The Madras High Court has declared unconstitutional a 2016 amendment made to the Benami Transactions (Prohibition) Act of 1988 to ensure that only members of Indian Legal Service and those who had held the post of Additional Secretary or equivalent post in that service can be appointed as judicial members of an appellate tribunal under the enactment.
Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy agreed with advocate V. Vasanthakumar that bureaucrats, with no legal experience, could not be appointed as judicial members. Referring to a similar view having been taken by the Supreme Court in 2011, the judges directed the government bring in a new amendment in accordance with that verdict.
In the 2011 verdict delivered in Union of India versus R. Gandhi, president of Madras Bar Association, the Supreme Court had held that only judges and advocates could be considered for appointment as judicial members of a tribunal. Either High Court judges or judges who had served in the rank of a district judge for at least five years or a person who had practised as a lawyer for 10 years could be considered.
Persons who had held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) could not be considered for appointment as judicial members, the court had ordered.
