The Tribunals Judgment – I: A Course Correction on the Money Bill

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

Yesterday, a Constitution Bench of the Supreme Court delivered an important judgment concerning the constitutional validity of the Finance Act of 2017. Briefly, through the Finance Act, Parliament had merged a number of Tribunals, and delegated to the government the task of framing rules for their functioning. The Finance Act had been passed as a money bill, which barred the Rajya Sabha from amending it. There were, therefore, three issues before the Court: (i) whether the Speaker of the Lok Sabha had correctly certified the Finance Act as a money bill; (ii) whether Section 184 of the Finance Act – the delegation provision – was constitutional, and if it was, whether the rules the government had framed for the Tribunals were constitutional; and (iii) miscellaneous issues around the functioning of Tribunals in the country. The last issue – strictly – is one of legal policy, and I will not discuss it here. This post will discuss the debate around the money bill, and the next post will discuss Section 184.

The debate around the money bill was framed in the background of the Supreme Court’s Aadhaar Judgment, of September 26, 2018. Recall that in the Aadhaar Case, the Speaker’s certification of the Aadhaar Act as a money bill was under challenge. There were a number of issues that the Court had to consider: first, whether the Speaker’s decision was subject to judicial review; secondly, if it was, how was the Court to interpret Article 110 of the Constitution, that set out the conditions for what constitutes a money bill?; and thirdly, was the Aadhaar Act correctly certified as a money bill?

As Suhrith Parthasarathy pointed out repeatedly in the aftermath of the Aadhaar Judgment, the majority decision returned a confused set of findings on this issue. The primary reason for this was that it mixed up the order of the questions. Instead of first deciding whether the Speaker’s certification was subject to judicial review, it went ahead and reviewed the law anyway – thus implying that it was – but later, went on to say that it wasn’t answering the question of review. On the substantive issue, it first struck down a provision of the Aadhaar Act (Section 57) that clearly couldn’t be traced back to Article 110 – and then held that the rest of the Act passed scrutiny as a money bill. The consequence of this was that it failed to provide clear standards for how the Court should interpret Article 110.

Importantly, the majority judgment in The Tribunals Case – authored by the Chief Justice – points this out clearly and unambiguously. In paragraph 122 it notes that:

Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches.

Having taken this view, the Chief Justice then correctly refers the question to a larger bench for resolution. In doing so, however, he also makes it clear that on the point of judicial review, the law is now settled. By examining the Aadhaar Act on merits, it was a necessary implication that the question of the Speaker’s certification is subject to judicial review (and this in line with previous judgments, such as Raja Ram Pal); and contrary judgments, such as Siddiqui, now stand expressly overruled. The consequence, then, is this: the speaker’s certification of money bills is now subject to judicial review. The standards that a Court must apply – balancing respect for the Speaker’s prerogative against the importance of bicameralism and the Upper House – will be decided by a larger bench.

In this context, Chandrachud J.’s concurring opinion repays careful study. Recall that Chandrachud J. had dissented in the Aadhaar Case, including on the point of money bill. Here, he takes the argument further. After setting out the history and origins of money bills in British parliamentary practice, and noting that as a matter of constitutional text and structure, the “finality” of the Speaker’s decision doesn’t necessarily exclude judicial review, Chandrachud J. comes to the heart of the case: the issue of bicameralism. Put very simply, “bicameralism” refers to the existence of two legislative chambers, where – depending upon the circumstances – the participation and/or concurrence of both  chambers is required to pass laws. In the Indian context, “bicameralism” is a specific, structural check upon majoritarianism, as well as a guarantee of states’ representation in the federal scheme. The Rajya Sabha exists both to articulate the interests of the states in Parliament, as well as act as a check upon the Lok Sabha. Thus, as Chandrachud J. notes:

The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an indispensable constitutive unit of the federal backbone of the Constitution. Potential differences between the two houses of the Parliament cannot be resolved by simply ignoring the Rajya Sabha. In a federal polity such as ours, the efficacy of a constitutional body created to subserve the purpose of a deliberate dialogue, cannot be defeated by immunising from judicial review the decision of the Speaker to certify a Bill as a Money Bill. (paragraph 65)

What Chandrachud J. is doing here is what the legendary American constitutional scholar, Charles Black, called “structural interpretation“: constitutional interpretation that flows from the structures and relationships between various constitutional provisions. Here, Chandrachud J. uses the importance of bicameralism as providing the interpretive framework within which to examine the issue of the money bill; or, in other words, any interpretation of Article 110 must be one that advances and protects bicameralism, rather than diluting or eroding it.

This interpretive framework comes into play when Chandrachud J. examines the merits of the dispute. He notes that the inclusion of a non-fiscal provision matter in a money bill is permissible only if it is “incidental” to a matter specified in Article 110. Or, in other words, the legislation must essentially relate to one of the clauses under Article 110. The Finance Act – to the extent that it dealt with the restructuring and composition of Tribunals – clearly did not fall within this category. Therefore:

We are unimpressed with the submissions of the learned Attorney General that since salaries are payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c) and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include qualifications and process for appointment terms of office and terms and conditions of service including salaries, allowances, resignation and removal which cannot be reduced to only a question of the financial burden on the Consolidated Fund of India. The effect of Part XIV is to amend and supersede the provisions contained in the parent enactments governing all aspects of the appointment and terms of service of the adjudicatory personnel of the tribunals specified in the Eighth and Ninth Schedules. This exercise cannot be construed as a legitimate recourse to the power of enacting a Money Bill. (paragraph 77)

It is crucial to note that this analysis on merits flows from the structural analysis discussed above. In paragraph 86, Chandrachud J. goes on to observe:

… the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an exception which has been carved out by the Constitution to the constitutional requirements accompanying the passage of ordinary legislation. In passing the Bill as a Money Bill, the immediate impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of legislation.

On this basis, he finds that the Speaker’s certification was incorrect, and sets it aside; the rest of the Act, however, is saved on principle of severability.

It is important to note that this is not the first occasion in recent times that structural analysis has played a role in the Court’s judgments. It was also in play in the NCT of Delhi v Union of India decision. In that case, while interpreting Article 239AA of the Constitution – that defined the relationship between Delhi and the Union of India – the Supreme Court held that principles of federalism and representative democracy constituted the interpretive framework within which textual ambiguities were to be resolved. The principle is a simple one, but has powerful consequences: when used well, it ensures that the Constitution’s fundamental principles act as waymarkers upon the often perilous road of judicial interpretation; these principles help to anchor the Court within a principled adjudicatory framework.

In that sense, Chandrachud J.’s opinion has already done the work that the majority has left to a larger bench.

And incidentally, it also makes it clear that the Aadhaar Act is unconstitutional.

Guest Post: On Money Bills

(This is a guest post by Suhrith Parthasarathy, on the eve of the final day of hearing in the Tribunals Case).

Over the course of the last five years, several laws of substantial and wide-reaching importance have been enacted without securing the Rajya Sabha’s assent. These have included, among others, legislation such as the Aadhaar Act, the Specified Bank Notes (Cessation of Liabilities) Act, 2017, which provided imprimatur to the government’s demonetisation programme, and the Finance Act of 2017, through which a raft of statutes was amended, and various different judicial tribunals were either newly created or merged and integrated together. The government achieved this circumvention of the Rajya Sabha’s checks by having the Lok Sabha’s speaker certify the draft of these legislation as money bills.

As I pointed out previously here, generally under India’s constitutional structure, for a bill to be enacted as law, it requires approval by both Houses of Parliament. The exception to this rule is contained in Article 110(1), which defines a “money bill” in the following terms:

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub clause (a) to (f).

Article 110(3) further states that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final. But, in its judgment in the Aadhaar case, despite clause 3, the Supreme Court did, in fact, review whether the Speaker was correct in branding the Aadhaar Bill as a money bill, albeit concluding that the certification in the case was correct. Now, however, arguments are once again afoot on whether such decisions by the Speaker can at all be subject to judicial scrutiny.

Last week, in challenging the provisions of the Finance Act of 2017, insofar as they affected the functioning of tribunals, Mr. Arvind Datar, for the petitioners, contended that the Speaker’s certification, in this case, amounted to a fraud on the Constitution. The provisions of the law, through which tribunals were either merged together or newly created, he argued, related to matters entirely beyond the scope of the enlisted items in Article 110(1).

In response, the Union government, represented by the Attorney General, argued that the speaker’s decision in certifying the Finance Bill of 2017 as a money bill was final and binding. In the government’s belief, the majority’s judgment in the Aadhaar case does not represent an authority for the proposition that the speaker’s endorsement is amenable to judicial review.

Admittedly, as I pointed out in my previous post, the leading opinion in the Aadhaar case, authored by Justice AK Sikri, is riddled with inconsistencies on this question. Had the court approached its decision-making process logically, it would have first rendered a conclusive opinion on whether the Speaker’s decision was capable of being judicially examined, before proceeding to consider the question of whether her decision was, in fact, correct on a consideration of the Aadhaar Bill. But not only did the court fail to do this, it adopted an altogether bizarre approach by first reflecting on whether the Aadhaar Act infringed any fundamental right or not. In doing so, it concluded that section 57 of the Act alone was unconstitutional. As a result, when considering arguments on the bill’s certification under Article 110, the majority considered a version of the law that was deemed to exclude section 57. This is inexplicable because the Speaker, when attesting the draft legislation, one would have thought, would have considered its provisions as a collective whole.

But the contradictions do not end here. In analysing the Aadhaar Bill—an imagined version of the law sans section 57—and whether it could have been classified as a money bill under Article 110, the majority’s judgment is decidedly vague. Consider paragraphs 396 and 397, where the court recorded the petitioners’ submissions on the point:

396) It was further submitted that though clause (3) of Article 110 stipulates that decision of the Speaker on whether a Bill is a Money Bill or not is final, that did not mean that it was not subject to the judicial scrutiny and, therefore, in a given case, the Court was empowered to decide as to whether decision of the Speaker was constitutionally correct. In respect of Bill in question, it was argued that though Section 7 states that subsidies, benefits and services shall be provided from Consolidated Fund of India which was an attempt to give it a colour of Money Bill, some of the other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar Act) do not fall under any of the clauses of Article 110 of the Constitution. Therefore, some provisions which were other than those covered by Money Bill and, therefore, introduction of the Bill as Money Bill was clearly inappropriate. It was also argued that, in this scenario, entire Act was bound to fail as there is no provision for severing clauses in Indian Constitution, unlike Section 55 of the Australian Constitution. Insofar as justiciability of the Speaker’s decision is concerned, following judgments were referred to:

 (i) Sub-Committee on Judicial Accountability v. Union of India & Ors.

 (ii) S.R. Bommai & Ors. v. Union of India & Ors.

 (iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.

 (iv) Ramdas Athawale v. Union of India & Ors.

 (v) Kihoto Hollohan v. Zachillhu & Ors.

397) It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an indicator of, and is essential to, constitutional federalism. It is a part of basic structure of the Constitution as held in Kuldip Nayar & Ors. v. Union of India & Ors.147. Therefore, Rajya Sabha could not have been by-passed while passing the legislation in question and doing away with this process and also right of the President to return the Bill has rendered the statute unconstitutional.

Having documented this, the court proceeded to cite the Attorney General’s arguments, including the government’s reliance on the judgment of a 3-judge bench in Mohd. Saeed Siddiqui v. State of UP (2014), where the Supreme Court had held that the Speaker’s decision under Article 110 is altogether beyond judicial review. The court then cited the government’s reliance on Article 122, which states that “The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.”

Having done so, the court held thus, in paragraphs 404 and 405:

404) The Rajya Sabha, therefore, becomes an important institution signifying constitutional fedaralism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The only exception to the aforesaid Parliamentary norm is Article 110 of the Constitution of India. Having regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides.

405) We would also like to observe at this stage that insofar as submission of the respondents about the justiciability of the decision of the Speaker of the Lok Sabha is concerned, we are unable to subscribe to such a contention. Judicial review would be admissible under certain circumstances having regard to the law laid down by this Court in various judgments which have been cited by Mr. P. Chidambaram, learned senior counsel appearing for the petitioners, and taken note of in paragraph 396.

Although the court didn’t expressly hold Siddiqui to be wrongly decided, it would be reasonable for us to assume, especially from paragraph 405, that the majority in the Aadhaar case rejected the government’s argument that the Speaker’s decision under Article 110 is beyond judicial review. Indeed, the court having agreed with Mr. Chidambaram proceeded to then examine whether the Aadhaar Bill (sans section 57) could be classified properly as a money bill. On this, the court concluded that the Speaker’s certification was correct, and the law was, in fact, validly enacted.

But, curiously, in paragraph 412, Justice Sikri observed as follows:

For all the aforesaid reasons, we are of the opinion that Bill was rightly introduced as Money Bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the Bill being Money Bill is subject to judicial review or not, whether a provision which does not relate to Money Bill is severable or not. We reiterate that main provision is a part of Money Bill and other are only incidental and, therefore, covered by clause (g) of Article 110 of the Constitution.

Now, had the court thought the speaker’s certification final and incapable of being scrutinised, it’s unfathomable why it would even consider whether the Aadhaar Bill’s introduction as a money bill was correct in law or not. Yet, paragraph 412 has left open an avenue for the government to continue to insist that the Speaker’s endorsement under Article 110 is beyond judicial review. But as I have argued previously, Article 110, if abused, is capable of producing great public mischief. What is more, as Justice DY Chandrachud’s opinion in the Aadhaar case shows us (here Justice Bhushan too concurs), the decision in Siddiqui proceeded on a grossly mistaken belief that a certificate issued under Article 110 is merely a matter of procedure. The ongoing case over the validity of the Finance Act, 2017, insofar as it relates to tribunals, represents a great opportunity for the court to irrefutably settle the issue. It’s time the court explicitly overruled Siddiqui, for to hold otherwise is to undermine the fundamental democratic role that the Rajya Sabha performs.

The Aadhaar Judgment and the Constitution – III: On the Money Bill (Guest Post)

(In this, the concluding essay in our series analysing the legal foundations of the Aadhaar judgment, Suhrith Parthasarathy examines the issue of the money bill.)

The Supreme Court’s judgment in the Aadhaar case is troubling at many different levels. As Gautam Bhatia’s post highlights, the majority’s opinion, authored by Justice AK Sikri, on behalf of himself, Chief Justice Dipak Misra and Justice AM Khanwilkar, is riddled with doctrinal inconsistencies and fails to so much as a maintain a sense of internal logic. This makes criticism of the judgment an especially demanding task. Not only are the court’s chosen standards of review questionable, its application of those flawed choices is often equally unsatisfactory. These fallacies are, perhaps, best exemplified by the majority’s approach to the questions concerning the enactment of the Aadhaar Act as a money bill. The court’s decision in this regard is productive of consequences that are likely to have a deep bearing on India’s democracy.

The Background

When the Aadhaar scheme was originally introduced in 2009, the government thought it unnecessary to enact a suitable legislation. In what represented a blatantly illegal move, it thought an executive notification would suffice for the purpose. Eventually, when the draft of a statute was presented in December 2010, to purportedly validate the scheme, it was introduced in the Rajya Sabha as an ordinary bill. This meant that the bill, like most other laws in India, required the assent of both houses of Parliament to turn into law. As it happened, the draft bill was sent to a Parliamentary Standing Committee even before it could secure the Upper House’s clearance. After substantial concerns were raised by the committee, the government, now under a different dispensation, withdrew the bill from consideration in March 2016, and introduced, in its place, a new draft legislation, titled the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016. But this time the draft statute was introduced in the Lok Sabha with an added certificate from the speaker of the House classifying the proposed legislation as a money bill. This meant that all that the bill needed to turn into law was the Lok Sabha’s affirmation, which the bill secured within days of its introduction. And with that, the Aadhaar Act came to be enacted.

A number of the petitions challenging the Aadhaar programme in the Supreme Court explicitly questioned the introduction and enactment of the law as a money bill. The petitioners in these cases argued that the court possessed the power to judicially review the speaker’s decision, and, what’s more, his decision to certify the law as a money bill was patently unconstitutional.

Money Bills and the Constitutional Framework

Now, generally, under India’s Constitution, for a bill to be enacted into law it requires approval by both the Lok Sabha and the Rajya Sabha. The only exception to this rule is contained in Article 110(1), which defines a “money bill” in the following terms:

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub clause (a) to (f). (Emphasis Supplied)

Critically, Article 110(3) adds that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final. It was this provision that the government placed particular emphasis on in its defence. The Union of India argued that the speaker’s decision was altogether immune from judicial review. In any event, according to it, the categorisation made in this case was in conformity with clause 1 of Article 110.

The Majority Approach: Judicial Review 

In deciding the case, common logic ought to have dictated that the court considered the question of whether the Aadhaar Act was a validly enacted legislation first. After all, if the court were to find that it had the power to review the speaker’s decision and if it found that the decision made in this case was unconstitutional, the entire legislation would have been rendered null and void, effectively making every other argument advanced in the case moot. Yet, the court chose a different path. For reasons best known to the majority, it chose to frame the question concerning the validity of the Aadhaar Bill’s categorisation as the sixth issue for consideration. Bizarrely, issues that preceded this included questions over whether the Aadhaar Act created a surveillance state, whether the Act violated the right to privacy, and whether children could be brought within the sweep of the programme. Thus, the majority chose to decide what ought to have been a preliminary question only once it gave its imprimatur to the general architecture of the Aadhaar programme. This approach, it must be said, runs counter to the most fundamental principles of judicial decision-making.

Making matters worse, the court’s ultimate approach in deciding the issue was just as illogical. Quite opposed to addressing, at the outset, the government’s objection that the speaker’s certification was beyond judicial review, the court first chose to consider whether the bill, in fact, met the requirements of Article 110(1). Once it did this, and once it found that the bill fell within the categories prescribed in Article 110(1), the court altogether brushed aside the question of whether a speaker’s decision is judicially reviewable or not. Now, it’s difficult to understand whether we can presume from the fact that the court conducted an examination on the provisions of the bill to conclude that it was a money bill that the majority did believe the speaker’s decision to be reviewable. The majority offers no clear and precise answer for this.

But, given that the government’s argument wasn’t entirely meritless, in that it was backed by at least one decision of a 3-judge bench of the Supreme Court, in Mohd. Saeed Siddiqui v. State of UP (2014), in the present post we shall endeavour to consider the issue by first answering the question of whether a speaker’s decision under Article 110 is judicially reviewable or not.

In Siddiqui, the question before the court concerned a categorisation made under Article 199 of the Constitution, which defines a money bill for the purposes of state legislatures. The provision is in pari materia with Article 110, and, as such, any decision made interpreting Article 199 ought to apply directly to Article 110 too. There, the Supreme Court had ruled that a Speaker’s decision to classify a draft statute as a money bill was not judicially reviewable, even if the classification was incorrect, since the speaker’s mistake constituted nothing more than a mere procedural irregularity. The court arrived at its decision, as Justice DY Chandrachud’s dissenting opinion in the Aadhaar case correctly points out, on a misunderstanding of a constitution bench judgment in Mangalore Ganesh Beedi Works vs. State of Mysore (1963).

In Mangalore Ganesh Beedi Works, the court had found that the Indian Coinage (Amendment) Act, which introduced a new system of coinage, was not a taxing measure. The petitioners had argued that through the substitution of 2 naya paisas in place of 3 pies as tax, there was a change in the tax imposed by the Mysore Sales Tax Act, which could only have been done by passing a Money Bill under Articles 198, 199 and 207 of the Constitution. Since no money bill had been introduced, the Act itself, the petitioners argued was illegal and invalid. It was in those circumstances, having found that a substitution of coinage did not result in an enhancement of tax, that the court ruled that Article 199 was simply not attracted. The further observation made by the court that the “the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202” ought to therefore be viewed in light of the ratio decidendi of the judgment.

Yet, in Siddiqui the court proceeded on the grossly mistaken premise that the decision in Mangalore Ganesh Beedi Works was somehow an authority for the proposition that a speaker’s decision to categorise a draft law as a money bill was beyond judicial review. Once again, as Justice Chandrachud’s dissenting opinion in the Aadhaar case points out, there is a consistent thread that emerges from the court’s judgments in (a) In re Special Reference No. of 1964, (b) Ramdas Athawale v. Union of India, and (c) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, which makes it clear that the validity of proceedings in Parliament or a State Legislature can be subject to the rigours of judicial review on the ground that there is a constitutional violation. Considering the trend of these judgments, and considering the grave consequences that emanate out of a certification of a draft law as a money bill the majority in the Aadhaar case ought to have at the least tested the continuing applicability of the court’s verdict in Siddiqui. For, as Justice Chandrachud writes:

Barring judicial review of the Lok Sabha Speaker’s decision would render a certification of a Bill as a Money Bill immune from scrutiny, even where the Bill does not, objectively speaking, deal only with the provisions set out in Article 110(1).[Paragraph 83]

What’s more, as Justice Chandrachud adds:

The existence of and the role of the Rajya Sabha, as an institution of federal bicameralism in the Indian Parliament, constitutes a part of the basic structure of the Constitution. The decision of the Speaker of the Lok Sabha to certify a Bill as a Money Bill has a direct impact on the role of the Rajya Sabha, since the latter has a limited role in the passing of a Money Bill. A decision of the Speaker of the Lok Sabha to declare an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha. The power of the Speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the Constitution. Judicial review of the Speaker’s decision, on whether a Bill is a Money Bill, is therefore necessary to protect the basic structure of the Constitution. [Paragraph 339(d)]

Interestingly, Justice Bhushan in his separate opinion agrees with Justice Chandrachud that Siddiqui requires explicit overruling. It is unfortunate that despite the length of its opinion the majority has singularly failed to engage with this central point of contention.

The Aadhaar Act as a Money Bill 

What the majority does do, though, (and here Justice Bhushan agrees with it) is to hold, erroneously, that the speaker’s certification of the Aadhaar Bill as a money bill was in conformity with Article 110(1).

The government had argued that since Section 7 of the Aadhaar Act, “which was the heart and soul” of the legislation concerned subsidies, benefits and services, for which the expenditure was to be incurred from the Consolidated Fund of India, the requirements of Article 110(1) were met. It was sufficient, according to the government, if a law, in pith and substance, met the tests laid down in Article 110(1). In other words, so long as a draft legislation broadly concerned itself with one of the elements contained in clauses (a) to (f) of Article 110(1), the speaker was well within his rights to categorise the law as a money bill.

To start with, it needs to be noted that the doctrine of “pith and substance” is applied to adjudicate legislative competence, and has no role to play in examining whether or not the requirements of Article 110 are satisfied. But in any event, without expressing any specific opinion on the argument predicated on the doctrine of pith and substance, the majority in the Aadhaar case agrees with the government to the extent that Section 7 conforms to Article 110(1)(e) (“expenditure charged to the consolidated fund”), that all other provisions of the Act are only incidental to Section 7, and, therefore, fall within the meaning of Article 110(1)(g) (“incidental matters”). As Justice Chandrachud points out in his dissenting judgment this is an extraordinarily fallacious ruling. The majority altogether overlooks the fact that for a bill to be certified as a money bill under Article 110 it must contain “only provisions” that deal with every or any one of the matters contained in Article 110(1). Therefore, a bill, which contains a single item beyond the scope of the subjects enlisted in clauses (a) to (g) of Article 110(1) cannot be introduced as a money bill. Here, as Justice Chandrachud’s meticulous reading of each and every provision of the Aadhaar Act shows us there are a host of clauses that deal with items well beyond the scope of clauses (a) to (g) of Article 110(1). He holds:

The substantive provisions of the Act are, however, not confined to the object specified in the Preamble. Indeed, they travel far beyond the boundaries of a money bill under Article 110(1). The enrolment on the basis of demographic and biometric information, generation of Aadhaar number, obtaining consent of individuals before collecting their individual information, creation of a statutory authority to implement and supervise the process, protection of information collected during the process, disclosure of information in certain circumstances, creation of offences and penalties for disclosure or loss of information, and the use of the Aadhaar number for any purpose lie outside the ambit of Article 110. These themes are also not incidental to any of the matters covered by sub-clauses (a) to (f) of Article 110(1). The provisions of Section 57 which allow the use of an Aadhaar number by bodies corporate or private parties for any purpose do not fall within the ambit of Article 110. The legal framework of the Aadhaar Act creates substantive obligations and liabilities which have the capability of impacting on the fundamental rights of residents. [Paragraph 107].

The majority’s finding, such as it were, can be found in paragraphs 408 to 411 of its judgment, where it holds, inter alia, that since Aadhaar-based authentication is mandated by Section 7 of the Act for the receipt of a subsidy, benefit or service, and since such subsidies, benefits and services accrue out of the Consolidated Fund of India, Section 7 has to be seen as the “core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution.” Having held thus, in paragraph 411, the majority says:

To facilitate this, UIDAI is established as Authority under the Act which performs various functions including that of a regulator needing funds for staff salary and it’s own expenses. Respondents have rights remarked that the Authority is the performer in chief, the predominant dramatis personae. It appoints Registrars, enrollers, REs and ASAs; it lays down device and software specifications, and develops softwares too; it enrols; it de-duplicates; it establishes CIDR and manages it; it authenticates; it inspects; it prosecutes; it imposes disincentives; etc. And all this it does based on funds obtained by appropriations from Consolidated Fund of India (Section 24).

It’s difficult to understand the majority’s precise point here. But if its intent is to suggest that virtually any governmental activity would fulfil the condition laid down in Article 110(e), given that most government functions would be funded out of the Consolidated Fund of India it can only be a ruling that is predicated on a flagrant misunderstanding of the Constitution. The entire idea behind Article 110(e) is that the law must contain “only provisions” that involve “the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure.” In other words, under clause (e), a money bill must deal with the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India.

As Justice Chandrachud, once again, correctly holds, not even Section 7 of the Aadhaar Act fulfils this requirement. As he writes in paragraph 110 of the dissent:

What Section 7 does is to enact a provision allowing for Aadhaar to be made mandatory, in the case of services, benefits or subsidies which are charged to the Consolidated Fund. Section 7 does not declare them to be a charge on the Consolidated Fund. It provides that in the case of services, benefits or subsidies which are already charged to the Consolidated Fund, Aadhaar can be made mandatory to avail of them. Section 7, in other words, is a provision for imposing a requirement of authentication and not declaring any expenditure to be a charge on the Consolidated Fund of India. Hence, even Section 7 is not within the ambit of Article 110(1)(e).

The majority’s troubling holding on the money bill issue doesn’t end here. It also holds that by virtue of it striking down Section 57 of the Act, it was unnecessary for it to consider whether the provision was merely incidental to the other provisions, specifically to Section 7. This finding is yet another instance of the judgment’s incoherence. The Aadhaar Act was enacted as a package. Section 57 was very much a part of the bill which was presented for the Lok Sabha’s consideration. So, if Section 57 wasn’t merely incidental to Section 7 (and it would have involved a huge stretch even of the majority’s logic to hold that it was), the draft legislation simply could not have been categorised as a money bill.

In other words, the majority effectively inverts basic judicial reasoning. Instead of considering the Aadhaar Act as a whole, and testing whether it qualifies as a money bill, the majority first examines provisions of the Act for substantive compliance with the Constitution, strikes down Section 57 as unconstitutional, and then turns around and says, “hey, now that Section 57 is gone, the remainder of the Act is a money bill after all.” As explained above, this is simply absurd.



Ultimately, the court’s ruling here creates a dangerous precedent. Now, virtually any legislation can be pushed through as a money bill, by ensuring that the law contains an “element” of one or the other of the clauses contained in Article 110. If the judgment is allowed to stand on this point its impact could be far-reaching. It will give government a carte blanche to enact all manners of laws by-passing the Rajya Sabha altogether.

The majority’s judgment in the Aadhaar case, therefore, requires immediate overruling. It will be interesting to see when the government next amends the Aadhaar Act (as it’s surely likely to do) if it will introduce the draft amendment as a money bill. Any such effort must serve as an opportunity for the court to reverse the majority’s findings here, and to restore, in Justice Chandrachud’s words, “the delicate balance of bicameralism” which lies at the heart of India’s parliamentary democracy.

Money Bills, Speaker’s Discretion, and Judicial Review

(In this guest post, Jeydev c.s. examines the controversial – and ongoing – issue of whether the Speaker’s decision to classify a bill as a money bill is subject to judicial review.)

Money bills seem to be all the rage these days. What is generally relegated to the annals of arcane legislative procedure is now at the forefront of a public debate that has raised accusations of executive arrogance, been defended as efficient law-making, and for our purposes, is begging questions of constitutional propriety. In this post, I look at the specific legal question of whether the role and conduct of the Speaker in classifying bills as ‘money bills’ is open to judicial review; this very issue is presently before the Supreme Court of India in Jairam Ramesh v. Union of India, as it hears a petition by a former cabinet minister who has challenged the passing of the Aadhaar Act, 2016 as a money bill, among other things. The question is important, because under the Constitution, the Rajya Sabha cannot exercise its customary legislative veto upon money bills. Consequently, the Speaker’s decision to classify a bill as a money bill or not has important ramifications.

It is true that in two recent cases, Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Yogendra Kumar Jaiswal v. State of Bihar, the Supreme Court has held that the Speaker’s decision is not subject to judicial review. However, this post seeks to locate these judgments within the broader jurisprudence of the Supreme Court, with which they appear at odds with. The present petition offers the Court a rare opportunity to unambiguously articulate its position with sufficient reasoning, while acknowledging consequential implications, whichever way it rules.

Article 110 of the Constitution defines a money bill, and sets out six specific subjects which a money bill might cover (imposition of taxation, regulation of government borrowing etc.), so as to merit such classification, as well as any matter that is “incidental” to those six subjects. This is an exclusive list. Clause (3) provides that whenever any question arises to the propriety of classification under article 110, the decision of the Speaker of the Lok Sabha shall be final. However, the question remains: does the finality of the Speaker’s decision necessarily oust the jurisdiction of the courts? Article 122 explicitly bars courts from inquiring into the proceedings of Parliament. As the text of clause (1) suggests, this bar applies to any question on the ground of “irregularity of procedure”. The Supreme Court has, on several occasions, opined on the contours of this restriction.

In M.S.M Sharma v. Dr. Shree Krishna Sinha, it was affirmed that legislative business cannot be invalidated even if they are not in strict compliance with the law. As Chief Justice Sinha observed, these issues fall within the realm of what is a ‘special jurisdiction’ of the legislature – to regulate its own business; and the general rule is one of non-intervention. Historically at common law, this was also a privilege extended to Parliament and its officers, such as the Speaker. The powers of expulsion, censure, contempt et cetera are freely exercised by the UK Parliament without the threat of judicial review. However, the guiding principle of Indian law is constitutional supremacy, not parliamentary supremacy. For this reason, Indian jurisprudence has not been as kind to power unchecked by other branches of government. It has been repeatedly clarified in cases such as State of Rajasthan v. Union of India that the Constitution is ‘supreme lex’, which limits the authority of each branch, including that of the legislature. Judicial review offers an invaluable tool in checking Parliamentary belligerence, and this role is integral to the Indian constitutional scheme, as clarified by the Court in Sub-Committee on Judicial Accountability v. Union of India. From these cases, what is clear is this – the affairs of a legislature are generally the domain of that legislature alone, while the judiciary could play a significant role in review if the former strays from its constitutional circumscriptions.

For more guidance on what that potential role could be, we may look to Keshav Singh’s case. It held that while legislative bodies are not subject to judicial control as far as their internal procedures are concerned, there are certain caveats to such a proposition. It was held that a court of law may question legislative procedure if the impugned action rests not on mere irregularity, but from an ‘illegality’ or ‘unconstitutionality’ of procedure. In Ramdas Athavale v. Union of India, the Supreme Court extended that standard to article 122, as it pertains to procedural actions of Parliament. More tellingly, in Raja Ram Pal v. Speaker, Lok Sabha, the Court had applied this standard to article 105 (3), which sought to import those privileges, powers, and immunities enjoyed by the House of Commons into the Indian scheme (as an interim measure, until the Indian Parliament itself legislates on those matters). This case dealt with the expulsion of certain members of Parliament, by the Speaker. A plain reading of this clause and Parliamentary practices in the House of Commons might suggest a finality to procedural decision of the Speaker in confirming the expulsion, in terms that are analogous to article 110. The Court however noted that the Indian Constitution did not provide for expulsion as a means to effect a vacancy in the house, and the procedure was therefore illegal and unconstitutional, rather than merely irregular. The Speaker’s decision was held to be open to judicial scrutiny, and the expelled members were reinstated by the Court.

Given this precedential matrix, the question now turns to whether the decision of the Speaker to classify a bill as a money bill under article 110 amounts to a procedural matter; and even if it does, whether patently erroneous classification would amount only to mere irregularity of procedure. In Siddiqui, the Court considered a controversy with regard to identical provisions of the Constitution pertaining to state legislative assemblies. Here, the Court validated the finality of the decision of the Speaker, with only a passing reference to the rule clarified in the wealth of cases before it, and dismissed them without any substantial scrutiny. It did not offer any reasoning for this conclusion – in fact, it refrained from attempting to make the crucial link between irregularity of procedure and judicial review. The Court merely reiterated the text of article 110 (3), despite the broader avenue of intervention that has existed as far back as Keshav Singh.

More recently in Jaiswal, the Supreme Court reaffirmed the holding in Siddiqui that any decision of the Speaker in this regard, however flawed, could only amount to a “mere irregularity”, and thus outside the ambit of judicial review. Despite seemingly settling the question once and for all, closer scrutiny shows that the only source relied upon to this end is the conclusion in Siddiqui itself. It does not offer any independent assessment of the issue or unique reasoning – to say, ‘because Siddiqui said so’, holds value only if Siddiqui had done so on solid legal grounding in the first place. To that end, the Court missed an opportunity to detail the reasoning that informed its conclusions, particularly in light of the remarkable consequences of its decision. As anecdotal evidence from oral proceedings in the Ramesh case seems to suggest, the Court does not appear to be inclined to let blatant mischaracterisation go unchecked; Khehar CJ is reported to have observed, “If the Speaker says blue is green, we will tell her that blue is blue and not green”.

The Rajya Sabha is the indirectly-elected, upper-house of the bicameral Parliament of India. As such, it was envisaged to be an active participant in the legislative process – among other things, it would be consultative, advisory, and contributory towards law-making, without being subject to the vagaries of electoral politics. These features are supposed to, in theory, improve the quality of laws that are enacted by acting as a check on the untrammelled legislative intentions of the directly-elected, lower house of Parliament. With respect to ordinary legislation (i.e. non-money bills), the Rajya Sabha finds itself on equal footing with the Lok Sabha, as the former’s views cannot be ignored by the latter since the passing of such a bill by both houses of Parliament is the sine qua non of becoming law. On the other hand, once classified as a money bill, the Rajya Sabha’s legislative role is severely inhibited by reducing it to an advisory position – advice that is not binding on the Lok Sabha.

If the Court is to yet again affirm the conclusions of Siddiqui and Jaiswal in the forthcoming Ramesh case, unthinking reliance on those two cases would be another opportunity wasted as it does not truly answer the question of whether an erroneous certification of money-bills, as such, merely amounts to procedural irregularity. The Court must offer clear reasons as to why patently improper decisions by the Speaker does not amount to any of the other substantive flaws laid down in Keshav Singh and Pal. The obligation on the Court is to show why our constitutional scheme envisages the vesting of so grave a power with the Speaker that may be abused or incorrectly applied, yet not meriting judicial review. The very distinction between money bills and ordinary bills, as envisaged by the incorporation of article 110 in the Constitution, harks to the expectations of a participative and involved upper house. What does it mean for our democratic institutions if this process is obviously abused to exclude the participation of the upper house?

The Court may very well hold that the text of article 110 (3) is unencumbered by other constitutional standards and that the Speaker’s conduct is beyond review. But doing so entails a significant overhaul of our expectations and the Court must have the conviction to account for the implications of such a finding. It should acknowledge that such a reiteration of Siddiqui and Jaiswal emasculates the Rajya Sabha’s legislative function, implies that the ordinary-money bill distinction is specious despite the text of the Constitution, and that the Lok Sabha is paramount in the legislative process – the Court must justify why such radical empowerment of one house alone in a bicameral Parliament is appropriate.

In the absence of such an explicit and forceful finding, the guiding principle should remain those broader grounds for review envisaged in Keshav Singh, Pal et cetera, rather than the assertions of Siddiqui and Jaiswal. The Supreme Court may very well follow Siddiqui and Jaiswal, but it should also take care to detail the contours of such a deviation from the collective wisdom of its earlier jurisprudence on judicial review of legislative procedure – and contend that the Rajya Sabha is thus relegated to legislative redundancy. Bereft of such reasoning, the article 122 standard and the consequential extension of judicial review to the Speaker’s decision under article 110 appears more constitutionally sound.