CHENNAI: In a significant order, the Madras High Court has ruled that only retired judges or members of the Bar may be appointed as judicial members of all tribunals and struck down Section 32 (2) (a) of the Prohibition of Benami Transactions Act, 1988, as unconstitutional in view of the orders of the Supreme Court and the Madras High Court on the contentious matter.
The first bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy recently passed the order on a petition filed by V Vasanthakumar, who prayed for declaring Section 9 and Section 32 (2) (a) of the Prohibition of Benami Property Transactions Act, 1988, pertaining to qualification for judicial member of tribunals, as amended by Benami Transactions (Prohibition) Amendment Act, 2016 as unconstitutional.
While the Act of 1988 provides for persons from the Indian Legal Service holding the post of additional secretary or equivalent to be appointed as judicial members, as per the Supreme Court order, the post should be manned only by a person who has served as a judge or is a member of the Bar, he said.
'Verdict a victory for judicial autonomy'
Additional Solicitor General Sankaranarayanan, appearing for Centre, contended that the government was empowered to legislate on the subject. A mere reference of judgments would not be sufficient to hold a provision to be unconstitutional, he argued.
The court, agreeing that the extent of judicial review that can be exercised is quite limited, maintained that in a case where a direction has been given by the apex court to have the judicial independence, it is required to be followed by the high courts as well as the executive.
The principle laid down in the case of Union of India v. R.Gandhi, President, Madras Bar Association, has application to all the tribunals and was not rendered on the fact situation alone, the bench said. The bench said the matter was examined by the Division Bench of Madras High Court in the case of Shamnad Basheer v. Union of India and others, and considering the issue that the proceedings before the tribunal would be judicial in nature, the necessity for appointment of a member from the judiciary or the bar was realised.
"In view of this position, we hold Section 32(2) (a) of the Act of 1988 to be unconstitutional. The respondents are directed to frame the provision keeping in mind the directions of the apex court in the case of Union of India v. R.Gandhi, President, Madras Bar Association. The amended provision may be brought in immediately," the judges ordered.
Welcoming the judgment, advocate Rahul Balaji, practising in company matters, said, "This is one more success in the long crusade by the Madras Bar, which has been at the forefront in ensuring maintenance of judicial independence. The Supreme Court and the Madras High Court have continued to reiterate the principles in this regard in clear terms."
"However, it’s quite disconcerting to see the continued attempts by the legislature and executive to chip away at the judicial independence with such unimaginative and clearly unconstitutional attempts," he added.