Judicial review of the Speaker's certificate on the Aadhar Bill

by Pratik Datta, Shefali Malhotra and Shivangi Tyagi.

Under the Indian Constitution, for a bill to be enacted into a law, it has to be approved by both Houses of the Parliament - the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). There is one exception to this general rule. A bill certified as a 'money bill' by the speaker of the Lower House can be enacted into a law by the Lower House alone, without any approval from the Upper House. The Aadhar Act, 2016 was enacted using this route. After being passed by the Lok Sabha, the Lok Sabha speaker certified the Aadhar Bill as a 'money bill'. Accordingly, amendments suggested by Rajya Sabha were not considered and the bill was enacted into law. This led to a controversy, ultimately leading up to a constitutional challenge by Mr. Jairam Ramesh before the Supreme Court. Mr. Ramesh alleged that the speaker incorrectly certified Aadhar Bill as a 'money bill', allowing Lok Sabha to enact the law completely bypassing Rajya Sabha. This matter is going to come up for hearing before the Court on March 14.

Article 110(3) of the Indian Constitution states that the decision of the speaker, whether a bill is a money bill or not, "shall be final". In Mr. Ramesh's case, the Supreme Court has to first decide if it can question the speaker's "final" decision to certify Aadhar Bill as a 'money bill'. The Supreme Court has in three earlier decisions refrained from questioning the speaker's decision. These judgments are Mangalore Ganesh Beedi Works v. State of Mysore (1962), Mohd. Saeed Siddiqui v. State of UP (2014) and Yogendra Kumar Jaiswal v. State of Bihar (2015). As per these judgments, the speaker can certify each and every bill to be a `money bill' capable of being enacted by Lok Sabha alone, rendering the Rajya Sabha and the bicameral legislative system redundant. And the Supreme Court cannot question the speaker's decision since it is "final".

In a recent paper titled Judicial review and money bills, we argue that this position of law developed by the Supreme Court is incorrect. Many commentators have already argued that the enactment of the Aadhar Act through the money bill route was unconstitutional. For instance, Alok Prasanna Kumar, Amber Sinha and Suhrith Parthasarthy have pointed out that the Supreme Court's decisions denying judicial review are problematic. Vanya Rakesh and Sumandro Chattapadhyay have also made out a case favouring judicial review of the speaker's certificate. Our paper adds to this line of literature by substantiating these arguments in detail. In this post, we highlight five reasons why the Supreme Court could legitimately question the speaker's decision in spite of its "final" status under the Constitution.

Indian Constitution does not explicitly bar judicial review

The Indian Constitution adopted the concept of money bills from the British Parliament Act, 1911, with crucial modifications. The 1911 Act defines `money bill' and lays down a procedure for them. Section 1(2) defines a bill to be a money bill which 'in the opinion of the Speaker of the House of Commons' contains only specific provisions. Article 110(1) of the Indian Constitution defines a bill to be a money bill 'if it contains only' specific provisions. Effectively, in Britain the determination of whether a bill is a money bill is left to the subjective 'opinion' of the British speaker. In contrast, the definition of `money bill' under the Indian constitution is not left to the subjective opinion of the Indian speaker. The Indian speaker's decision has to be based on the definition provided in the Constitution.

The 1911 Act mandates the British speaker to endorse his
opinion on money bills, on a certificate. Section 3 gives absolute legal conclusivity to the certificate 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) of the Indian Constitution also grants 'finality' to the Indian speaker's decision. 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.

Unlike the 1911 Act, the Indian Constitution does not mention that the speaker's decision "shall be conclusive for all purposes" and "shall not be questioned in any court of law". Therefore, although the Indian Constitution grants conclusivity to the speaker's decision, it does not explicitly bar judicial review. We find that the Constituent Assembly intended for the "final" status given to the speaker's certificate, to be applicable only inside the Parliament - including the Rajya Sabha and the President. Our paper explains this argument in detail.

"Final" decisions have been questioned by Supreme Court

Decisions of various authorities have been given "final" status under the Indian Constitution. Yet the Supreme Court has on multiple occasions exercised judicial review over such decisions. For instance, in Kihoto Hollohan vs Zachillhu (AIR 1993 SC 412), the "final" decision of the speaker regarding disqualification of members of the House under Tenth Schedule of the Indian Constitution, has been held to be a judicial decision subject to judicial review. This suggests that the "final" status given by the Indian constitution does not automatically immune the Indian speaker's decision or certificate from judicial review. Our paper provides a detailed table where we show that there are 17 types of "final" decisions in the Constitution, out of which there are only 3 instances where the Constitution specifically mentions that the validity of such "final" decision cannot be questioned. The decision of the speaker, whether a bill is a money bill or not, is not one of them. Moreover, the Supreme Court has held 5 types of "final" decisions to be subject to judicial review.

British and Indian Parliamentary systems are different

Much of the differences between the 1911 Act and the Indian
Constitution originate from the inherent differences between the British and Indian parliamentary systems.

Britain follows a system of parliamentary sovereignty where the legislature is supreme. In their model it is possible to give absolute conclusivity to the speaker's certificate and immunise it from judicial review. We feel this was not possible under the Indian Constitution since it is not based on parliamentary sovereignty. Giving absolute conclusivity to the speaker's certificate or decision would have been incompatible with the overall scheme of the Indian Constitution, for two reasons.

First, India has a written constitution. All organs of the state (including the speaker) must abide by the Constitution. Any violation is liable to be struck down by the courts. This separation of powers is a basic feature of the Indian Constitution. Allowing the speaker to violate the constitution without any recourse to judicial review impinges upon this basic feature of the Indian Constitution.

Second, Britain does not have a written constitution. Therefore, it is impossible for the British speaker to violate the constitution. The British Speaker can only violate the rules made by either Houses of the British Parliament or procedural laws enacted by both of them. These being 'internal matters' of the Houses, such violations are immune from judicial review. In contrast, India has a written constitution. Certain law making procedures are prescribed by the Indian Constitution (like the money bill procedure), while some other procedures are prescribed through rules by both the Houses of the Indian Parliament (like voting on bills and resolutions). Similar to Britain, the rules made by the Indian Parliament are treated as 'internal matters' of the Houses, immune from judicial interference. We feel violation of constitutional procedures are not 'internal matters', and hence cannot be immune from judicial review. This explains why the Indian constitution framers did not explicitly bar judicial review of the speaker's decision as is the case in Britain.

Supreme Court's contradictory jurisprudence

Our research highlights the inherent contradiction within the Supreme Court's own jurisprudence on judicial review of legislative proceedings and the Indian speaker's certificate on money bills. Article 122 of the Indian Constitution prohibits the courts from questioning parliamentary proceedings on the ground of 'procedural irregularity'. We argue that 'procedural irregularity' refers to violation of procedures in rules made by each House under Article 118 or in any law made by the Houses under Article 119. Violation of a constitutional procedure is not mere 'procedural irregularity'. This distinction was highlighted by a seven judge bench of the Supreme Court in Special Reference No. 1 of 1964. It held that if the procedure followed by the legislature is illegal and unconstitutional, courts can exercise judicial review. This interpretation of Article 122 has been blatantly disregarded by lesser benches of the Supreme Court in the three decisions mentioned earlier. These three cases erroneously held that violation of the constitutional procedure for money bills is a mere 'procedural irregularity' and hence cannot be questioned by the courts.

Other common law jurisdictions allow judicial review

The position followed by the Indian Supreme Court is at odds with the position adopted across five common law countries with written constitutions and bicameral legislative systems. Our research shows that courts across these jurisdictions broadly support judicial review in this regard. In Australia, if a law imposing taxation deals with any extraneous matter, the Australian High Court can exercise judicial review under section 55 of the Commonwealth of Australia Constitution Act, 1900. The Canadian Supreme Court has observed that the procedural requirement must be complied with to create fiscal legislation. The Constitutional Court of South Africa has exercised judicial review to determine if a Bill was calculated to raise revenue or not. The US Supreme Court has categorically held that a law passed in violation of the Origination Clause (equivalent to money bills under the Indian Constitution) would not be immune from judicial review. Pakistan Supreme Court has in four cases struck down laws enacted as money bills since they did not fall within the definition of money bill under article 73 of their constitution.

Conclusion

Our research suggests that Indian legislative proceedings are immune from judicial review only on the ground of 'irregularity of procedure' and not for constitutional breaches. If a House commits breach of any procedure in any rule made by itself or in any legislation that the Houses themselves had passed, such breach is an internal matter for the House itself to act on. It is not open to judicial review. But if a House commits a breach of any constitutional procedure, such breach is open to judicial review. A contrary interpretation would mean that the Indian speaker can certify each and every bill to be a 'money bill', practically dispensing with the need for the Rajya Sabha. Such an interpretation would effectively render the constitutional design of a bicameral legislative system completely redundant. This is precisely what has been done by the three earlier judgements of the Supreme Court. Jairam Ramesh v. Union of India offers the Supreme Court an opportunity to revisit its interpretation of the Constitution on this issue.

References

Pratik Datta et al., The controversy about Aadhaar as a money bill, Ajay Shah's blog, March 20, 2016.

Vanya Rakesh and Sumandro Chattapadhyay, Aadhaar Act as Money Bill: Why the Lok Sabha isn't Immune from Judicial Review, The Wire, May 9, 2016.

Alok Prasanna Kumar, Why the Centre's dubious use of money bills must not go unchallenged, Scroll.in, May 11, 2016.

Amber Sinha, Can the Judiciary Upturn the Lok Sabha Speaker's Decision on Aadhaar?, The Wire, February 21, 2017.

Suhrith Parthasarthy, What exactly is a money bill?, The Hindu, February 27, 2017.

Pratik Datta et al., Judicial review and money bills, February 28, 2017.

 

The authors are researchers at the National Institute of Public Finance and Policy, New Delhi.