By Apoorva Mandhani
[su_quote cite=”Chief Justice of India, J.S. Khehar”]If the Speaker says blue is green, we will tell her that blue is blue and not green[/su_quote]
The above quote came in the wake of the Supreme Court agreeing to hear a challenge, by the Member of Parliament Mr Jairam Ramesh, to the passing of the Aadhaar Bill being categorized as a Money Bill by the Speaker of Lok Sabha.
Since its introduction as a Money Bill in March, 2016, the Aadhaar (Targeted delivery of Financial and other Subsidies, Benefits and Services) Bill, has found itself in a thicket of controversies.
As the government lacks majority in the Rajya Sabha, the Bill was introduced as a Money Bill in the Lok Sabha so as to bypass the scrutiny of the upper house. However, the quick fix approach of the government has paved the way for interesting legal battles.
At the time of the introduction of the Bill, the government stated that the Bill confines itself only to governmental expenditure. | Photo Courtesy: NewGramWhat is a Money Bill?
[su_pullquote align=”right”]The Rajya Sabha can only make recommendations but no amendments to a Money Bill.[/su_pullquote]
India has a bicameral Parliament, ensuring a check on hasty decisions by requiring every legislation to be approved by a simple majority in both the Houses, in a general scenario. However, an exception has been carved out for Money Bills. The Rajya Sabha can only make recommendations but no amendments to a Money Bill, and must return it to Lok Sabha within 14 days, or else it is considered approved.
The provision has been borrowed from the British law. However, in India, the categorization of a Bill as a Money Bill is the sole discretion of the Speaker. This is unlike that in the UK, where the Speaker is required to consult two senior members, usually one from either side of the house, appointed by the committee from amongst those senior MPs who chair General Committees.
A quest for supremacy
The Bill has rekindled the debate on the uninhibited power enjoyed by the Speaker.
This is against the scope of scrutiny that the courts can undertake into parliamentary proceedings. This is because, as opposed to the financial exigency envisaged by the Constitution-makers, the decision to classify any Bill as a Money Bill, in reality, appears to have been inspired by political expediency.
[su_pullquote align=”right”]The UIDAI is authorised towards the collection, preservation and usage of biometric data of individuals.[/su_pullquote]
The move was justified by the Finance Minister Arun Jaitley, by referring to the preface of the Bill which highlightsTargeted delivery of Subsidies as one of the main objectives of the Bill. This is despite the fact that the Bill primarily provides for the creation of a body like the Unique Identification Authority of India (UIDAI). The UIDAI is authorised towards the collection, preservation and usage of biometric data of individuals for various purposes, including disclosure of data in the name of national security, protection of privacy, etc.
This justification brings forth the discourse over the use of the word only in Article 110 (1) of the Constitution of India, which defines a Money Bill. It states that a Bill would be deemed to be a Money Bill, if it contains the only provisions dealing with the matters enlisted therein.
[su_pullquote]The distinction between an Ordinary Bill and a Money Bill was made essentially to avoid delays.[/su_pullquote]
A perusal of the Constitutional Assembly debates tells us that the distinction between an Ordinary Bill and a Money Bill was made essentially to avoid delays. Further, an amendment moved by Mr Ghanshyam Singh Gupta, proposing to delete the word only was rejected by the Assembly, reinforcing the significance of a narrow approach to the interpretation of the definition.
In the light of this, Aadhaar cannot be categorised as a Money Bill, because it does not contain the “only” provisions dealing with the matters enumerated in the Article 110(1) from (a) to (g). It could have been considered a Money Bill if it had dealt only with the flow of money in and out of the Consolidated Fund of India. However, it deals with a lot more.
Scope for judicial review
Dr Anup Surendranath opines that the Supreme Court does hold the power to judicially review the Speakers decision in this regard.
The issue of compliance of the Aadhaar Act with the Article 110 is fairly uncomplicated, as compared to the issue of judicial review of the Speakers decision to categorise a Bill as a Money Bill. Dr Anup Surendranath, a Professor of Constitutional law at National Law University, Delhi, in a research note opines that the Supreme Court does hold the power to judicially review the Speakers decision in this regard. This is despite the finality clause in Article 110 (3), which states that if a question arises as to whether a Bill is a Money Bill or notthe decision of the Speaker in this regard shall be final.
There have been significant judgments from the Supreme Court which establish that such finality clauses do not exclude judicial review. For instance, in the landmark Supreme Court decision in the case of Kihoto Hollohan v. Zachillhu, the Supreme Court had held that the finality clause in Para 6 (1) of the Tenth Schedule to the Constitution of India, does not exclude the extraordinary jurisdiction of the Supreme Court under the Article 136 and of the High Courts under Articles 226 and 227.
[su_pullquote align=”right”]Article 122 states that the validity of any proceeding in the parliament can (only) be called into question on the grounds of procedural irregularities.[/su_pullquote]
Another concern crops up in the form of Article 122 of the Constitution of India, which states that the validity of any proceeding in the parliament can (only) be called into question on the grounds of procedural irregularities. However, the apex court, in the case of Raja Ram Pal v. Honble Speaker, Lok Sabha and Others, had observed that parliamentary proceedings which are found to suffer from substantive illegality or unconstitutionality, cannot be held protected from judicial scrutiny by Article 122, as opposed to mere irregularity.
However, there also exist cases wherein the Court had refused to entertain challenges to the Speakers decisions. In Mohd Saeed Siddiqui v. State of UP, the Court had held that the decision of the Speaker (State Legislative Assembly), in determining a Bill to be a Money Bill, could not be judicially reviewed and that the procedure adopted by the State Legislature was beyond judicial review. It had further opined that the question whether the Bill did not satisfy the requirements of a Money Bill was an irregularity of procedure and those irregularities of procedure could not be reviewed by the court.