A two-judge bench of the Madras High Court has invalidated section 32(2) of the Benami Transaction Act held that the Member of Indian Legal Service shall not be appointed as a Judicial Member.
The petitioner, Mr. V Vasanthakumar appearing in person, submitted that the qualification for appointment as a Judicial Member of the Appellate Tribunal given under Section 32 of the Act of 1988 is now hit by the judgment of the Apex Court in the case of Union of India v. R.Gandhi, President, Madras Bar Association, (2010) 11 SCC 1.
The bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy observed that Section 32(2)(a) of the Act of 1988, postulates the qualifications for appointment of a Judicial Member and, as per the said provision, a Member of the Indian Legal Service who held the post of the Additional Secretary or equivalent post in that service is eligible for appointment as a Judicial Member in the Appellate Tribunal.
“In view of the provision aforesaid, other than the member of the Indian Legal Service, none else other than given under sub-section (3) to Section 32 of the Act of 1988 would be eligible to be appointed as Judicial Member of the Tribunal,” the Court said.
“It is true that the extent of judicial review that can be exercised in a given case is quite limited. Though a constitutional court can declare a provision to be unconstitutional, it should not give any direction to the Legislature to make an amendment in a particular way. The judicial restraint is, therefore, being hailed as a virtue. However, in a case where a direction has been given by the Apex Court to have the judicial independence, it is required to be followed by the High Courts as well as the Executive,” the Court said.
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