The Supreme Court on Thursday indicated that it would set up a five-judge bench to examine the constitutional validity of the various controversial provisions of the Tribunal Reforms Act, 2021.

Chief Justice of India N.V. Ramana told senior advocate Arvind Datar that the court would have to set up a constitution bench in view of complaints that the act continued to have provisions that were contrary to a 2019 judgment of the apex court.

Tribunals are ad judicatory quasi-judicial bodies set up with retired judges to decongest the regular courts and deal with specialised matters.

The Madras Bar Association has challenged the act on the ground that it is an attempt to scuttle the top court’s earlier judgments upholding the independence of the tribunals.

“…Then we’ll have to constitute a five-judge bench,” the CJI-led bench that also had Justices A.S. Bopanna and Hima Kohli observed after Datar, representing the Madras Bar Association, complained that the rules formulated under the act had fixed the tenure of tribunal members at four years instead of five years as mandated by the court.

Datar said the members of the tribunals could continue only up to the ages of 67 or 70 years or “until further orders, whichever is earliest”. Therefore, the discretion on the continuance of the members is vested in the government, which is contrary to the apex court’s five-judge-bench ruling in 2019 that tribunals ought to be free from executive control.

“What’s surprising is the Supreme Court had struck down the ordinance (in 2021), but then identical provisions are made,” Datar said.

The Centre has been trying to have a say in the appointment and continuance of tribunal members, selected by a committee of Supreme Court judges.

CJI Ramana said the court had received an email from attorney-general K.K. Venugopal mentioning that almost all vacancies in the various tribunals had been filled up except in some like the National Green Tribunal, Armed Forces Tribunal and the National Company Law Tribunal.

On September 6 last year, the Supreme Court had warned the Modi government of contempt proceedings if it failed to take immediate steps to fill up the 250 vacancies in the various tribunals. A bench headed by CJI Ramana had said the Centre had shown scant respect for the country’s highest court whose “patience” it was “testing”.

The bench had noted that despite its earlier directions, the government had not taken adequate steps to fill up the vacancies and was instead coming out with fresh laws that were nothing but a “replica” of what had already been struck down by the apex court.

The court on Thursday issued a formal notice to the Union government on a fresh petition filed by Congress leader Jairam Ramesh challenging the constitutional validity of various provisions of the Tribunal Reforms Act.