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SC declares National Tax Tribunal unconstitutional as ‘ultimate encroachment’ on judicial domain [READ JUDGMENT]

A Supreme Court constitutional bench of Chief Justice of India (CJI) RM Lodha, and justices JS Khehar, J Chelameswar, AK Sikri and Rohinton Nariman have declared the proposed National Tax Tribunal (NTT)unconstitutional, quashing sections 5, 6, 7, 8 and 13 of the Act, rendering the law practically useless.

Nariman held the entire act unconstitutional, on the basis of separation of powers and judicial superintendence.

[Download judgment]

The lead petition was brought by the Madras Bar Association and was clubbed with several other cases deciding on the legality of the NTT, that was established by a 2005 Act of Parliament, with the power to adjudicate appeals from various tax appellate tribunal orders, which was previously the domain of the high courts.

The majority held:

91 (i) The Parliament has the power to enact legislation, and to vest adjudicatory functions, earlier vested in the High Court, with an alternative court/tribunal. Exercise of such power by the Parliament would not per se violate the "basic structure" of the Constitution.

(ii)  Recognized constitutional conventions pertaining to the Westminster model, do not debar the legislating authority from enacting legislation to vest adjudicatory functions, earlier vested in a superior court, with an alternative court/tribunal. Exercise of such power by the Parliament would per se not violate any constitutional convention.

(iii)  The "basic structure" of the Constitution will stand violated, if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure, that the newly created court/tribunal, conforms with the salient characteristics and standards, of the court sought to be substituted.

(iv)  Constitutional conventions, pertaining to constitutions styled on the Westminster model, will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced, are not incorporated in the court/tribunal sought to be created


(vi)  Examined on the touchstone of conclusions (iii) and (iv) above, Sections 5, 6, 7, 8 and 13 of the NTT Act (to the extent indicated hereinabove), are held to be unconstitutional. Since the aforesaid provisions, constitute the edifice of the NTT Act, and without these provisions the remaining provisions are rendered ineffective and inconsequential, the entire enactment is declared unconstitutional.

Nariman, while concurring that the NTT was unconstitutional, went further, and held in a separate judgment:

Chandra Kumar and R. Gandhi have allowed tribunalization at the original stage subject to certain safeguards. The boundary has finally been crossed in this case. I would, therefore, hold that the National Tax Tribunals Act is unconstitutional, being the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.

Mint noted that the judgment could also affect the fate of other tribunals, such as the National Company Law Appellate Tribunal (NCLAT) that is currently facing challenge.

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