Re­view­ing the pas­sage of the Aad­haar Bill

The Pak Banker - - FRONT PAGE - She­fali Mal­ho­tra

The Chief Jus­tice of In­dia (CJI), in a re­cent hear­ing, asked if courts could re­view the Speaker's de­ci­sion to des­ig­nate a Bill as a money Bill. This was in re­la­tion to the Aad­haar Act, 2016, con­tro­ver­sially be­ing passed as a money Bill. We ar­gue that yes, the courts can in­deed re­view the de­ci­sion of the Speaker.

Un­der the Con­sti­tu­tion, a Bill is en­acted into law only when ap­proved by both the Lok Sabha and Ra­jya Sabha. The only ex­cep­tion is a money Bill, which needs ap­proval from the Lok Sabha alone. This pro­ce­dure is em­bed­ded in the Con­sti­tu­tion. The Aad­haar Bill, upon ap­proval by the Lok Sabha, was cer­ti­fied as a money Bill by the Speaker. Ac­cord­ingly, amend­ments sug­gested by the Ra­jya Sabha were not con­sid­ered and the Bill was en­acted into law. This led to a con­sti­tu­tional chal­lenge by Jairam Ramesh, who al­leged that the Speaker in­cor­rectly cer­ti­fied the Aad­haar Bill as a money Bill, al­low­ing the Lok Sabha to com­pletely by­pass the Ra­jya Sabha.

In an ar­ti­cle, "Ju­di­cial Re­view And Money Bills", in the Na­tional Univer­sity Of Juridi­cal Sci­ences Law Re­view (Pratik Datta, Shivangi Tyagi and She­fali Mal­ho­tra, Vol­ume 10, Is­sue 2, 2017), we an­swer the CJI's ques­tion in de­tail. One clear in­di­ca­tion that the Speaker's de­ci­sion (to cer­tify a Bill as a money Bill) is not pre­cluded from ju­di­cial re­view lies in the de­lib­er­a­tions of the con­stituent assem­bly.

The Con­sti­tu­tion adopted the con­cept of money Bills from the Bri­tish Par­lia­ment Act, 1911. The dif­fer­ence be­tween the pro­vi­sions of the 1911 Act and the Con­sti­tu­tion re­flects the in­ten­tion of the con­stituent assem­bly. Sec­tion 3 of the 1911 Act ac­cords ab­so­lute le­gal con­clu­siv­ity to the de­ci­sion of the Speaker. It reads: "Any cer­tifi­cate of the Speaker of the House of Com­mons given un­der this Act shall be con­clu­sive for all pur­poses, and shall not be ques­tioned in any court of law."

Ar­ti­cle 110(3) is the cor­re­spond­ing pro­vi­sion in the Con­sti­tu­tion. It ac­cords fi­nal­ity to the de­ci­sion of the Speaker. It reads: "If any ques­tion arises whether a bill is a Money Bill or not, the de­ci­sion of the Speaker of the House of Peo­ple thereon shall be fi­nal." The con­stituent assem­bly avoided the words "con­clu­sive for all pur­poses" and "shall not be ques­tioned in any court of law", steer­ing clear of an ex­plicit bar on ju­di­cial re­view of the Speaker's de­ci­sion. This can be at­trib­uted to three cru­cial dif­fer­ences in the con­sti­tu­tional scheme of both coun­tries. First, the UK fol­lows par­lia­men­tary sovereignty, where the leg­is­la­ture is supreme, while In­dia treats its Con­sti­tu­tion as supreme. Se­cond, the Con­sti­tu­tion is based on the doc­trine of sep­a­ra­tion of pow­ers, while the UK does not have for­mal sep­a­ra­tion of pow­ers be­tween the three branches of gov­ern­ment. Third, the In­dian Par­lia­ment has to fol­low pro­ce­dures laid down by it­self and those writ­ten into its Con­sti­tu­tion. The UK does not have a writ­ten con­sti­tu­tion, hence it is im­pos­si­ble to vi­o­late it.

Bar­ring ju­di­cial re­view of the Lok Sabha Speaker's de­ci­sion would im­ply that the Speaker, an of­fi­cer of the leg­is­la­ture, can by­pass con­sti­tu­tional pro­ce­dures with im­punity and that the ju­di­cial re­view power of courts is re­lin­quished to this of­fi­cer. This would have been at odds with the over­all scheme of the In­dian Con­sti­tu­tion. The in­ten­tion to up­hold ju­di­cial re­view as the supreme ar­biter of due process in Par­lia­ment is fur­ther re­flected in the de­bate on Ar­ti­cle 122. Ar­ti­cle 122 states that "the va­lid­ity of any pro­ceed­ings in Par­lia­ment shall not be called in ques­tion on the ground of any al­leged ir­reg­u­lar­ity of pro­ce­dure".

H.V. Ka­math sug­gested an amend­ment that would en­sure the pro­ceed­ings could not be "called in ques­tion in any court". Rejecting this sug­ges­tion, B.R. Ambed­kar replied: "I do not think it is nec­es­sary, be­cause where can the pro­ceed­ings of Par­lia­ment be ques­tioned in a le­gal man­ner ex­cept in a court? ...the only fo­rum where the pro­ceed­ings can be ques­tioned in a le­gal man­ner and le­gal re­lief ob­tained ei­ther against the Pres­i­dent or the Speaker or any of­fi­cer or Mem­ber, be­ing the Court, it is un­nec­es­sary to spec­ify the fo­rum." This is a cat­e­gor­i­cal clar­i­fi­ca­tion that the con­stituent assem­bly did en­vis­age ju­di­cial re­view over the le­gal­ity of Par­lia­men­tary pro­ceed­ings, ex­cept in the case of any al­leged ir­reg­u­lar­ity of pro­ce­dure, i.e. rules of pro­ce­dure laid down by Par­lia­ment it­self. The im­mu­nity does not ex­tend to vi­o­la­tion of any pro­ce­dure laid down un­der the Con­sti­tu­tion (in­clud­ing the de­ci­sion of the Speaker to cer­tify a Bill as a money Bill).

The en­dorse­ment of the Speaker's cer­tifi­cate on money Bills is based on the rec­om­men­da­tion of the ex­pert com­mit­tee on fi­nan­cial pro­vi­sions. The in­ten­tion was to avoid con­tro­ver­sies "about mat­ters out­side the lower house". It can be con­cluded that the Speaker's cer­tifi­cate on money Bills was to avoid any con­tro­versy on the is­sue be­fore other arms of Par­lia­ment, the up­per house and the pres­i­dent. It was never to al­low the Speaker free reign over cru­cial par­lia­men­tary busi­ness, in sub­ver­sion of the Con­sti­tu­tion. Con­stituent assem­bly de­bates do not pro­vide an­swers to many con­sti­tu­tional ques­tions. The framers could not have en­vi­sioned a world where bio­met­ric iden­tity would be ubiq­ui­tous. How­ever, some­times the de­bates throw light on what the in­ten­tion was. In this par­tic­u­lar case, the de­bates an­swer the CJI's ques­tion di­rectly.

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