Member of Indian Legal Service cannot be appointed as a Judicial Member under Benami Transaction Act

V. Vasanthakumar Vs Union of India (Madras High Court)

Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988, postulates the qualifications for appointment of a Judicial Member and, as per the said provision, a Member of the Indian Legal Service who held the post of the Additional Secretary or equivalent post in that service is eligible for appointment as a Judicial Member in the Appellate Tribunal. In view of the provision aforesaid, other than the member of the Indian Legal Service, none else other than given under sub-section (3) to Section 32 of the Act of 1988 would be eligible to be appointed as Judicial Member of the Tribunal.

High Court held that It is true that the extent of judicial review that can be exercised in a given case is quite limited. Though a constitutional court can declare a provision to be unconstitutional, it should not give any direction to the Legislature to make an amendment in a particular way. The judicial restraint is, therefore, being hailed as a virtue. However, 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.

In view of the position aforesaid, we hold Section 32(2)(a) of Prohibition of Benami Property Transactions Act, 1988 to be unconstitutional. The respondent is 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, supra. The amended provision may be brought in immediately.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

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