CHENNAI: The Madras High Court has ordered notice to the Attorney-General of India on a PIL that sought to declare certain provisions of the Prohibition of Benami Property Transactions Act, 1988, as unconstitutional as they allegedly ran counter to the doctrine of separation of powers, the basic structure the Constitution. The provisions in question are Sections 9 and 32 (2) of the law that pertain to qualification of appointment of judicial members.
The first bench of Chief Justice Indira Banerjee and Justice P T Asha passed the order on a plea moved by V Vasanthakumar, an advocate, who claimed that the provisions were against the doctrine of separation of powers as they empowered the central government to appoint the judicial members to adjudicating authorities and tribunals.
“Since the provisions restrict the qualification of appointment of judicial members to Indian Revenue Service and Indian Legal Service, it deprives the equality of opportunity to practising advocates as held by the Supreme Court in Madras Bar Association Vs Union of India, thereby infringing the fundamental right of equality guaranteed under Article 14 of Constitution to the legal fraternity,” petitioner said.
He said the provisions suffered from severe constitutional infirmity as they drew members to the appellate tribunal from Indian Revenue Service and Indian Legal Service while the Supreme Court had held that if a three-member tribunal is constituted, the number of technical members should not exceed the judicial members.
Petitioner said the provisions virtually transfer judicial functions to the executive, and run counter to the independence of the judiciary.
He said the provisions were enabling the tribunal to be packed with members drawn from civil services and continue to be the employees of different ministries or government departments by maintaining lien over their respective posts.
Point made
Petitioner said the provisions virtually transfer judicial functions to the executive, and run counter to the independence of the judiciary