P L D 1996 Lahore 542 (PLP)

Again in para. 30 of the judgment, it was observed "Taking into account the background in which Article 270‑A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of 'Constitutional deviation'; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law. " The view of the teamed Judge in Khurshid's case as to the legal effect of Article 270‑A of the Constitution is also contrary to the ratio of the judgment of the Supreme Court in. the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC

416. Mr. Justice Muhammad Haleem, the then Chief Justice observed:‑‑ "The next question which arises for consideration is whether the legal measures to which validity has been given by Article 270‑A (1) of the 197 3 ‑‑Constitution can be construed to be prospective in operation by reference to its language as. contended by the learned Attorney‑General. While considering this question it should be bone in mind that the legal measures which have been given validity were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent Authority as enacted by sub‑Article (3) of Article 270‑A. If the legal measure is not itself in existence how can it operate prospectively. The test of the legal measures being prospective must be equally applicable to those which have survived and those which have not survived' which is not the case here. In this connection sub‑Article'(3) of Article 270‑A is itself a clue to the prospective operation of laws which are saved as it gives to them a continuity but not to those which are . repealed. This is also‑against the principle of validation which only remedies the defect retrospectively but does not care for any future operation of the law. Again at page 511, the observation recorded reads: "The deletion of the Political Parties Act manifestly shows the intention of the Legislature not to give validity against Constitutional violations to the laws except those which are specified in the Seventh Schedule. This was because of the Legislature's awareness of the Constitutional limitation on its power to make laws which take away or abridge the Fundamental Rights (Article 8(2) and the validity, therefore, granted could not violate this limitation. " ' The Division Bench of the Sindh High Court which decided the case of Khurshid Alam also decided the other case (Zarat International (Pvt.) Ltd. v. Banking Tribunal No.1, Karachi and 3 others) (1995 MLD 1546) (Karachi) vide its judgments dated 26th April, 1995, recorded the same views regarding the effect of Article 270-A in the judgments. In the case of Zarat International, it was further observed that Banking Tribunals constituted under Ordinance LVIII of 1984 were not covered by Article 212 of the Constitution and there being no clear cut demarcation between a 'Judicial Court' and a 'Judicial tribunal' and in fact both being synonymous and engaged in discharging the functions of the State, Banking Tribunal constituted by the Federal Legislature were intra vires of the ~ Federal Legislative powers. This view was based again on Karachi case 1988 CLC 524 and two Indian judgments.

15. It will now be appropriate to analyse the judgment in the case of.Sindh Glass Industries Ltd. The first thing to be noted is that the Banking Tribunal Ordinance (LVIII of 1984) as originally enacted under challenge in the said judgment has in the meanwhile been amended in material respects and some of the observations made there may not be applicable now. Secondly, the contentions that Ordinance is ultra vires the powers of the Federal Legislative inasmuch as the Tribunal could not have been constituted and that the provisions (section 6 providing shorter procedure and section 9 providing appeal by first depositing decretal amount, etc.) of the Ordinance are violative of Fundamental Rights were examined in the context of the pleas that the composition of the Tribunal comprised of one Judicial Member and two nonJudicial nominees of Government, militates against the concept of Judicial Tribunal or Court and procedural provisions of the Tribunal are departure from the normal procedure followed by Judicial Tribunal or Court. Thirdly, the pleas urged were not based on the principle of separation and independence of Judiciary as mandated in the Constitution contained in Article 175(3) of the Constitution; and also by then period of 14 years fixed by the Constitution for separating the Judiciary from the Executive had not yet expired. It is, therefore, in the aforesaid context that the observations as follows recorded by Mr. Justice Ajmal Mian, the then Chief Justice and presently Senior Judge of the Supreme Court are to be understood:- "We are inclined to hold that it is not the composition of a Tribunal which may determine the nature of its work but it is the work which is entrusted to the Tribunal and the procedure provided to dispose of the same are the material factors for determining the nature of the work of the Tribunal." Again, there is no cavil to the proposition that Entry No.3 read with Entry No.2 of the Concurrent Legislative List provides the power to the Federal Government to legislate the Ordinance in issue but the question is whether the provision made regarding manner of composition and the other powers given to the Federal Government which has the effect of denuding the Special Court or the Banking Tribunal of the essentials of judicial power are not violative of the concept of independence and separation of Judiciary enshrined in Article 175(3) `'read with Article 212 of the Constitution. These Articles in somewhat limited context and in conjunction with Article 136 .of Indian Constitution were examined by late Justice Gul Muhammad in the case of Iftikhar Ahmad (supra) and the pertinent observations made with regard to concept of Court and Tribunal read as under:- "Para. 7.

There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the Constitution of tribunals for purposes expressly given therein and , provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and High Court for each Province have been created tinder that Article while 'power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted with the Indian Constitution. Article 136(1) of that Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause or matter, passed or made by any Court or Tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Thus, while the Indian Constitution recognises existence of tribunals sharing judicial power with Courts, it is conspicuously absent in the 1973- . Constitution. This appears to be a very important departure from the previous Constitutional position as even Article 98(5) of the 1962-Constitution recognised Tribunals along with Courts. Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for tribunals as in the Indian Constitution. It is thus quite clear that the 1973-Constitution of Pakistan recognizes only such specific tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial tribunal is relieved of the duty of deciding a matter before it justly, equitably and objectively. The only difference is that a tribunal is not as much bound by the rules of procedure and the evidence as the Courts of law are. " Learned Judge further held that no executive authority can be empowered to exercise judicial power under Article

175. Para. 8 reads: ‑ "Para. 8.‑‑‑ The Constitution of Pakistan as regards judicial power is thus quite different from that of India and resembles. the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a Legislature shall be ultra vires. Relevant portions from two Australian judgments may also be quoted in support. In the Attorney‑General for Australia v. The Queen and the Boiler Makers Society of Australia (3) an interesting question arise for the decision of the Court under sections 29(l)(b) and (c)' and 2 ' 9‑A of the Common wealth Conciliation and Arbitration Act, 1904‑1952. These provisions purported to vest judicial‑power ‑‑‑ even to the extent of finding a citizen or depriving him of his liberty in the Court of Conciliation and Arbitratiun established under the Act with powers of an administrative, arbitral and executive character. It was held that the said provisions were invalid, because the function of an indwariai arbitrator is completely outside the realm of judicial power and is of a different character. Viscount Simonds, cited with approval' the observations made by Griffith Civil Judge in Wateisidt; Workers Federation of Australia v. Alexander Ltd. (1), that it is impossible under the Constitution to confer such functions (i.e. judicial functions) upon anybody other than a Court, nor can the difficulty be avoided designating a body, which is not in its essential character a Court by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective. "

16. The questions that require to be attended to are: "What is the 'Judicial Power' and what are its concomitant requirements to be provided to the 'judiciary proper' separated from the executive for the exercise of judicial powers freely and independently without any restraint, impediment, obstruction, hindrance, or executive control. in the Lahore judgment, Gul Muhammad Khan', J. after surveying treatises and precedents with regard to judicial power observed:

18. Despite the collection of elaborate views ‑ above, it has been generally observed that the definitions so far attempted are not exhaustive of the term 'Court'. However, inspired by all that has been said so far, and without claiming that it will be exhaustive, in my humble view, 'judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence a justifiable issue, dispute or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called a 'Court' and in performing its functions it declares, construes and applies law o custom or usage, having the force of law. The 'judicial power' is ‑ thus the instrument to be used by the Court. "

17. The Constitution is based on the principle of trichotomy of power in which executive, legislature and judiciary have their own functions independent from each other. The cumulative effect of the concept of independent judiciary enshrined in the Article 175 read with Fundamental Rights of access to justice and "due process of law" was succinctly highlighted by Saleem Akhtar, J. in the case of Government of Balochistan (supra) as follows: "The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 ‑and from then onwards, irrespective of the fact whether steps have been. taken or not judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely semblance of establishing Courts which are authorised to decide 'cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. The Constitution envisages independent judiciary separate from the executive. Thus, ‑ any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25. "Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well. The lower judiciary is a part of the judiciary hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and 'High Court shall supervise and control all Courts. subordinate to it'. Such control and supervision. can be achieved only. When the judiciary is administratively and financially separate from the executive. Separation of Magistracy is the first step towards separation and independence. The next step should be taken to devise proper scheme an ' d frame rules dealing with financial problems within the framework of the Constitution. So, long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people: In this very case with regard to right of access to Courts and justice, it was observed:‑ "An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right to access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Kar. 404 when after referring to Syed Abul A'la Maudoodi's case PLD 1964 SC 673 at 710 and Ms. Benazir Bhutto's case PLD 1989 SC 416 1 had 'observed as follows: 'The right of 'access to justice to all' is a well‑recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willousghby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarized as‑follows: (1) He shall have due notice of proceedings which affect his rights (2) He shall be given reasonable opportunity to defend That the Tribunal or Court before, which his, rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4) That it is a Court of competent jurisdiction. It, therefore, follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and Tribunal ' Unless an impartial and independent, Court is established the right to have a fair trial according to law cannot be achieved. Therefore, justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it.' ......... Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such 'Courts and are to be tried or rights adjudicated by Special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases "where Special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing 'persons on the Tribunal, providing procedure or imposing any sentence or conviction. Such Special Tribunals and Courts must follow the ordinary rules of justice, equality and good conscience. In fact the administration of justice cannot be made subject to or controlled by the executive authorities. At this stage notice taken of Sharaf Faridi's case PLD .1994 SC 105 arising out of the celebrated judgment delivered by Mr. Justice Ajmal Mian of the Sindh High Court (as his Lordship then was). Learned Judges of the Supreme Court not only approved the view taken by the Sindh High Court but also directed the Government to separate the Judiciary from Executive and also to secure and allow financial independence to the Judiciary. It was also noted that the independence of Judiciary means (a) that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and (b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature. The question of independence of Judiciary also came for consideration before the Supreme Court in the celebrated judgment of Al‑Jehad Trust V. Federation of Pakistan and other PLD 1996 SC

882. Mr. Justice Sajjad Ali Shah, Chief Justice analysing the relevant Constitutional provisions remarked: "

34. At this stage, it would be pertinent to look at the Constitution of the Islamic Republic of Pakistan, 1973 very minutely to find out as to what status does it provide for the Judiciary and how far it intended to make the judiciary independent within the scheme and the four comers of the Constitution. In ' the preamble to the Constitution, the Objectives Resolution is reproduced which enunciates that the principles of democracy, freedom, equality, tolerance ' and social justice as enunciated by Islam shall be fully observed and independence of the Judiciary fully secured, it also provides that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out by the Holy Qur'an and Sunnah. Article 2A of the Constitution envisages that the principles and provisions set out in the Objectives Resolution are‑ hereby made substantive part of the Constitution and shall have effect accordingly. Article 2 of the present Constitution commands that Islam shall be the State religion of Pakistan. Part IX of the Constitution contains the Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. What is very important in this context is the fact that ' Article 2A was inserted in the Constitution by P.O. No.14 of 1985 and made the substantive part of the Constitution which blends the Constitution with the spirit of Islam " Learned Chief Justice on the questions of appointment of Judges and consultation with the head of the Judiciary observed:

46. In the book titled which is authored by Syed Abul A'la Moudoodi at page 95 on the subject of 'Supremacy of Law it is mentioned that the Caliphs did not consider themselves to be above the law, but considered . themselves to be equal with‑ the common citizens in the eyes of law. Even if the Qazis were appointed by the Head of the State, but after such appointment Qazis became independent in giving decisions against the Head of State as they could give in respect of ordinary citizens. One instance is quoted in which Hazrat Ali saw a Christian in the 'bazar' who was selling an armour belonging to Hazrat Ali. The latter did not exercise his authority to snatch the armour but lodged a complaint with the Qazi who gave decision against the Amirul Mournineen as he could not produce satisfactory evidence. Another instance often quoted is that once Hazrat Ali appeared in the Court of a Qazi in a dispute with another person and Qazi stood up from his seat in deference. to Hazrat Ali which was deprecated by the latter as conduct highly improper and inconsistent with the independence of the Judiciary.

47. The purpose of quoting from the Islamic books is to show as to how much importance is given in Islam to 'consultation' and how much respect and binding force is given to the opinion of the Qazi or judge and very wide powers given to the Chief Justice including all appointments of subordinate ‑Judges under him.

48. The word "consultation" used in the Constitutional provisions relating to the Judiciary is to be interpreted in the light of the exalted position of the Judiciary as envisaged in Islam as stated above, and also in the light of the several provisions in the Constitution which relate to the

49. Judiciary guaranteeing its independence. An attempt has been made to trace the history of the Judiciary in the Constitutional and the legal documents which governed India before the partition. Since both India and Pakistan were one country before 1947, they inherited more or less the same type of problems and difficulties in their judicial systems with which we are concerned at present. Both the countries have made provisions in their respective Constitutions under which the judicial systems are set up and governed and methodology is provided for appointment of Judges. The pivotal point in both the judicial systems in, the process of appointments is the word I consultation' which is categorically defined in India in the famous case of Supreme Court Advocates‑on‑Record Association v. Union of India AIR 1994 SC 268 giving primacy to the opinion of the Chief Justice of India. In the Constitution of. 1973, by which Pakistan is being governed, in the chapter relating to' the Judiciary and in the process of appointments, the same word 'consultation' is used. Mr. Justice Ajmal Mian in this very case in his judgment speaking on the questions of independency of Judiciary and right of .access to Justice quoted the observations recorded in Azizullah Memon's case and observed: 19. 1 am inclined to agree with the above view as I have already observed hereinabove that ‑ without having an independent Judiciary, ‑ the Fundamental Rights enshrined in our Constitution will be meaningless and will have no efficacy or beneficial value to the public‑at‑large. Learned Judge after quoting Verses from the Holy Qur'an and Traditions of the Prophet of Islam (p.b.u.h.) and other literature noted down the principles to be followed in the matter of appointment of Judges and essentials of exercise of judicial power: "

22. From the above‑quoted Verses from Holy Qur'an and other literature on the subject, inter alia the following is deducible:‑ (i) That the Holy Qur'an repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (p.b.u.h.), Qur'an and Surmah, should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin, rich and poor; (iii) that the Judges are not to be led by personal likes or. dislikes, love or hate; that the hatred of others should not make you severe, to wrong and depart from justice; (iv) that the Judges should maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential; (v) to a Judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a Aidge should.judge without any distinction whatsoever; (vi) that a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and lifting facts from fiction and when truth presented itself to them, he must pass judgments without fear, favour or prejudice; (vii) that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merits is a great sin entailing severe punishment; (vi ii)that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior calibre and meritorious record. Abundance of litigations and complexity of cases should not make them Iose their temper; (ix) that a Judge should not be corrupt, covetous or greedy; (x) that a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption; (xi) that a Judge must be a man of having deep insight, profound knowledge of Shariah, God‑fearing, forth right, honest, sincere man of integrity; (xii) that a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the path of rectitude; (xiii) that Judges should be given such a prestige and position in the State that none of the Government functionaries can over lord them or bring them harm. Thus, it stands recognized that even if the power of appointment or of. establishment of a Court vests in the Government/Executive, the appointments cannot be made arbitrarily, and the said power or appointment is to be exercised through meaningful consultation of the judiciary or its head (Chief Justice), and judicial power cannot be invested by the Executive by appointing persons on its own, providing any procedures or imposing any sentence or conviction so as to A control free and fair exercise of judicial power.

18. The attributes of judicial power essential for providing equal protection of law by an independent Judiciary have also been discussed by the Indian Supreme Court in its judgments. Before surveying these judgments, the distinctive features of the Indian Constitution as to swpt; of jurisdiction relating to Tribunals are to be kept in view. Articles 323‑A and 323‑B compromising Part XIV‑A added by the Constitution (Forty Second Amendment) Act, 1976 enabled the Parliament to constitute administrative Tribunals to deal with ,disputes as to terms and conditions of service appointed to public service (Article 3Z3‑A) and also to provide for the jurisdiction, power and authority of such Tribunals and to prescribe procedure of the Tribunal. Such a, law may provide for the exclusion of jurisdiction of all Courts except that of Supreme Court under Article

136. Similar Tribunals may be established with respect to matters such as Tax, Foreign Exchange, Election of ‑Labour disputes, etc. Article 136 empowers Supreme Court of India to grant special leave from any judgment passed by Court or Tribunal whereas under Article 212 of the Pakistan Constitution, an appeal by special leave is provided against any judgment/order of the Tribunal referred to in clauses (a) to (c) of para. I of above Article and other Tribunals as are provided in Indian Constitution have not been provided, for. Moreover, under Article 227 of the Indian Constitution, every. High Court enjoys the power to have superintendence over all. Court ' s and Tribunals within its jurisdiction whereas under Article 203 of Pakistan Constitution every High Court has been empowered to supervise and control all Courts subordinate to it but it does not refer to Tribunals. So, wherever judicial power vests in a body/forum, whether designated as a Court or Tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/forum/Court or Tribunal under the mandate of the Constitution has to vest in the High Court. It will also be noted that express power has been conferred by the Indian Constitution to constitute/establish Tribunals alongwith the Courts in respect of matters/subjects enumerated in Articles 323‑A and 323‑B which also provide for the exclusion of judicial review by the High' Courts and the theory of separation of judiciary as is enshrined in Pakistan Constitution is not contemplated in Indian Constitution.

19. Despite the above noted provisions of the Indian Constitution, the Supreme Court of India has maintained and preserved the principle of independence of judiciary, The Parliament passed the Administrative Tribunals Act, 1985 authorising the Central Government to establish administrative tribunals for specified subjects. The tribunal was to consist of a Chairman and such number of Vice‑Chairmen and other members and the appropriate 'Government may deem fit. The‑ qualifications for becoming Chairman, Vice Chairman or member of a Tribunal are laid down in the Act. An existing or former Judge of the High Court is qualified for all the three posts. Persons only with the administrative experience without any judicial qualifications can also be appointed. It was among others, on the ground of qualifications, that the validity of the Act was challenged in S.P. Smanith Kumar v. Union of India and others AIR 1987 SC

386. The Court held that it was necessary that the Chairman for the Tribunal should be a former of retiring Chief Justice or a Senior Judge of a High Court though a person with the qualifications of a High Court Judge with two years' experience as Vice‑Chairman could also be appointed as Chairman. It was further recommended that all appointments were to be made by a high powered committee with a sitting Judge of the Supreme Court as its Chairman. On the question of mode of appointment of judicial as well as non‑judicial members of the Tribunal, the observations, being instructive are reproduced: "

6. That takes me to another serious infirmity in the provisions of the impugned Act in regard to the mode of appointment of the Chairman, Vice‑Chairman and members of the Administrative Tribunal. So far as the appointment of judicial members of the Administrative Tribunal is concerned, there is‑ a provision introduced in the impugned Act by way of amendment that the judicial members shall' be appointed by the Government concerned in consultation with the Chief Justice of India. Obviously no exception can be taken to this provision because even so far as Judges of the High Court are concerned, their appointment is required to be made by the President inter alia in consultation with, the Chief justice of India. But so far as the appointment of Chairman, Vice Chairman and administrative members is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the impugned Act. There is no obligation (sic) on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion the Government to appoint such person or persons as it likes as Chairman, Vice‑Chairman and administrative members of the Administrative Tribunal. Now it may be noted that almost. all cases in regard to service matters which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice‑Chairman and administrative members, if a judicial member or an administrative member is looking forward to promotion as Vice‑Chairman or Chairman, he would have to depend on the goodwill and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal ... ... .. ... ... ... ... ... ... ... ... ... ... ... ... There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the independence of the Chairman, Vice‑Chairman and members of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision‑making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such cases ... ... ... ... .. . : This check or safeguard is totally absent in the case of appointment of the Chairman, ViceChairman and administrative members of the. Administrative Tribunal and the possibility cannot be ruled out indeed the litigating public would certainly carry a feeling that the decision making process of the Chairman, Vice‑Chairman and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion. It can no longer be disputed that total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential fedture of the Constitution. The Constitution‑makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore, if the Administrative Tribunal is created in substitutior uf the High Court and the jurisdiction ‑of the High Court under Articles 226 and 227 is takun away and vuNted in theAdministrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice‑Chairman and members of the Administrative Tribunal ... ... ... ... .... ... ... ... ..... I am, therefore, of the view that the appointment of Chairman, Vice‑Chairman and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons. There,is also another alternative which may be adopted by the Government for making appointments of Chairman, Vice‑Chairman and members and that may be by setting up a high powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of India. Both these 'modes of appointment will ensure selection of proper and competent persons to man the Administrative Tribunal and give it prestige and reputation which would inspire confidence, in the public mind in regard to the competence, objectivity and 'impartiality of those manning the Administrative Tribunal. If either of these two modes of appointment is adopted, it would save the impugned Act from invalidation. Otherwise, it will be outside the scope of the power conferred on Parliament under Article 323‑A." The reference may also be made to the decision of the Indian Supreme Court in special reference respecting the validity of Special Courts Act, 1.97.81 AIR 1979 Supreme Court 478:‑ "The provisions of the Bill appear to be unfair and unjust in three important respects. In the first place, there is no provision in the Bill for the transfer of cages froth one Special Court to another. The manner in which a Judge conducts himself may disclose a bias, in which case the interest of justice would require that the trial of ‑the case ought to be withdrawn from him. There are other cases in which a Judge may not in fact be biased and yet the accused may ' entertain a reasonable apprehension on account of attendant circumstances that he will not get a fair trial. There are yet other cases in which expediency or convenience may require the transfer of a case, even if no bias is involved, The absence of provision for transfer of trials. in appropriate cases may undermine the very confidence of the people in the Special Courts as an institution set up for dispensing justice The second infirmity from which the procedural part, of the . Bill sufferg is that bu Clause 7, Special Courts are to be presided over either by a sitting Judge of a High Court or ~y a person who has held office as Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India. A retired Judge‑presiding over a Special Court, who displays strength and independence may be frowned upon 'by the Government and there is nothing to prevent it from terminating his appointment as and when it likes. Clause 7 of the Bill violates Article 21 of the Constitution to the extent that a person who has held office as a Judge of the High C 6_uirt can be appointed to preside over a Special Court. Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. There is no provision to obtain his concurrence. There are the three 'Procedural infirmities from which the Bill suffers and which are violative of Article 21 of the Constitution, in the sense that they make the procedure prescribed by the Bill unjust and unfair to the accused. The Bill is valid and Constitutional in all other respects." 'Me next case worth noticing is that of Delhi High Court in the case of Delhi High Court Bar Association and another v. Union of India and others AIR 1995 Delhi

323. In this case the Constitutional validity of the recovery of debts due to Banks and Financial Institutions Act, 1993 on the ground that Act is unreasonable and is violative of Article 14 of the Constitution and that it is beyond the legislative competence. of the Parliament to enact such a law was challenged. The appointment of the Presiding Officer as the debts recovery Tribunal under section 5 of the Act was also challenged. The statement of objects and reasons in enacting the statute was that the banks and financial institutions were experiencing considerable difficulties in recovering loans and enforcement of securities charged with them that the existing procedure for recovery of debts due with the banks and financial institutions had locked a significant portion of their funds amounting to billions in unproductive assets and that Special Tribunals with special cause and adjudication of such matters and speedy recovery ‑as critical to the successful implementation of the financial sector was needed to be established. Section.4 provided the appointment of the Presiding Officer of the Tribunal by the Central government and section 5 provided that a person shall not be; qualified for appointment as thc Presiding Officer unless he is oi has been or is qualified to be a District Judge, Section 6 provided that the Presiding Officer shall hold office for a term of five years from. the date on which he enters the office or until the age of sixty years whichever is ,earlier. The observations made and the findings recorded in this case may now be reproduced:‑‑ "

47. As noted above, independence of judiciary is one of the basic tenets and a fundamental requirement of our Constitution. Any inroad into independence of judiciary is frowned upon by the Courts. The constitution of a Tribunal under the Act is a negation of the principles of independence of judiciary. As the provisions‑ of the Act show, the Tribunal and the Appellate Tribunal are fully within the control of the Central Government and before whom the principal litigant would be the Central Government itself. The provisions of the Act as such, no sitting Judge would rather like to be the Presiding Officer of the Tribunal or the Appellate Tribunal. This would leave a free field for the Central Government to appoint retired Judges without having any recourse to the High Court. Apprehension was expressed during course of arguments that Presiding Officer chosen by the Central Government would remain entirely under the thumb and control of the Central Government. Reference was made. to section 16 of the Act which provides that no order of the Central Government appointing any person as the Presiding Officer of a Tribunal or and Appellate Tribunal shall be called in question‑in any manner on the ground merely of any defect in the constitution of a Tribunal or an Appellate tribunal .'

50. Civil Courts which are directly under the control and superintendence of the High Court trying bank suits the suits of creditor and debtor relationship, have been deprived of their jurisdiction and . the jurisdiction conferred on a Tribunal which is against the theme of the Constitution and independence of judiciary which as noted above, is a basic feature of the Constitution. It is rightly s ‑ aid that the Act erodes independence of judiciary. It is a case where jurisdiction of a Civil Court has been truncated and it has been deprived of existing jurisdiction. It is a different matter if in a law enacted by Parliament jurisdiction is conferred on the Civil Court, but when the existing jurisdiction is taken away and conferred on a Tribunal having only trappings of a Court, it certainly affects the independence of judiciary. We cannot visualize a situation where a Court is continuously deprived of its ordinary jurisdiction and the same is conferred on the Tribunal under the control of the executive. Since the Act erodes the independence of judiciary, it is unconstitutional and is void. " As regards the appointment of the Presiding Officer of the Tribunal and the mode of recruitment, learned Judges observed that under the Constitution the judiciary at a level enjoys compietr‑, independence from th.c hAccutivt: as well as the Legislature. Article: 50 provides for the separator. of Judiciary from the Executive. Complete separation has been achieved except perhaps in certain ,North Eastern pockets. I he same cannot be said of Tribunals constituted under laws enacted under Article 323‑A or 323‑B of the Constitution, Court directive notwithstanding. The Tribunals established and constituted under' similar ,provisions remained within the administrative control of the Executive. The people's confidence which the Courts enjoy because of total independence from the Executive is naturally not enjoyed to the same degree by Tribunals so constituted because of lack of complete independence. Clearly, the bureaucracy has two obvious advantages in expiring tribunal justice viz. (i) it acquires control over fields where it had none, and (ii) new avenues for appointing its retired members become available. But the members so appointed do not have a sufficiently long tenure. Short tenures do not bring about involvement which is so vital to the strength of an institution. Noting these features it was held that though Tribunal could be constituted by Parliament not falling with Articles 323‑A and 323‑B of the Constitution, the Act called 'the Recovery of Debts Due to Banks and Financial Institution, 1993', is unconstitutional as it erodes the independence of Judiciary and is irrational, discriminatory, unreasonable, arbitrary and is hit by Article 14 of the Constitution.

20. The principles deductible from the survey of the Constitutional provisions and the case‑law are that in order to comply with the * mandate of independence and separation of Judiciary, the Courts howsoever designated as 'Special Court' or 'Tribunal' are to be established and constituted . by making appointment with meaningful consultation of the Chief Justice of the High Court and by providing security of tenure for a period which will not act as a disincentive, such a tenure should then be secured by making necessary provision in the Statute itself. The concept of consultation with the Chief Justice/the High Court is not a new concept introduced by the Supreme Court in its recent judgment. The consultation with the High Court is provided by the Civil Courts Ordinance, 1962, for making appointments of District Judges tinder section 5, for Additional District Judges under section 6 and for Civil Judges under section 8 of the Ordinance. The relevant provisions may be quoted hereunder:‑ "Section

5. District Judges. ‑'‑Government shall, in consultation with the High Court, appoint as many persons as. it thinks necessary to be District Judges and post a District Judge to each district. Section

6. Additional District Judges.‑‑(I)' Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary. Section

8. Civil Judges. ‑‑Government may, in consultation with the High Court‑ fix the number of the Civil Judges to be appointed; make rules prescribing qualifications for recruitment of persons as Civil Judges and appoint as many Civil Judges as may be deemed necessary. Even the Executive Magistrates who desire ‑to be absorbed in the Judiciary un option are to be accepted by the High Court provided they fulfil the requisite qualifications prescribed by the relevant Service Rules. The appointments made to the judicial posts/tribunals as such by any contrary method is thus violative of the theory of independence of Judiciary. In addition to these features, the power to transfer cases from one Tribunal to the other is not to be left to the discretion of the Executive and financial independence is also to be secured.

21. The provisions of the two Statutes, seen in the light of these principles, would be found to be infringing and violating the concept of independence and separation of Judiciary. The appointments of the Presiding Officers have been made by the Federal Government in its sole discretion in some cases of the persons who were office‑bearers of the party in power and in other cases of persons who may not be qualified to be appointed as a Judge of the High Court or a District Judge as in many cases they, it was pointed out ,did not fulfil the criteria of active practice for the prescribed years. Be that as it may, these appointments have been made till further order or for a short time with no security of tenure whatsoever. The appointment is terminable at any time and without assigning any reasons as no provision is made to secure tenure or appointment. Even the powers transfer cases rests with the executive and the supervision and the control of the High Court is altogether excluded.

22. For the above reasons, sections 3 and 4 of the Offences in Respect of Banks (Special Courts) Ordinance,. 1984 (Ordinance No. IX of 1984) and sections 3, 4 and 4‑A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act No ' XV of 1975) are hereby declared, unconstitutional as these erode the independence of judiciary and the notifications appointing the Presiding Officers to these Special Courts are quashed. Having held the aforesaid laws to be unconstitutional to the extent above mentioned, the course open to the Federal Government is to submit the challans before the Criminal Courts of competent jurisdiction or to notify the Sessions Judges/Additional Sessions Judges as the Special Courts under Act XV of 1975 and appoint qualified persons in consultation with the High Court under section 3 of the Ordinance of 1984 for trial of criminal cases under the aforesaid laws. Of course, the legal deficiencies pointed out in other provisions of the laws will have to be rectified, if the accused are to be tried by the Special Courts under these laws, otherwise the cases will have to be tried by ordinary Criminal .Courts. If this course is adopted, the High court will, nominate appropriate number of officers of the rank of Additional Sessions Judges to try the criminal cases on priority basis and thus the Government can save the amount being spent on the establishment of Special Courts. The money so saved can beneficially be used for strengthening the Judiciary by sanctioning the much needed additional strength of Judges at the lower Courts as well as the High Court.

23. Before parting with the cases. we may also state that the declarations made by us in this judgment shall not affect cases past and closed or invalidate the judgments, orders or sentences passed or the ‑proceedings which may have become final. The appeals pending in the High Court shall be disposed of in a&ordance with law. The files of the cases pending with the Special Courts ‑shall be transmitted to the High Court for entrustment to the Courts of.competent jurisdiction for disposal in accordance with‑law. I With the aforesaid declarations and observations, the writ petitions ar accepted. Parties are, however, left to bear their own costs. M. B. A ‑9 (Sd.) (Khalil‑ur‑Rehman Khan Chief Justice. (Sd.) (Tanvir Ahmad Khan), . Judge. (Sd.) (Malik Muhammad Qayyum judge Petition accept(