Money Bills and Judicial Review: Lessons from a Constitutional Crisis in 1911 [Guest Post]

[This is a guest post by Rahul Narayan.]

A little over a century ago, Britain was headed for a Constitutional crisis due to severe differences between the Conservative party dominated, more-or less hereditary House of Lords and the elected Liberal Party dominated House of Commons. Matters came to a head in 1909 when the Lords rejected the Finance Act passed by the Commons leading to a resignation of the government, and political turmoil and elections. By 1911 a newly minted Liberal party majority in the Commons wished to remove the power of the Lords to reject Money Bills and derail other reform legislation. Thus began discussions on what became the Parliament Act 1911.

In many ways this was a continuation of a historical process. The right to originate bills of “aid and supply” had traditionally rested with the Commons since the Magna Charta. In 1671 and 1678 the Commons had passed resolutions denying the Lords the right to amend finance bills. This was accepted by the Lords, who only insisted that no unrelated matter be “tacked” on to the bills of supply to avoid scrutiny of the Lords on such unrelated questions because such tacking would be “unparliamentary” and would tend to “the destruction of Constitutional Government”. This sentiment was accepted by Commons in 1702. Bills of aid and supply were passed as consolidated Finance Acts after the 1860s to discourage the Lords from rejecting individual components of finance bills as it was believed the Lords would hesitate in striking the entire Finance Act. The skirmishes between the Lords and Commons from 1906 to 1909 which culminated in the rejection of the Finance Act 1909 only precipitated the end of the last remaining power of the Lords re money bills- the right to reject them.

In 1910, the Lords, stuck between the Scylla of money bill reform and the Charybdis of wholescale restructuring of the Lords to remove their hereditary privileges bowed to the inevitable and agreed not to press their Constitutional privilege to reject money bills asking in return only that the ancient malpractice of “tacking” be dealt with appropriately.

The quickly agreed contours of the discussion as regards money bills were: (a) The Commons had the sole privilege to pass or reject money bills; (b) No extraneous matter would be tacked on to a money bill to avoid scrutiny of the Lords.

In England, each House is the judge of its own privileges. Thus the Commons majority rejected the suggestions made by the Conservative opposition and by the Lords that either the courts or a Joint Committee decide when a bill was a money bill. The decision was that of the Speaker alone. Eventually it was decided that the Speaker would certify the bill as a money bill if practicable after consultation with 2 members of the House of Commons, one from each side of the House.

Extensive and learned debate was carried out in the Commons between PM Asquith, Samuel and Churchill (then a liberal) on the Government side and Balfour, Anson and others for the Conservative opposition on whether the actual definition of a Money Bill conformed to the contours everyone agreed upon. Speaker after speaker expressed the fear that the broad based definition of money bills could result in extraneous matters being tagged by the Speaker as a money bill to remove scrutiny of the House of Lords on important questions. The government tried to dispel these fears in two ways. Firstly, they argued that section 1 of the Bill only formalised the existing legal position on Money Bills alone. Secondly, they said that the word “only” in draft signified that nothing extraneous could be tacked on to a money bill. On 11th April 1911 PM Asquith stated that a law appointing 2 new high court judges would not be a money bill despite the fact that it would involve expenditure from the consolidated fund because “No human being could say that was a Bill which contained only provisions dealing with charges on the Consolidated Fund. It was for the appointment of two judges, and incidentally their salaries were a charge on the Consolidated Fund. That is a good illustration of the way in which these words will have to be construed.”  

Following serious debate, the Parliament Act, 1911 was passed in August 1911 and the incipient Constitutional crisis was averted. The Parliament Act 1911 was amended in 1949. Its use by the Labour Government to pass the Hunting Act 2004 over the protest of the Lords led to a huge brouhaha and a landmark case in the House of Lords, though not on the aspect of money bills. In the House of Commons with its strong tradition of an impartial Speaker (recently demonstrated during the Brexit debates by Speaker Bercow), there has never been a partisan food fight on the certification of a Money Bill and no accusation of “tacking”.

Money Bills were adopted into the Constitution of Ireland, 1937 with a little modification- as per Article 22 thereof, the certificate of the Speaker could be disputed by the upper house and the President could set up a committee headed by a High Court judge to determine the issue.

In our Constituent Assembly, the Framers used the Constitution of Eire as a basis for the money bill clause but removed the idea of a joint committee instead giving finality to the decision of the Speaker. An amendment to remove the word “only” was negatived on 8th June 1949 when the draft Article was approved.

What lessons can our Courts draw from the resolution of the crisis of 1911 when they examine the provisions relating to Money Bills under our Constitution in Article 110? On the issue of judicial review of the certification by the Speaker, the Courts must be conscious of the difference between the English position and ours while on the interpretation of the word “only” in Article 110(1), they must be conscious of the similarity.

Under our Constitution, judicial review of the certification of a Money Bill by the Courts ought to be permissible because:

  1. In Indian law, judicial review has to be specifically excluded and mere finality is not enough. Judicial review is specifically excluded in the Parliament Act, 1911, unlike in Article 110.  
  2. In India, the privileges of each house are subject to the provisions of Constitution as interpreted by the Courts, unlike in England.
  3. There is no absolute or unfettered power under the Indian Constitution.
  4. Certification by the Speaker is not “procedural” but is a substantive determination and a mistake is not irregularity of procedure but an illegality, and there is no bar on judicial review of an illegality.

Like in Britain, under our Constitution, the definition of a Money Bill is to be strictly construed because:

  1. The word “only” indicates that bills have to deal only with the provided heads and extraneous matter cannot be tacked on.
  2. Money Bills are the exception to the rule of bicameral legislative action and ought not to be allowed to subsume the main rule. The Rajya Sabha is emphatically not a hereditary chamber like the Lords in 1911 and the Rajya Sabha has a vital role to play. 
  3. Traditionally our Constitutional courts have not looked upon kindly at disguising the form of legislation to hide the substance- what is sometimes referred to as a “fraud on the Constitution”. 

The Aadhaar Act, inter-alia deals with eligibility for subsidies which are expenditures from the Consolidated Fund but neither creates subsidies nor directs such expenditures. Even otherwise no one would say this is a law only for this purpose. The majority judgment in the Aadhaar case, upheld the passing of the law as a money bill on the basis that the dominant purpose was subsidies, a characterisation disputed persuasively in fact and in law by Justice Chandrachud’s dissent. In Rojer Mathews case, when the Court was dealing with the amendment to the composition and rules governing Tribunal made vide the Finance Act, 2017, doubted the Aadhar judgment as regards money bills referred the issue to a larger bench both on the interpretation of the word “only” and on judicial review.

Based on his speech on April 11, 1911, PM Asquith would not think the Aadhaar Act is a Money Bill and would think that the merging of tribunals was tacked on to the Finance Act 2017 in a way that the Lords could describe as unparliamentary and what John Hatsell writing in 1785 would call “dangerous” and “unconstitutional”. As and when the Supreme Court considers the Aadhaar Review Petitions and the reference in Rojer Mathews, they should hold the same.    

The Supreme Court’s Madhya Pradesh Government Formation Judgment: Round-Up

Below is a round-up of the six posts discussing the judgment of the Supreme Court in the Madhya Pradesh government formation case.

  1. A Question of Jurisdiction (by Rishav Ambastha)
  2. On the Powers of the Governor (by Anmol Jain)
  3. On the Powers of the Governor: A Response – I (by Amlan Mishra)
  4. On the Powers of the Governor: A Response – II (by Nivedhitha K)
  5. On the Powers of the Governor: A Rejoinder (by Anmol Jain)
  6. Some Concluding Remarks

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

[Editor’s 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 a former 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 (e.g., the introduction of structural mechanisms to ensure accountability)].

Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – III: A Response to Anmol Jain [Guest Post]

[Editor’s 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 a former 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.]

[This is the third post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Amlan Mishra.]

The judgement of the Supreme Court on the Madhya Pradesh political crisis, which occurred in March, has been discussed on this blog. This piece by Anmol Jain seeks to critique the judgement for bringing the question of ‘whether confidence is lost or not’ under the purview of the Governor’s discretion. He argues that Art. 174 and 175 r/w Art. 163 (sending messages/directions and summoning the Legislature using the Governor’s discretion) provide for exercise of discretion only in those situations explicitly provided by the Constitution. Anmol stresses that while directing a government to face a no-confidence motion, initiated inside the house, is within the scope of the Governor’s ‘discretionary directions’, independently directing a trust vote when no such motion exists is beyond his discretion. In this post, I seek to argue that Anmol’s strict reading is not well founded. For there could be scenarios (like in this case) where the government may adopt delay tactics in order to deter any political process (like a no-confidence motion) aimed at holding it accountable from taking place. Lastly, I would also assess how the court navigated the political thicket in this case.

On Discretion

It is well-recognised that the Governor’s role is to form a government which enjoys support in the legislature. It has been held in Rameshwar Prasad v. Union of India, that the mere individual opinion of the Governor cannot be a ground for imposing President’s rule (under A. 356), but an attempt should first be made to test the government on the floor of the house. This means that the Governor has the duty to determine support on the floor of the house, before recommending invocation of A. 356. Here, the court also held that in a ‘parliamentary democracy of a state’, there should be at all times, either a democratic ‘popular’ government or the state should be under President’s rule. It stressed that no legislative assembly can be ‘live’ in the absence of an executive government. Thus the Governor should have means to resolve a situation when the ‘majority’ of a government is in question so that he can either invoke Art 356 or explore other means of forming a democratic government. This is a discretionary power inherent in A. 356 and in the collective responsibility of the Council of Ministers (A. 75). This discretionary power has been recognised more explicitly in Nabam Rebia v. Deputy Speaker. That is, of course, not to say that the power to make such a determination should be exercised at his whims or fancy.

This begs the question: should a Governor ‘interfere’ to resolve the question of majority or should he let political processes inside the legislative assembly resolve itself? Notice, if the process inside the legislature is likely to present an answer (eg. a no-confidence motion has been accepted by the Speaker and is to be scheduled soon), he need not interfere in the legislature. But where the political processes, for whatever reason, are unlikely to present an answer, he may issue directions ordering a floor test. He must do so, because political processes may not present an answer (i.e., establishing a majority), making it impossible for him to secure the continuance of a ‘popular government’. The above test of: ‘Are the political processes likely to present an answer?’ should then serve well in determining the boundaries of Governor’s exercise of discretion in cases where majority is suspect.

In this light, let us appreciate this extract from Nabam Rebia, which Anmol cites to buttress the central role of a ‘no-confidence motion’ before the Governor can ‘interfere’ by exercising his discretion:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

Anmol highlights ‘the non-confidence motion’ to draw attention to the fact that Governor’s discretion kicks in only when a non-confidence motion is pending in the house. This I argue is a simplistic reading of this paragraph. Of course, the situation envisioned in the paragraph is one scenario where the Governor may refuse to dissolve/prorogue the house. But a purposive reading also means that he may use his discretion in directing a floor test, if the government uses delay tactics to not let the no-confidence motion be introduced. In other words, if political processes inside are proving inadequate or are being circumvented, he may use discretion in directing a floor test. Notice this follows logically from the paragraph. Putting a strict reading on it misses the purpose of the paragraph, which is to stop delay tactics by the government (like prorogation, adjournment etc) to avoid a test of its confidence. What if instead of prorogation (explicitly mentioned in this extract), the government resorts to adjournment to avoid testing its confidence, such that processes inside the legislature cannot present an answer? I argue that this being the situation in this case, the Governor’s discretionary directions were rightly upheld by the court.

Adjournment as a Delay Tactic: The Case of MP

Here, I show that in the MP Scenario, the government used adjournment to avoid the test, thereby creating a situation where political process could not throw up any answer to the question of majority. This legitimised THE Governor’s interference to settle the question. Notice this paragraph, in J. Chandrachud’s judgement, where he traces how adjournment made determination of ‘majority’ difficult:

The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.


This means that had the government not adjourned the house, and kept open the prospect of a no-confidence motion on the floor, the exercise of Governor’s discretion in this case would have been unwarranted. Since that did not happen, and instead, delay tactics were used, the Governor’s ‘interference’ in the legislature to check the political accountability of the government was justified.

Now, one can still argue that the Governor had sent directions on March 14th even before the house could hold its first session (on 16th March), and before any political process inside the legislature could begin. Thus, the argument may conclude that the Governor’s directions were untimely, as no delay tactics had been employed till them. However, the Governor kept reiterating his directions even after the adjournment of the house (made on 16th March till 26th March). This lent legitimacy to his directions, once the government started adopting delay tactics.

Avoiding the Political Thicket

Now, I wish to analyse how the court navigated the political thicket in this case. Courts traditionally have been wary of taking decisions which sway the balance in favour of a particular political party, and rightly so. Likewise in this case, the Congress Party and the Speaker argued that ordering an immediate floor test would ‘short-circuit’ the power of the Speaker in deciding the question of resignations of MLAs. This is important because unless the Speaker makes a decision about resignation before the floor test, all decisions about the disqualification/ resignation of MLAs may become irrelevant. Once the Government falls (as it did), the Speaker has very little time (before he is replaced) to decide on disqualification and resignation of MLAs. This chain of events may allow rebel MLAs to vote against their party whip, and still survive their disqualification, once the government changes (and there is a favourable Speaker).

It must be recognised (as has been argued in the blog here and here) that a remedy should have been fashioned which allowed the Speaker adequate time to decide these questions properly without ‘short-circuiting’ his decision. However, the court in this case failed to fashion such a remedy and merely noted that there is no explicit bar on the Speaker’s decision, and the floor test and these decision could run parallalely. Such a balance as Bhatia notes elsewhere is ‘not any balance at all’.

However, the court did try to equalise the setting by ordering a floor test the next day. The court noted that this would decrease the prospect of rebel MLAs sealing deals with the new government and thereby lessen the chances of them violating the Tenth Schedule (on defections). Readily ordered floor-tests are increasingly becoming a great, though unequal tool, to lessen subversion of democratic commitments and stop horse-trading. This also lessens unhelpful accusations of mala-fide in the functioning of the Governor (in sending directions to the Assembly) or the Speaker (in adjourning the assembly). Inherent in ordering an immediate floor test is the idea that despite bad faith by constitutional functionaries, the floor of the house if the place for determination of these questions and not the court-room.

Another attempt by the court was to allow interactions between the Speaker and the rebel MLAs through video-conferencing at a ‘neutral setting’ so that Speaker could take a decision on the resignations. This suggestion was declined by Sr. Adv. Singhvi because he did not have ‘instructions’ from his clients. However, this presents innovative ways of resolving political crisis, while allowing political processes to continue inside the legislature.

Overall, in my view, the Court did a decent job of delineating the discretionary powers of the Governor and tows a sensible line in navigating the political thicket.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – I: A Question of Jurisdiction [Guest Post]

[Editor’s 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 a former 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.]

[This is the first in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Rishav Ambastha.]

In this post, I analyse the question of jurisdiction that arose in Shivraj Singh Chauhan v. Speaker Madhya Pradesh Legislative Assembly (Shivraj Singh Chauhan case). This follows a series of cases involving the formation of governments with uncertain majorities in the legislative assembly, and consequent constitutional challenges to the direction of either the Speaker or the Governor (“majority formation disputes”). Invariably, the S. Ct. has leaned in favour of directing test of majority on the floor of the house.

Question of Jurisdiction & Article 32

Any claim under Article 32 must preliminarily address two questions of jurisdiction – subject matter jurisdiction (whether the dispute relates to enforcement of rights under Part III of the Constitution); and personal jurisdiction – whether such a right is conferred on the person/entity asserting it (petitioner) and whether such person/entity has the duty to enforce such a right (respondent). Typically, a right under Part III of the Constitution is conferred in favour of citizens/ persons / entities (depending on the nature of the right) against the State.

Pertinently, a “majority formation dispute” involves no question of fundamental rights, as there is no fundamental right to form a government or occupy a political office. Arguably, these are constitutional rights conferred by Part V and Part VI of the Constitution. Therefore, the S. Ct. lacks jurisdiction under Article 32 of the Constitution to entertain such a claim.

Short-Circuiting High Courts

In one of its first interventions in “majority formation disputes” in the 1990s, the S. Ct. in Jagdambika Pal v. Union of India (Jagdambika Pal case), directed holding a special session of the UP Legislative Assembly for a composite test of majority. This intervention arose out of a Special Leave Petition against an interim order of the Allahabad High Court exercising its writ jurisdiction.

Following the Jagdambika Pal case as precedent, S. Ct. has made at least five more interventions in cases of similar fashion. In Anil Kumar Jha v. Union of India, the S. Ct., following Jagdambika Pal, in a terse two-page order, lacking discussion and reasoning on jurisdiction, directed a test of majority on the floor of the house. This trend is evident in “majority formation dispute” cases following it – G Parameshwara v. Union of India, Chandrakumar Kavlekar v. Union of India, and Shiv Sena v. Union of India (Shiv Sena case) and Shivraj Singh Chauhan case (though here, the S. Ct. delivered a judgement). However, in a significant departure from the Jagdambika Pal case, the S. Ct. passed orders in these cases in its Original Writ Jurisdiction (a claim under Article 32), incorrectly short circuiting the jurisdiction of the High Court.

High Courts are the only constitutional courts with jurisdiction in the first instance to entertain claims of “majority formation disputes”. Under Article 226 of the Constitution, High Courts have jurisdiction to enforce rights against the state, not only limited to fundamental rights under Part III, but also other constitutional rights and rights arising under different legislative and executive instruments.

Resolution through Interim Orders

In these cases, the directions for floor tests have arisen out of interim orders and have been disposed of without a judgement (excepting the Shivraj Singh Chauhan case). As a trend, the interim orders include only bare assertions of directions to the relevant authorities for tests of majority on the floor of the house.

An order is the expression of any decision of the court, and the judgement states the ground of the decision. Interim orders are tentative arrangements before the final disposal of the matter. Therefore, without a judgement, there is a lack of clarity on the question of jurisdiction of S. Ct. in “majority formation disputes” under Article 32.

For example, Ramana J in the Shiv Sena case passed interims orders directing a majority test on the floor of the house while still keeping alive “…issues of maintainability, extent of judicial review and the validity of the satisfaction of the governor…” for adjudication “…at an appropriate time”. However, the important question of whether the Court is empowered to issue interim orders in a dispute where it does not exercise jurisdiction was left unanswered – particularly so when the interim orders effectively disposed of the matter, touching upon the disputes agitated. The direction of floor test ought to have come after conclusive determination on the question of jurisdiction.

Court’s Analysis of Jurisdictional problems

As noted above, Ramana J in Shiv Sena case for the first time identified the question of jurisdiction. This came to fore because one of the petitioners had argued that “the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.”.

Chandrachud J. in the Shivraj Singh Chauhan case comes close to elucidating on the question of jurisdiction. In this case, it was argued that that “the writ petition under Article 32 is founded on the need to maintain (i) constitutional morality (ii) constitutional ethos; and (iii) constitutional principles”. Chandrachud J. did not directly address the argument on jurisdiction. However, he rejected the argument that “this Court should be wary of entering the realm of politics‘ where no judicially manageable standards‘ can be maintained, and the outcome prescribed by the court is likely to tilt the political balance.” And in tacit acceptance of the argument of the petitioner, J. Chandrachud in para 31 stated that: “Since the adoption of the Constitution, this Court has on several occasions adjudicated upon whether the actions of the legislative and executive branches adhere to the democratic processes created by the Constitution. As the ultimate arbiter of the constitutional text, this Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics.”

The analysis of the S. Ct. seems to be this: if the case involves questions of interpretation of the Constitution, especially disputes of democratic processes in relation to the legislature and the executive, the S. Ct. ought to assume jurisdiction. Arguably, the court attempts to trace its jurisdiction to its role as the ultimate arbiter of constitutional text. However, this assumption of jurisdiction violates the constitutional fetter on its power under Article 32 (limited to enforcement of rights under Part III of the Constitution), and expands it to include disputes involving all constitutional rights, effectively closing the jurisdictional gap between Article 226 and Article 32.


The S. Ct. in its role as “the ultimate arbiter of the constitutional text” nonetheless ends up bypassing the constitutional text – Article 32 – pivotal to its own jurisdiction. These interventions demonstrate the position S. Ct. envisages for itself in the constitutional scheme – which is a judicial body with co-equal writ jurisdiction of the High Court, a position not conferred in it by the Constitution. This over-broad assumption of jurisdiction is, arguably, part of a larger trend that divests the jurisdictional High Courts of many of their constitutional functions, vesting them instead in the Supreme Court as the Court of both first – and last – instance.

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.

Postscript: The Supreme Court’s Problematic Order in the Karnataka Case

Yesterday, I wrote that the ongoing Karnataka controversy represents a breakdown of constitutional conventions. This breakdown creates a space for inevitable judicial intervention – but a space that is fraught with risk for the Court. In fashioning a remedy, the Court ought to make it as difficult as possible for the warring political functionaries to subvert constitutional conventions, while leaving the final solution to the existing democratic processes.

Today morning, the Court passed an order in the case. Noting that it had to maintain a “constitutional balance between the competing and conflicting rights”, it refrained from issuing any directions to the Speaker to decide upon the resignation and disqualification petitions. However, the Court also held that “until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same.”

In an article on Livelaw, Manu Sebastian has written that this second part of the order effectively conflicts with the Tenth Schedule, as it effectively authorises the rebel MLAs to disregard the party whip. That point aside, does the order meet the two-part test set out above – of allowing the democratic process to decide the issue, while making its subversion more difficult? On the first count, it certainly does, a point made particularly evident by the Court’s own observation that there is a trust vote scheduled for tomorrow.

On the second point, however, I would argue that the Order comes up notably short. The Court’s attempted “balance” is to give both parties freedom to act: the Speaker has the freedom to decide on the petitions, while the rebel MLAs have the freedom not to attend the proceedings of the House. However, on closer scrutiny, this balance is not a balance at all, as the second part of the order – on the issue of attending the proceedings of the House – effectively and presumptively holds the resignations to be valid until and unless the Speaker decides otherwise. This is because it is only if the resignations were valid would the party whip – and thereby the Tenth Schedule – cease to apply. In all other circumstances, the rebel MLAs defiance of the whip would be subject to disqualification under the Tenth Schedule.

The matter grows murkier when we consider the fact that the Court expressly notes in its order that its “balance” is occasioned by the fact that there is a trust vote tomorrow. This being the case, the Court’s apparent granting of freedom to the Speaker becomes effectively chimerical: because the whole point is that the ruling combine is likely to lose its majority in the circumstances that the rebel MLAs are able to defy the party whip without being disqualified – which is precisely what the Court’s order allows. In effect, therefore, the Order – while purporting to grant the Speaker unlimited time – effectively grants the Speaker time until the trust vote to decide, after which any decision the Speaker makes will, for all practical purposes, be infructuous.

As I had mentioned in my last post, the two subversions of constitutional conventions at stake here are the Speaker abusing his powers on the one hand, and large-scale horse-trading on the other. The Supreme Court’s order, unfortunately, is framed in a way that makes the former far more difficult (in a similar manner to how the Supreme Court fettered the governor’s ability to abuse his powers the last time around), but at the same time, actively allows for the facilitation of the latter, by judicially noting that the rebel MLAs “ought not” to be subjected to the party whip.

This, it should be obvious, is no balance at all.

Judicial Supremacy amid the Breakdown of Constitutional Conventions: What the Karnataka Controversy Tells Us about our Parliamentary Democracy

It has long been observed that the smooth functioning of parliamentary democracy depends upon constitutional conventions. Put simply, a constitutional convention refers to a set of uncodified norms that are sanctified by a long tradition of unbroken practice. Political functionaries tend to adhere to these norms either out of a sense of public duty, or out of fear of paying a political cost by breaking them.

A written Constitution can reduce the extent to which governance relies upon conventions. It cannot, however, eliminate them. The range of human behaviour can never completely be captured in a text. In a written Constitution with judicial review, an extra wrinkle is added to the situation: it creates situations where courts may be asked to rule upon the scope and the content of these conventions, and – in exceptional circumstances – even asked to guarantee their enforcement. This will require the Court to enter the “political thicket” (see this recent article by Mukund Unny), along with all its attendant dangers.

All this is difficult enough. In India today, however, there is an even further layer of complexity. Constitutional conventions and judicial review depend upon one basic premise: that constitutional functionaries tasked with implementing constitutional conventions act in good faith. For example, parliamentary democracy vests substantial power in the office of the Speaker of the House. The Speaker of the House conventionally comes from the ruling party, but once they occupy the Chair, they are expected to shed their partisan affiliation, and impartially administer the rules of the House (including its conventions). The presumption of the Speaker’s impartiality is the underlying basis for another very important constitutional convention: that Courts shall not be called upon to adjudicate disputes relating to what goes on in Parliament. The Parliament has its own adjudicating authority – the Speaker – and the doctrine of the separation of powers requires Courts to defer absolutely to how the Speaker manages the affairs of the House.

However, once it becomes clear – as it arguably has become in India – that Speakers repeatedly and blatantly act according to partisan motives (the conduct of the last Lok Sabha speaker in certifying money bills and refusing to hold votes of confidence is a case in point), a judicialisation of the Speaker’s conduct becomes inevitable. If opposition parties have good reason to believe that the game in the House is rigged, they have little choice but to go to Court. And the Court is then faced with an impossible situation: constitutional conventions require it to stay out of Parliament, but at the same time, staying out would result in another set of conventions being violated with impunity. There is no clean – or good – answer in such a situation.

What is happening in Karnataka represents a classic example of the breakdown of constitutional conventions, and its knock-on effect upon the judiciary. Recall that the ruling Congress-JDS combine in Karnataka has a thin majority. Recently, a number of MLAs of the ruling combine offered their resignations to the Speaker. The result of this would be to deprive the ruling combine of its majority, and offer the chance to the opposition BJP to stake a claim to form the government. The MLAs have argued that they are resigning of their own free will, while the Congress-JDS argues that they have been bribed and threatened by the BJP to do so.

At this point, Article 190 of the Constitution comes into play. Article 190 provides that MLA resignations are to be offered to the Speaker. It also allows the Speaker the discretion to reject the resignations if, in her view, they are not “voluntary or genuine.” Article 190, therefore, presumes that legislators act in good faith when resigning, and makes the Speaker the judge of that. What Article 190 does not do – indeed, what it cannot do – is to guarantee that the Speaker herself will act in good faith (that presumption is a constitutional convention).

Before the Supreme Court, the legislators have argued that the Speaker is deliberately delaying deciding on the resignation letters, and therefore violating his duty to act in good faith. They have asked the Court to direct the Speaker to decide upon the resignations in a “time bound manner” (notice that the idea of a judicial authority “directing” the Speaker of the House to do anything would be unheard of in most parliamentary democracies in the general course of things, and indeed, that is what the Speaker himself effectively said after the Supreme Court passed an interim order). The legislators have also argued that if the Speaker is acting out of partisan motives: basically, he is waiting until the ruling combine issues a three-line whip to its party members, at which point, the anti-defection Tenth Schedule will kick in. The moment the rebel legislators vote against the whip, their resignations will become infructuous, because disqualification will kick in.

As mentioned above, this puts the Court – which will hand down its order in the case tomorrow – in an impossible situation. The existence of partisan Speakers is an indisputable fact (indeed, there is already a pending petition before a Constitution Bench on the issue of Speakers deliberately sitting on disqualification decisions in order to allow ruling parties to maintain their majority). But the existence of horse-trading and defections in order to secure ministerial berths or for other similar reasons, is equally indisputable. But while both these facts are indisputable, for obvious reasons, and to avoid a complete breakdown of governance, neither of these can be acknowledged in the open, and in Court. The Court, thus, has to pretend that constitutional functionaries act in good faith, while – in specific cases – carve out remedies that are meant to operate in a world in which they do not.

What is the Court to do in a case like this? One – tempting – solution that it must avoid is full-scale intervention. That will swiftly drag the Court into the political weeds, and will make accusations of partisanship inevitable. Already, the Court has been placed in a situation where whatever it does will have the direct effect of favouring one set of political parties over the other. That is a very dangerous position for a constitutional court to find itself in.

The contours of a solution, however, might be visible from the Court’s own precedent: in particular, what it did in Karnataka last year, when the controversy was about government formation. In that case, the tables were somewhat reversed: the issue concerned the actions of the Governor in allowing the BJP to form the government despite the Congress-JDS’ claims to having a majority, and then allowing the Chief Minister fourteen days to prove his majority (it was alleged that this inordinately long time was given to enable the BJP to use its superior financial power to buy out opposition MLAs). The Court refused a full-scale intervention (i.e., setting aside the Governor’s decision), but it did reduce the time given to the Chief Minister to 48 hours, by ordering a videographed floor test. The BJP was unable to prove its majority, and ultimately, the Congress-JDS combine came to power.

The Supreme Court thus accomplished two things: first, it simply made it more difficult for the parties involved to act in bad faith, by reducing the time period to 48 hours; and secondly, its solution was not judicial (setting aside or upholding the governor’s action as valid), but parliamentary – a floor test. The blueprint, therefore, seems to be this: the task of the Court in cases like these is to fashion a remedy where the solution to the crisis is found through the existing democratic processes, but where it becomes far more difficult for constitutional functionaries to subvert the process and break conventions by acting in bad faith. In the present controversy, that might be accomplished by the following solution: the Court asks the Speaker to decide upon the resignations within a reasonable time (but enough time for the Speaker to make an enquiry as envisaged by Article 190), but makes it clear that the Speaker’s decision will be subject to judicial review under the Bommai standard (relevance/existence of material and an absence of mala fides). If it is later found that the Speaker acted wrongly, his decision on the resignations will be set aside, and – as happened in the Arunachal Pradesh case – status quo ante as of today will be restored, with the resignations now being treated as valid. In the meantime, the other democratic processes (the trust vote, the operation of the anti-defection law etc.) can go on as per their own logic.

This solution, it is submitted, would respect the constitutional authority given to the Office of the Speaker, while also subjecting him to judicial oversight in case he decides to act in bad faith. At the same time, it would allow the Speaker to form an assessment of whether the rebel legislators are acting in good faith or not, with the knowledge that his decision can – and will – be challenged. And the Court is saved from wading into murky political disputes (for now) in a way that will open it up to accusations of partisan bias.

This is, of course, an imperfect solution; and there may be other potential solutions that may strike the balance better (should the Court insist that the decision on resignations precede the trust vote/three line whip? Would that involve a direction to delay the state budget? Etc.). But I want to make one final point: the very fact that we are here today discussing the range of alternatives open to the Court demonstrates a disturbing development. The repeated bad faith actions and breaches of constitutional conventions by political functionaries have created a gaping, open space that is being filled by judicial supremacy. This has been going on for a while now: Speakers’ partisan decisions on certifying money bills has made court challenges inevitable; Governors’ partisanship and horse-trading has made judicial interventions into government formation inevitable; and so on. The beginning of all this, of course, was the repeated and unprincipled imposition of President’s Rule, which first dragged the Court into such questions.

But dragging the Court into this domain presents a deep threat to judicial independence: a Court whose decisions will regularly have such huge political ramifications presents a ripe and tempting target for capture, to unscrupulous political parties. It is for this reason that, in every case of this sort, the Court must be profoundly careful about what it is doing, and what the consequences of that are – because, ironic as it may sound, judicial supremacy in the political process is the shortest road to a compromised judiciary.

(Postscript: An additional point – and an additional way in which the Supreme Court, in particular, can avoid being tainted by a partisan brush – is the importance of sticking to procedural rules in cases like this. It is unclear how an Article 32 petition is maintainable in the present case – and even more unclear why the Supreme Court did not ask the parties to approach the Karnataka High Court as the jurisdictional forum (recall that a similar case from Tamil Nadu, involving the AIADMK was argued before the Madras High Court). This becomes particularly pertinent because the present Court has indeed sent constitutional cases back to the High Courts recently (the challenge to the Aadhaar ordinance being a good example). Ensuring that such cases come to it through proper channels will help the Supreme Court – as an institution – to avoid one particular Article 32-shaped pitfall. Of course, that issue is now infructuous, in the present case. I am grateful to Suhrith Parthasarathy for having pointed this out to me.)

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.