2020 Statelessness & Citizenship Review 2(1) In R K Jain v Union of India, the Supreme Court of India has held that a person appointed to ‘Tribunals’ must have legal expertise, judicial experience and a modicum of legal training as on many an occasion different and complex questions of law would arise for discussion and decision. 72 In Pareena Swarup v Union of India, the Supreme Court of India has held that as judicial powers were to be exercised by the Appellate Tribunals under the Prevention of Money-Laundering Act, 2002, the constitutional courts were obliged to protect the constitutional guarantee of independence of judiciary. 73 Thus for instance if the law allows the executive to appoint a natural person sympathetic to its cause or a person who is not trained to resist influence, such a law would be unconstitutional. The freedom from control and potential domination of the executive are necessary preconditions for judicial independence, and one of the ways in which control over a judge could be exercised is by modifying the selection criteria and regulating the terms of appointment. Thus, the qualification of judges affecting his or her independence and capability is regarded as an essential component of the rule of law. 74 Under the Indian law the constitution, qualification and service conditions of the judges or members of a tribunal are required to be regulated by law. However, it is not the case when it comes to FTs. In the next section, this article will look at how FTs are established and controlled by the executive rather than the legislature. In so far as the appointment of judges/member to the FTs is concerned, [2](2) of the FTO (and not the Foreigners Act, 1946) provides that ‘[t]he tribunal shall consist of such number of persons having judicial experience as the Central Government may think fit to appoint’. Recall that the Foreigners Act, 1946 is completely silent on the specific qualification and expertise of members or judges who are to preside such tribunals, leaving it in the hands of the executive to pick and choose the judges who are required to preside over the tribunal without any control of the legislature. The only limitation on the power of the Central Government arises from the use of the phrase of ‘judicial experience’ in [2](2) of the FTO, whereas this should have been prescribed by legislature in the Act instead. Thus, the FTO is itself outside the constitutional limits. It is relevant that, for example, monetary or civil issues dealing with appointment, termination, retrenchment etc of a workman are legislatively required to be adjudicated by the Industrial Disputes Act, 1947. 75 Section 3 of the Industrial Disputes Act, 1947 provides that a person shall not be qualified for appointment as the presiding officer of a labour court unless he has held judicial office for a specified length of time. 76 72 73 74 75 76 [1993] 4 SCC 119 (Supreme Court of India) [67]. (2008) 14 SCC 107 (Supreme Court of India) [9], citing Prevention of Money-Laundering Act, 2002 (India) Act No 15 of 2003. Union of India v Namit Sharma [2013] 10 SCC 359 (Supreme Court of India); Union of India v Madras Bar Association [2010] 11 SCC 1 (Supreme Court of India). Industrial Disputes Act, 1947 (India) Act No 14 of 1947. ibid s 7(3): A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless— (a) he is, or has been, a Judge of a High Court; or (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or … 125