Writ Petition Summary (AILU)

Background and Issue

The petitioner is the All-India Lawyers Union. AILU is a pro bono publico organization which was formed by members of the legal fraternity to uphold the principles of the Constitution of India and has over 50 thousand members. The petition argues that Sections 182, 183, 184 and 185 of the Finance Act, 2017 and the rules framed under Section 184 are ultra vires of Articles 14, 19 and 21 of the Constitution.

What does the petitioner seek?

The petitioner has prayed for –

1. Declaration of Sections 182, 183, 184 and 185 of the Finance Act, 2017 as well as the Tribunal Rules framed under Section 184, as violative of Articles 14, 19 and 21 of the Constitution.

Grounds

Independence of the Judiciary and the exercise of Arbitrary Power

Tribunals are the courts of first instance for the law they’ve been constituted under. The petitioners argue that the amount Centre has been given undue discretion to select Tribunal Members who are ‘inferior in status’ and ‘casual in working’ in comparison to current Tribunal Members and their judicial work experience. Section 184 results in excessive delegation to the Central Government according to the petitioner. Section 182 enables the Central Government to decide the service conditions of members as opposed to Parliament. The new Tribunal Rules diluted the requirement for the head of the Search and Selection Committee for members. As per the new rule any nominee of the Central Government could be appointed. This is a violation of the rule of law and an encroachment upon the independence of the judiciary.

Finance Act, 2017 as a Money Bill

The petitioner refers to the passing of the Act as a “colourable exercise of power”. This stems from the argument that the substantive provisions in the impugned sections are not incidental to the clauses contained in Article 110 of the Constitution. The Article enumerates the only situations where a bill can be introduced and passed as a money bill. The petitioner states that this infringement of Article 110 violates the separation of power. And adversely impacts federalism. Both are basic features of the Constitution.

National Green Tribunal Act, 2010

The petitioners have argued that the Tribunal Rules passed under Section 184 is a subordinate legislation to the NGT Act, 2010. The Tribunal Rules allow for an expert member with a science degree and 5 years of experience in environmental law to be appointed as the Chairperson of an NGT. This is despite the NGT Act providing that the qualifications for such a member is fixed at a former member of the Supreme Court or a former High Court Chief Justice. The petitioner also referred to ‘Madras Bar Association v. Union of India’ which reasoned that the Chairperson would be required to decide questions of law and must be a judicial member.