Separation of Power
Separation of Power is a doctrine of constitutional law under which the state is divided into three different branches i.e. legislative, executive and judiciary each having different independent power and responsibility so that one branch may not interfere with the working of the others two branches. If this principle is not followed then there will be more chances of misuse of power and corruption.
The concept of separation of powers was dealt with by the Supreme Court in the case of Indira Nehru Gandhi v. Raj Narain [1975] Supp SCC 1 . It was held that Indian Constitution indeed does not recognise the doctrine of separation of powers in its absolute terms, but the function of the different parts or the branches of the Government have been sufficiently differentiated and, consequently, it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
The independence of the judicial system remains a vital issue and for that emphasis was made that there would be separation of powers, so that independence of judiciary is maintained.
Section 32 of the The Prohibition Of Benami Property Transactions Act, 1988
Section 32 states the Qualifications for appointment of Chairperson and Members of Appellate Tribunal and same is extracted hereunder:
1. A person shall not be qualified for appointment as Chairperson of the Appellate Tribunal unless he is a sitting or retired Judge of a High Court, who has completed not less than five years’ of service.
2. A person shall not be qualified for appointment as a Member unless he—
a. in the case of a Judicial Member, has been a Member of the Indian Legal Service and has held the post of Additional Secretary or equivalent post in that Service;
b. in the case of an Administrative Member, has been a Member of the Indian Revenue Service and has held the post of Chief Commissioner of Income tax or equivalent post in that Service.
3. No sitting Judge of a High Court shall be appointed under this section except after consultation with the Chief Justice of the High Court.
4. The Chairperson or a Member holding a post as such in any other Tribunal, established under any law for the time being in force, in addition to his being the Chairperson or a Member of that Tribunal, may be appointed as the Chairperson or a Member, as the case may be, of the Appellate Tribunal under this Act
The above provision of Section 32(2)(a) is hit by the judgement of the apex court in the case of Union of India v. R. Gandhi, President, Madras Bar Association [2010] 156 Comp Cas 392 (SC) ; [2010] 11 SCC 1. It was held that Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 is unconstitutional because it postulates that a Member of the Indian Legal Service who has held the post of Additional Secretary or equivalent post in that service is eligible for appointment as a Judicial Member in the Appellate Tribunal.
Only Judges and Advocates can be considered as Judicial Member of the Tribunal
Putting an end to the practice of appointing central and state government officers as judicial members of appellate tribunals under the Benami Transactions (Prohibition) Act, the Madras HC declares the provisions of Section 32 (2)(a) of the Prohibition Of Benami Property Transactions Act, 1988 as unconstitutional in the judgement of V. Vasanthakumar v. Union of India [2022] 444 ITR 677 (Mad) and 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) where it was held that Only judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only high court judges or judges who had served in the rank of a district judge for at least five years or a person who had practiced as a lawyer for 10 years alone could be considered for appointment as a judicial member.
The court passed the order while allowing a plea moved by advocate V Vasanthakumar challenging the amendment brought into the Act in 2016. According to him, bureaucrats with no legal experience could not be appointed as judicial members.
As per the first bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy, persons who has held a Group A or equivalent post under the central or state government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) could not be considered for appointment as judicial member.
A brief summary of the case is mentioned below:
V. Vasanthakumar v. Union of India [2022] 444 ITR 677 (Mad)
In the above mentioned case writ petition was filed by V. Vasanthkumar. The Petitioner, sought to declare Sec. 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 (Act 45 of 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016) as unconstitutional as it ran counter to the doctrine of Separation of Powers, which was the basic structure of the Constitution.
According to petitioner the section 32(2)(a) is hit by the judgement of the Supreme Court in the case of Union of India v. R. Gandhi, President, Madras Bar Association [2010] 156 Comp Cas 392 (SC); [2010] 11 SCC 1 where it was held that the post of Judicial Member of any Tribunal should be manned only by a person who served as a Judge or a member of the Bar and not by a member of Indian Legal Service. Following the above judgement of Union of India v. R. Gandhi, in the case of Shamnad Basheer v. Union of India 2015 2 LW 941, the provisions of sections 85(2)(b) and 85(3)(a) of the Trademarks Act, 1999, were declared unconstitutional as those provisions 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.
Also following the Judgement of Union of India v. R. Gandhi, in the case of Revenue Bar Association v. Union of India [2019] 70 GSTR 277 (Mad); 2019 4 LW 689, the provision of sections 109 and 110 of the Central Goods and Services tax Act, 2017 were declared unconstitutional as those provisions made a member of Indian Legal Service eligible to be appointed as Judicial Member in the Goods and Services Tax Appellate Tribunal.
Allowing the petition, the bench said that the matter was examined by a division bench of this court in the Shamnad Basheer vs Union of India and others case. 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 realized. It was for this reason that prior to the constitution of the Tribunal, the adjudication of the issue was done by the courts.
The necessity and importance of a judicial member and that too, a person who served as a judge or a member of the Bar was felt and accordingly, the division bench of this Court had held certain provisions of the Trademarks Act, 1999 and the Patents Act, 1970 to be unconstitutional, the bench pointed out.
It is for that reason a specific direction was given that administrative support for all the Tribunals should be from the Ministry of Law and Justice. 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.
“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 Supreme Court to have judicial independence, it is required to be followed by the High Courts as well as the Executive,” the bench observed and held that Section 32(2)(a) of the 1988 Act as 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).
Conclusion:
Only high court judges or judges who had served in the rank of a district judge for at least five years or a person who had practiced as a lawyer for 10 years alone could be considered for appointment as a judicial member.
Persons who has held a Group A or equivalent post under the central or state government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) could not be considered for appointment as judicial member.
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