Case Law (SC) – The Tribunal Reforms Act, 2021 is a replica of the struck down Ordinance; old wine in a new bottle, the wine whets not the judicial palette, but the bottle merely dazzle. The repeated reenactment of the same provisions, which have been struck down by the judiciary, shows that the “form of the administration” is being made “inconsistent” with the spirit of the Constitution.

 Madras Bar Association v. Union Of India and Another [2025 INSC 1330] dated 19.11.2025.

ISSUE BEFORE COURT ARE: -

i.     Whether Parliament possesses the authority to disregard a judicial pronouncement and to enact a statute in any manner it deems appropriate?

ii.               Can the Court compel Parliament to legislate in a particular manner?

iii.         Can the constitutionality of legislation be tested on the touchstone of what the Union describes as “abstract principles,” such as separation of powers or judicial independence?

iv.           Constitutional validity of the Tribunal Reforms Act, 2021?

DECISION: -

“First issue:

117. Parliament, like every other institution under our constitutional scheme, must operate within the bounds of the Constitution. Its discretion is broad but not absolute. It must respect the principles of separation of powers, the guarantees of fundamental rights, and the structural values (such as judicial independence) that are part of the basic framework of our constitutional order.

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120. Therefore, we do not find merit in the argument of the learned Attorney General that Parliament has discretion to ignore the decisions of this Court.

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Second issue:

123. Thus, a clear distinction must be maintained between directing legislation and reviewing legislation. The former is forbidden, because the Court cannot function as a law-maker. The latter is indispensable to preserving the supremacy of the Constitution. Where the Court identifies constitutional infirmities and issues mandatory directions to ensure compliance with constitutional principles, such as those concerning the independence, composition, or tenure of adjudicatory bodies, those directions are binding. Parliament may respond by removing the basis of the judgment through curative legislation, but it cannot simply enact a statute that reproduces or perpetuates the very defects the Court has critiqued. Thus, while the judiciary cannot dictate policy, it can and must ensure that legislative choices conform to the Constitution. Judicial restraint in law-making does not imply judicial abdication in constitutional adjudication.

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Third issue:

126. Legislative measures concerning the structure, composition, and functioning of tribunals necessarily implicate these constitutional principles because tribunals discharge judicial functions and form part of the larger system of justice administration. When Parliament designs or alters the tribunal system, it must do so in a manner consistent with the constitutional requirements of independence, impartiality, and effective adjudication. A law that undermines these foundational values, such as by enabling executive control over appointments, curtailing tenure arbitrarily, or weakening institutional autonomy, does not merely offend an “abstract principle”. It strikes at the core of the constitutional arrangement.

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132. In the same way, the norms laid down in the tribunal cases, regarding tenure, age limits, selection processes, qualifications, and independence from executive control, are not abstract judicial preferences. They are constitutional requirements distilled from Articles 323-A and 323-B read with the doctrines of separation of powers, independence of the judiciary, and the guarantee of equality under Article 14. These principles therefore furnish the constitutional tests that any legislation on tribunals must satisfy. Where Parliament re-enacts provisions previously struck down without curing the underlying defect, the resulting legislation remains vulnerable to invalidation, not because the Court is imposing its own policy, but because the Constitution itself demands adherence to these structural safeguards.

133. When the Court examines the validity of a statutory provision governing tribunals, it does not issue legislative directions in the strict sense. Instead, it tests the law against these constitutionally entrenched standards. In doing so, the Court reinforces the idea that the tribunal system derives its constitutional legitimacy from adherence to the same principles that safeguard judicial independence and the rule of law.

134. Seen in this light, the Union’s argument does not stand. The validity of legislation may, and must, be tested against structural principles such as separation of powers and judicial independence when the legislation in question directly implicates the constitutional design of the justice system. Judicial enforcement of these principles is an essential feature of constitutional adjudication, not an overreach.

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Fourth issue:

139. Thus, it can be seen that what the 2021 Ordinance did through amendments to Section 184 of the Finance Act, 2017, the Impugned Act now does through Sections 3, 5, and 7. The minimum age bar of fifty years for all appointments, the truncated four-year tenure with upper age caps of 70/67, the requirement that the Search-cum-Selection Committee forward a panel of two names for each vacancy, and the fixing of allowances and benefits to those of equivalent civil servants are all provisions, which have already been judicially tested and struck down. The Court has expressly held that these measures are arbitrary, destructive of judicial independence, and amount to an impermissible legislative override of binding directions.

140. Merely shifting the same content from the amended Section 184 of the Finance Act into Sections 3, 5 and 7 of a stand-alone statute, while using the non obstante formula “notwithstanding anything contained in any judgment or order”, does not cure the constitutional defects. It simply reenacts them in another avatar. The Impugned Act, therefore, does not “cure” the law declared earlier, but consciously defies it.

141. Equally, the learned Attorney General’s present defence of the Impugned Act is a verbatim reprise of arguments that have already been considered and rejected. In the earlier round, the Union had contended that directions regarding age, tenure, HRA and the recommendation of a single name were mere “suggestions”, that Parliament is free to depart from them in exercise of its policy-making power, and that judicial review must be confined to testing explicit textual violations of the Constitution. The decision in MBA (V) rejected this argument on multiple grounds. First, it held that the directions on composition, tenure and conditions of service 127 were in the nature of mandamus flowing from adjudication on separation of powers, independence of the judiciary and Article 14, and therefore constitute “law declared” under Article 141. Second, it held that while the legislature may neutralise a judgment by curing the underlying defect, it cannot simply re-enact the very provision or rule that was struck down and declare the Court’s view to be non-binding. Such repetition was described as an “impermissible legislative override” and an “indirect intrusion into the judicial sphere”. Third, it emphasised that separation of powers and judicial independence are justiciable constitutional principles, and that in matters affecting the structure and functioning of adjudicatory bodies, the Court must apply a searching standard of review and cannot defer to “policy” in the same way as in economic or commercial regulation. The Impugned Act thus stands on two identical, alreadyrejected premises: it reproduces the substance of provisions invalidated in the earlier litigations without curing the defects, and it rests on constitutional arguments that the Court has already expressly disapproved.

142. Therefore, the provisions of the Impugned Act cannot be sustained. They violate the constitutional principles of separation of powers and judicial independence, which are firmly embedded in the text, structure, and spirit of the Constitution. The Impugned Act directly contradicts binding judicial pronouncements that have repeatedly clarified the standards governing the appointment, tenure, and functioning of tribunal members. Instead of curing the defects identified by this Court, the Impugned Act merely reproduces, in slightly altered form, the very provisions earlier struck down. This amounts to a legislative override in the strictest sense: an attempt to nullify binding judicial directions without addressing the underlying constitutional infirmities. Such an approach is impermissible under our constitutional scheme. Because the Impugned Act fails to remove the defects identified in prior judgments and instead reenacts them under a new label, it falls afoul of the doctrine of constitutional supremacy. Accordingly, the impugned provisions are struck down as unconstitutional.

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153. We grant the Union of India a period of four months from the date of this judgment to establish a National Tribunals Commission. The commission so constituted must adhere to the principles articulated by this Court, particularly concerning independence from executive control, professional expertise, transparent processes, and oversight mechanisms that reinforce public confidence in the system.

154. We, further, clarify and direct that the service conditions of all such Members of ITAT who were appointed by orders dated 11th September 2021 and 1st October 2021 shall be governed by the old Act and the old Rules.

155. We also clarify that all appointments of Members and Chairpersons whose selection or recommendation by the Search-cum-Selection Committee was completed before the commencement of the Tribunal Reforms Act, 2021, but whose formal appointment notifications were issued after the Act came into force, shall be protected. Such appointments will continue to be governed by the parent statutes and by the conditions of service as laid down in MBA (IV) and MBA (V), rather than by the truncated tenure and altered service conditions introduced by the Tribunal Reforms Act, 2021.”