HC orders notice to AGI on plea related to law on benami transactions

The Madras High Court has ordered notice to the Attorney General of India (AGI) on a petition seeking to declare certain provisions of a law related to benami transactions as "unconstitutional".

The first bench of Chief Justice Indira Banerjee and Justice P T Asha passed the order on a petition filed by advocate V Vasanthakumar.

The petitioner has submitted that the provisions of the Prohibition of Benami Property Transactions Act, 1988, relating to the appointment of a judicial member, are against the doctrine of separation of powers, which forms the basic structure of the Constitution.

The said provisions empower the central government to appoint judicial members to adjudicate matters related to benami transactions.

"Since the provisions (9 and 32 (2) of the Act) restrict the qualification for appointment as judicial members to the Indian Revenue Service and the Indian Legal Service, it deprives the equality of opportunity to the practising advocates as held by the Supreme Court in the Madras Bar Association vs Union of India case," the petitioner has contended.

It goes against the fundamental right of equality guaranteed under Article 14 of the Constitution to the legal fraternity, he has noted.

The provisions also suffer from severe constitutional infirmities as they draw members to the appellate tribunal from the IRS and the Indian Legal Service, whereas the apex court has categorically held that if a three-member tribunal is constituted, the number of technical members shall not exceed the number of judicial members, the petitioner has claimed.

He has further claimed that the provisions virtually transfer the judicial functions to the executive and run counter to the independence of the judiciary.