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Finally, the plaintiff has fairly placed another recent judgment of a Constitution Bench rendered on May 11, 2010 in Civil Appeal No. 3067 of 2004 (Union of India v. R. Gandhi, President, Madras Bar Association) with Civil Appeal No. 3717 of 2005 (Madras Bar Association v. Union of India) on the creation of the National Company Law Tribunal and the National Company Law Appellate Tribunal and vesting in them the powers and jurisdiction exercised by High Courts in respect of company matters. The argument challenging the transfer of authority from High Courts to the tribunal was on the ground that it is in breach of the basic principles of the rule of law, separation of powers and independence of the judiciary. One of the questions that arose was as to whether there was any demarcating line for the Parliament to vest intrinsic judicial functions traditionally performed by courts to any tribunal or authority outside the judiciary. The Court noticed that independence of the judiciary has always been regarded as part of the basic structure of the Constitution and though there was no strict separation of powers in the Constitution, judicial power in the sense of judicial power of the State was vested in the judiciary. At paragraphs 32 and 33 of the judgment it was held:

If there is no adequate remedy available before a tribunal to a constituent, the civil court can scarcely shoo away a constituent who has carried an action before it on the ground that the subject-matter of the action is inextricably linked to the claim by a bank or financial institution launched before a tribunal under the 1993 Act. The civil court has to leave it to the volition of the constituent to carry his claim to the tribunal and expose himself to the vagaries of the 1993 Act.

In a different way, the more deep-rooted objection of the plaintiff is in the whittling down of judicial authority in even entertaining an application of the present nature to rob a claimant of his right to approach a civil court for a perceived civil wrong. The anguish of this plaintiff has to be understood as a protest to the outsourcing of the core judicial function to a body that is not within the institution that goes by the name of judiciary. The underlying submission of the plaintiff is that the duty of adjudication is the domain of the judiciary and it is inviolable under the Constitution; being even more fundamentally ingrained than the basic structure of the Constitution. The argument, however, cannot be noticed in view of the specific finding in the still unreported judgment of R. Gandhi that the legislature has the "power to transfer judicial functions traditionally performed by courts to Tribunals."

The independence of the judiciary, which is recognised as a basic structure of the Constitution, has two facets: institutional independence and functional independence. Institutional independence would preclude overlapping membership, an extent of freedom in the matter of appointment and continuation in office and the like. Functional independence would relate to the authority of the institution to exercise the function for which it is designed. In a sense, the doctrine of separation of powers, however flexible, would include both institutional separation and functional separation which are not mutually exclusive. But any form of separation of powers would fundamentally incorporate an extent of either kind of independence. That the core function of the judiciary would be to adjudicate is a given in the Constitution; it is a fundamental constitutional assumption so rudimentary that it may have been felt to be too obvious to have been spelled out in as many words.