Khushi Gupta
Published on: April 6, 2022 at 07:58 IST
The Madras High Court recently declared Section 32 (2) (a) of the Prohibition of Benami Property Transactions Act, 1988, which made a member of the Indian Legal Service Eligible for appointment as a Judicial Member in the Appellate Tribunal as Unconstitutional.
A Bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy held that when the Supreme Court called for Judicial Independence of Tribunals, the same was required to be followed by High Courts as well as the executive.
Therefore, the Respondents wanted the Court to amend the provision keeping in mind the Apex Court’s Judgment in Union of India Vs R. Gandhi.
“…When the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the Independence of the Judicial System and, accordingly, the Apex Court while delivering the Judgment in the Case of Union of India Vs. R. Gandhi, President, Madras Bar Association, supra, held that only Judges and advocates can be considered for appointment as Judicial Member of the Tribunal,” the Court held.
Further, in Shamnad Basheer Vs. Union of India, certain Provisions were declared to be unconstitutional as they made a Member of the Indian Legal Service eligible for appointment for the post of Chairperson or Judicial Member of the Intellectual Property Appellate Board. A similar decision in Revenue Bar Association Vs. Union of India was also referred to.
Therefore, the Petitioner prayed for a declaration that Section 32(2)(a) of the Act was Unconstitutional.
Before the High Court, the Additional Solicitor General R Sankaranarayanan opposed the Plea, stating that the provision under challenge did not offend any Constitutional provision.
“The Principal Issue decided qua the Basic Structure of Constitution ensures the Separation of Powers and Independence of the Judiciary from the clutches of the Executive,” the Court noted and also stated that the principle laid down in R. Gandhi was applicable to all Tribunals.
With this, the Petition was disposed of and the Central government was asked to amend the provision immediately.