MADRAS BAR ASSOCIATION versus UNION OF INDIA

Citation: [2010] 6 S.C.R. 957 · Decided: 11-05-2010 · Supreme Court of India · Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, D.K. JAIN, P. SATHASIVAM, J.M. PANCHAL · Disposal: Directions issued

Judgment (excerpt)

(2010) 6 S.C.R. 957 
MADRAS BAR ASSOCIATION 
v. 
UNION OF INDIA 
(Transferred Case (Civil) No. 150 of 2006 etc.) 
MAY 11, 2010 
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN, 
D.K. JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.] 
Constitution of India, 1950: 
Article 323-B - Enabling appropriate Legislature to 
provide for adjudication or trial by Tribunals - Enactment of 
National Tax Tribunal Act, 2005 - Validity of - HELD: The 
petitions relating to validity of the NTT Act and the challenge 
A 
B 
c 
to Article 323-B raises issues which did not arise in CA No. 
D 
306712004 and CA No. 3717120051 -
Therefore, the instant 
cases cannot be disposed of in terms of the decision in the 
two civil appeals, but require to be heard separately - These 
matters are, therefore, directed to be de-linked and listed 
separately for hearing - National Tax Tribunal Act, 2005 -
~~of 
E 
CIVIL ORIGINAL JURISDICTION : Transfered Case (C) 
No. 150 of 2006. 
Under Article 139 of the Constitution of India. 
WITH 
T.C. (C) No. 116, 117 & 118 of 2006, 
W.P. (C) No. 697 of 2007. 
Parag P. Tripathy, ASG, Arvind P. Datar, Ananth 
Padmanabhan, Nikhil Nayyar, TVS Raghavendra Sreyas, 
Ambuj Agrawal, Suchindran B.N., E.C. Vidya Sagar, Amey 
1. 
Union of India vs. R. Gandhi (2010) 6 SCR 857. 
957 
F 
G 
H 
958 
SUPREME COURT REPORTS 
[2010) 6 S.C.R. 
A 
Nargolkar, Arti Gupta, Vismai Rao, Gaurav Agarwal, Kunal 
Bahri, Varun Sarin, Anubha Agarwal, Sushma Suri, Navin 
Prakash (for P. Parmeswaran), Sanjeev Sachdeva, Saurabh 
Sharma, Preet Pal Singh, Parmanand Gaur, Gagan Gupta, 
Achin Gupta for the appearing parties. 
B 
The following order of the Court was delivered 
ORDER 
In all these petitions, the constitutional validity of the 
c National Tax Tribunal Act, 2005 ('Act' for short) is challenged. 
In TC No.150/2006, additionally there is a challenge to section 
46 of the Constitution (Forty-second Amendment) Act, 1976 
and Article 3238 of Constitution of India. It is contended that 
section 46 of the Constitution (Forty-second Amendment) Act, 
0 is ultra vires the basic structure of the Constitution as it enables 
proliferation of Tribunal system and makes serious inroads into 
the independence of the judiciary by providing a parallel system 
of administration of justice, in which the executive has retained 
extensive control over matters such as appointment, jurisdiction, 
E procedure etc. It is contended that Article 3238 violates the 
basic structure of the Constitution as it completely takes away 
the jurisdiction of the High Courts and vests them in the National 
Tax Tribunal, including trial of offences and adjudication of pure 
questions of law, which have always been in the exclusive 
F domain of the judiciary. 
2. When these matters came up on 9.1.2007 before a 
thn~e Judge Bench, the challenge to various sections of the Act 
was noticed. 
G 
(2.1) The first challenge was to section 13 which permitted 
"any person" duly authorized to appear before the National Tax 
Tribunal. Union of India submitted that the appropriate 
amendment will be made in the Act to ensure that only lawyers, 
Chartered Accountants and parties in person will be permitted 
H to appear before the National Tax Tribunal. 
MADRAS BAR ASSOCIATION v. UNION OF INDIA 
959 
(2.2) The second challenge was to section 5(5) of the Act 
A 
which provided that the Central Government may, in 
. consultation with the Chairperson, transfers a Member from 
headquarters of one Bench in one State to the headquarters 
of anothar Bench in another State or to the headquarters of any 
other Bench within a State. Union of India submitted that having 
B 
regard to the nature of the functions to be performed by the 
Tribunal and the constitutional scheme of separation of powers 
and independence of judiciary, the expression "consultation with 
the Chairperson" occurring in section 5(5) of the Act should be 
read and construed as "concurrence of the Chairperson". 
C 
(2.3) The third challenge was to Section 7 which provided 
for a Selection Committee comprising of the Chief Justice of 
India or a Judge of the Supreme Court nominated by him, (b) 
Secretary in the Ministry of Law & Justice, and (c) Secretary in 
0 
the Ministry of Finance. It was contended by the petitioners that 
two of the Members who are Secretaries to the Government 
forming the majority may override the opinion of the Chief 
Justice or his nominee which was improper. It was stated on 
behalf of the Union of India that there was no qu

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