-Mr Rohan Mishra
Introduction
The present Constitutional structure suggests that in order to enact a bill into law, there exists a drawn-out procedure that needs to be approved and scrutinized vividly by both the ‘upper’ and ‘lower’ houses of the parliament (hereinafter, ‘Rajya Sabha’ and ‘Lok Sabha’). Needless to mention that this general rule brings forth an exception that whenever a bill is certified as a money bill by the speaker of the Lok Sabha, it does not need any further approval by the Rajya Sabha. This provision acts as a pressing lacuna in the law-making process as it has also been fervently contended by the rival political parties on a copious number of instances that every governing entity severely misuses the power mentioned in the provision.
Recently, the matter bumped up, procuring the public attention when the apex court was passing direction in a number of matters which were pending before the 7-judge bench including the case of Rojer Mathew v. South Indian Bank Ltd and Ors, which also raises the compelling issue pertaining to the money bill. The Supreme Court and the Union govt. also had a tussle as the counsel on behalf of the union govt. was of the contention that matter is decided based on political exigencies and not listing the same in a chronological order.
Furthermore, the issue of money bill was also reflected in the petition challenging the electoral bond scheme of the government. Although the petitioner decided to argue the matter without this issue as the same was slated to be taken up by a 7-judge bench.
The present paper is confined exclusively to address the pressing questions i.e., Whether the finality of the speaker’s decisions on certifying a bill as a money bill amounts to Judicial Review apropos what is the contemporary direction put forth by the apex court in the Rojer Mathew case pertaining to the Judicial Review and certification of the money bill by the speaker. The paper also tends to stretch its ambit to discuss what all are the significant issues that need to be resolved by amending the proviso and how it affects the law-making mechanism in toto.
Contemporary Development on the Issue
The question of the finality of the speaker’s decision is yet again knocking on the doors of the supreme court on a number of instances demanding finality on the enduring issue. Firstly, while dealing with a batch of the review petition filed in order to challenge the 2018 Aadhar verdict (in which the Aadhar 402\87 Act, 2016 was introduced as a money bill in the 16th Lok Sabha) on which a five-judge constitution bench upheld the validity of the Aadhar act as a money bill. One of the substantial questions raised in the review petitions apropos money bill is whether the decision of the speaker of the house of people to certify a bill as a money bill is final and binding or can be subject to review?
By the number of 4:1, the bench dismissed the review petition of Aadhar ruling and held that there arises no ground to review the well-settled judgment. But Hon’ble J., D.Y. Chandrachud again dissented with the opinion of the majority and further held that the said question is pending to be determined by a larger bench reference as held in the case of Rojer Mathew v. South India Bank Ltd. The question of interpreting article 110(1) was left unanswered by the majority in the Aadhar ruling and the correctness of the same was doubted by the constitutional bench in Rojer Mathew.
The Rojer Mathew case relates to the tribunals and the finance act and was dealt with by the five judge’s bench of the supreme court on the substantial questions: (a) Constitutional validity of the Financial Act, 2017 (b) Erroneously passing the finance act as money bill under 109 of the constitution and, (c) Sections 182, 183, 184, 185 of the finance acts need to be struck down or not?
The majority judgment in sum on the issue of money bill exclaimed that “A co-ordinate bench of K.S. Puttaswamy was tasked with the same question but the majority opinion did not examine the correctness of the decision in Md. Saeed Siddiqui and Yogendra Kumar Jaiswal or conclusively pronounce on the scope of jurisdiction or power of this Court to judicially review certification by the Speaker under Article 110(3).” Hence the issue and the question of the money bill’s finality certification accorded by the speaker of Lok Sabha was referred to the larger bench. (7-Judges Bench)
The judge opposed the dismissal of the review petitions solely on the ground that the constitution of the larger bench directive as conveyed in Rojer Mathew’s case and any decision on the money bill issue on any other case would be considered as a constitutional error, also the co-ordinate constitutional bench (Rojer Mathew) doubted on the expressing sight on this issue and considered to resolve it once and for all through a larger bench. It was also said that “A larger bench determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy on the constitutional issues pertaining to and arising out of the certification by the Lok Sabha speaker”
Secondly, The glaring abuse of the constitutional power of the speaker can be witnessed by analysing the number of times amendments introduced in the Prevention of Money Laundering Act, 2002 as a money bill through finance acts (2015, 2016, 2018, 2019) that prevents money laundering and provides for confiscation of property derived from or involved in money laundering.
All these acts which are introduced as a money bill in order to overpass the scrutiny of the Rajya Sabha sets a dangerous precedent and must be considered as an attack on the constitutional set up of the legislative process.
Whip hand tussle vis-a-vis judicial review and speaker’s decision
The present provision of the money bill and the finality of the speaker’s decision while certifying any bill as a money bill has its pedigree from the British parliament act, 1911 and article 22 of The Constitution of Ireland, 1937, it ultimately reserved its place in the final draft of the constitution, albeit with some significant modifications. Section 1(3) of the 1911 Act states, “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”. The condition that no court of law can question the speaker’s discretion as embedded in the section came from the principle of the ‘enrolled bill’ doctrine (which was more prevalent in the English monarchical system of government, the general practice at that time was when king assented any act passed by the parliament with the regal seal, no one could question the regal seal) as held in the case of The King v. Arundel.
The drafting committee members debated on this issue and thought to consider the text ‘shall not be questioned in any court of law’ but later on took a varied approach and only included that the speaker’s decision ‘shall be final’. It has been argued by many Indian constitutional venerable historians of reverence that it is pertinent to observe the interpretation of the framers that if they intended to ostracize the applicability of judicial review, they could have used the same phrases. It was asserted that the reason for not including the phrase was primarily the difference in structure of the sovereignty followed by India and England as the latter follows parliamentary sovereignty where the legislature is supreme. Thus, the Indian constitutional scheme would have fallen into a desultory loop if the framers provided absolute power to the speaker.
After the enactment of the constitution there exist plenty of cases in the garb of the Indian judiciary where the apex court deliberated that judicial review is essential and considered as an integral part of the constitution of India. The objective of judicial review is to keep a check on the legitimacy of administrative actions and statutes by the High courts and the Supreme Court of India.
The appurtenant question to emphasize is whether the speaker’s decision while certifying a bill is subject to ‘Judicial Review’ or it should be considered as final, expelling the intervention of the court in parliamentary affairs. The apex court till the time strictly follows the precedent set forth in Mohd. Saeed Siddiqui v. the State of U.P., and Yogendra Kumar Jaiswal v. the State of Bihar., that the certificate issued by the speaker is final and it does not call for any judicial review, the court further forthrightly held that the speaker’s certification of a bill is beyond the judicial review powers of the supreme court. This orthodox hinged practice is challenged by the puissant dissent opinion of Justice DY Chandrachud in the widely hailedAadhar Judgement where the majority of judges stood firm to the contention that money bills cannot be judicially reviewable. On the contrary Hon’ble J., D.Y Chandrachud compels to revisit the bicameral constitutional structure of the country where the Rajya Sabha holds an important role in lawmaking, and superseding the authority of the Rajya Sabha is like challenging the constitutional scheme and giving an upper hand to the Lok Sabha house.
Firstly, J. Chandrachud overruled the ruling as laid down in Mohd. Saeed Siddiqui and Yogendra Kumar, thus breaking the shackles of the past, obstructing the courts to act effortlessly in these matters. Secondly, By relying on the line of rulings such as Special Reference no 1 of 1964 case, Ramdas Athwale’s case, and Raja Ram Pal’s case the judge for the first time in toto held that “the validity of the proceedings in the parliament or a state legislature can be subject to judicial review on the ground that there is illegality or constitutional violations”
Concluding Remarks
There was an excruciating need to disentangle this issue by constituting a large bench (7-Judges bench) knowing that many other constitutional matters which holds utmost importance will be at abeyance such as the Electoral Bonds scheme and others as aforementioned which was also passed as a money bill and has been challenged in the Supreme Court. Now that the pre-hearing steps of all the matters including the Rojer Mathew’s case is completed, it is expected
The origin of the money bill can be traced back to the British parliament act of 1911 as discussed and the drafter of the constitution had the intuition that this institutional power can very well be misused so they provided the power of ‘Judicial Review’ to the judiciary who have envisaged the role of an expounder of the constitution. The constitution of India only explicitly immunes the legislative proceedings of the parliament from judicial review on the ground of mere ‘Irregularity of Procedure’ but the money bill provision nowhere contains that the decision of the speaker is not open to judicial review. The interpretation of the same appears that with such ample powers in hand, the speaker can certify almost any bill as a money bill in order to tackle the scrutiny of the Rajya Sabha and such mala-fide certification of the bill is considered illegality of the constitutional procedure (Jurisprudence developed by the Supreme Court itself) and not a mere irregularity. It is thus upon the supreme court to constitute the larger bench to decide the matter forthrightly without further delay.
The opinion/thoughts/ideas or any view of the author expressed and published on the VIPS Law Blog is not endorsed by the institution and the institution shall not be held responsible or accountable for the opinion expressed by the author on the VIPS Law Blog.
[The author is a final year BALLB student at Delhi Metropolitan Education, GGSIPU]
VIPS LAW BLOG 