‘Want this heard after my retirement?’: CJI Gavai raps Centre in Tribunal Reforms Act case
On November 3, the CJI-led bench had deprecated the government’s late-stage request to refer the case to a five-judge bench.
Chief Justice of India Bhushan R Gavai on Thursday took strong exception to the Union government seeking yet another adjournment in the hearing on petitions challenging the constitutional validity of the Tribunal Reforms Act, remarking that the Centre appeared to want the case heard only after he demitted office on November 23.
When Additional Solicitor General Aishwarya Bhati mentioned the matter and sought to defer Friday’s hearing citing Attorney General R Venkataramani’’s engagement in an international arbitration, the CJI’s response was blunt.
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“If you do not want us to hear and deliver the judgment, just tell us. Looks like you want this matter only after November 24,” CJI Gavai told Bhati. “We have accommodated the Attorney General thrice but we keep hearing that he is busy in international arbitration. You have a fleet of learned ASGs. Let somebody else argue this matter,” Justice Gavai added.
Bhati said the Attorney General was personally conducting the case, prompting the bench to note that he had not appeared despite three rounds of adjournments. “The practice in high courts is that if a matter is part-heard, the lawyers must complete those matters first. Here, we have adjourned this matter three times on similar requests but he is still not here,” the CJI observed.
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The CJI also referred to the midnight application filed by the Union government on November 2, seeking reference of the matter to a Constitution bench- an application moved after the petitioners had concluded arguments and the bench had adjourned to enable the AG to appear. “First, we keep adjourning it on your request and late in the night, we get an application that you want this matter to be referred to a Constitution bench. This is very unfair to the court. We wanted to hear this case tomorrow and utilise the weekend to write the judgment,” the CJI said.
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“We have the highest respect for the highest office in law for the government, but in this manner, hearings are being shunted out,” remarked Justice Gavai, before fixing the matter for Monday, (November 10) telling Bhati: “Inform the AG that we will close the matter on Monday.”
Thursday’s exchange follows a similar confrontation earlier this week. On November 3, the bench comprising CJI Gavai and Justice K Vinod Chandran had deprecated the government’s late-stage request to refer the case to a five-judge bench after the petitioners had already argued on merits.
Calling the move “shocking” and asserting that the Union appeared to be playing “tactics” with the court, the CJI had said: “We do not expect the Union of India to take such a stand and play tactics with the court… After we have heard the petitioners fully, the Union government cannot be permitted to take the plea for reference to a larger bench.”
While AG Venkataramani General had insisted that seeking reference was not tactical but arose from his conclusion that substantial constitutional questions were involved, the bench had stated that it would consider referring the case to a larger bench only if it independently found merit in the request.
The hearing was then adjourned to November 7 at the AG’s request due to his arbitration engagements -- a hearing that has now been deferred again.
The petitions, led by the Madras Bar Association, challenge provisions of the Tribunal Reforms Act, 2021, which prescribe uniform tenure, age limits and selection processes for the chairpersons and members of several tribunals. The challenge is rooted in earlier judgments where the Supreme Court held that tribunals discharging judicial functions must maintain independence from the executive, and that judicial primacy in appointments is integral to that independence.
Argued through senior advocate Arvind Datar, the Association has argued that in July 2021, the top court quashed several provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, holding that they infringed upon the principles of judicial independence and the separation of power. However, the Centre subsequently came up with the Tribunal Reforms Act, re-enacting various provisions, including those pertaining to tenure and service conditions of tribunal chairpersons and members, that stood junked by the court in its previous judgment.
Meanwhile, the Union government’s pending application argues that the case raises substantial questions of constitutional interpretation, including whether the Supreme Court can direct Parliament to frame a law in a particular manner; and if judicial directions regulating legislative design violate separation of powers.
