Exclusion of Advocates in 10 out of 19 Tribunals, for Consideration as Judicial Members is Contrary to its Judgments: SC

Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to its judgments: SC

As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.

The Apex Court has ruled that exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India.

It sees no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The appointment of competent lawyers and technical members is in furtherance of judicial independence, it added.

Issue before the Court

The core issue in the present case was to consider the constitutional validity of the ‘Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (‘Tribunal Rules 2020)’. 

Submission put forth by Amicus Curiae

  • The Amicus Curiae, Senior Advocate Arvind P Datar, submitted that Advocates are excluded from being considered for appointment as judicial members in a majority of Tribunals by the 2020 Rules. He stated that the prerequisite of 25 years of experience would be a serious handicap in selecting meritorious candidates from among advocate.
  • Advocates with the standing of 15 years at the bar should be made eligible for being considered for appointment as judicial members to the Tribunals, he informed the Court.
  • The rule, 2020 inflict a stipulation whereby Advocates without 25 years of experience are not qualified as a judicial member of Seven tribunals (such as Central Administrative Tribunal, Income Tax Appellate Tribunal etc).

Arguments of the Attorney General for India

  • The Attorney General for India, KK Venugopal, made submission that though the Constitution prescribes that an Advocate having experience of 10 years can be considered for appointment as a Judge of a High Court, normally an Advocate is considered only after he attains the age of 45 years.

“An experience of 25 years at the Bar would make Advocates at the age of 47-48 years eligible for appointment as judicial members of the Tribunals. It would be attractive for the Advocates to apply for appointment to the post of judicial members of the Tribunals after having experience of 25 years, especially due to the provision for reappointment.”, the AG submitted.

Observation made by the Court

“While the Attorney General suggested that an advocate who has 25 years of experience should be considered for appointment as a judicial member, the learned Amicus Curiae suggested that it should be 15 years. An Advocate of a High Court with experience of ten years is qualified for appointment as a Judge of the High Court as per Article 217 (2) of the Constitution of India. As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010)19 and Madras Bar Association v. Union of India (2015) . However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members”

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  • These tribunals are expected to be independent, vibrant and efficient in their functioning. Appointment of competent lawyers and technical members is in furtherance of judicial independence. Younger advocates who are around 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges. If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted. 25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, tenure without assured re-engagements would not be feasible. A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.
  • Thus, the Court directed that the 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law.

Case Name: Union of India v. Madras Bar Association

Citation: Writ Petition (C) No. 804 of 2020

Coram: Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat

Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to its judgments: SC

Also Read: Quashing Of A Criminal Complaint Should Rather Be An Exception And A Rarity Than An Ordinary Rule: Apex Court

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