear and present danger of persons being appointed as the chairperson/judicial members of the NGT, who have no judicial or even legal training and experience," and of persons without significant technical and scientific knowledge being appointed as expert members, which is in violation of the guidelines laid down by the apex court.