Monday, May 16, 2016

The power to certify | M.R. MADHAVAN

Recently, the Aadhaar Bill and the Finance Bill were passed as Money Bills, though they may not have met the strict criteria laid out in the Constitution. This meant that the Rajya Sabha had only a recommendatory role while discussing these Bills.
Article 110(1) of the Constitution states that a bill can be termed as a Money Bill if it contains “only” six types of provisions or anything incidental to these. Broadly speaking, these include taxation, government receipts and expenditure, government borrowings, and guarantees.
The government has argued that the primary objective of the Aadhaar Bill was to create a system for providing subsidies, and as the provisions relate to government expenditure the Bill can be termed as a Money Bill. The counterargument is that the Aadhaar Bill has several other provisions, including permitting use of the system for other purposes, so it does not meet the requirement of having “only” the six provisions. A writ petition has been filed in the Supreme Court challenging this categorisation.
The Finance Bill too had provisions other than those related to taxation. It amended the Reserve Bank of India Act to enable the creation of a monetary policy committee. It also amended the Foreign Contribution Regulation Act (with retrospective effect) to change the definition of foreign company.
Article 110(3) states: “If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.” In addition, Article 122 prohibits courts from inquiring into proceedings of Parliament and examining their validity. Given these two Articles, can the Supreme Court examine whether the certificate of the Speaker was correctly given?
There was a similar case decided in 2014. The Uttar Pradesh Legislative Assembly passed a Bill to amend the Uttar Pradesh Lokayukta and Up-Lokayuktas Act as a Money Bill and did not send this to the Legislative Council. The Act was challenged ( Mohd. Saeed Siddiqui v State of U.P. ) but the Supreme Court decided that the decision of the Speaker “that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212”. Article 212 applies to State legislatures and is analogous to Article 122 for Parliament.
Scrutiny by the Rajya Sabha
Therefore, the question is: If the Supreme Court cannot examine whether the Speaker gave the certificate correctly, what prevents a misuse of this provision to prevent scrutiny by the Rajya Sabha? To illustrate with an extreme example, if a Bill to amend the Indian Penal Code is certified as a Money Bill, is that decision final and not open to judicial scrutiny?
There are several prior cases in which the Supreme Court has examined the decision of the Speaker or the legislature. One set of cases pertains to the anti-defection law as laid down in the Tenth Schedule to the Constitution. Paragraph 6(1) states: “If a question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.” Paragraph 6(2) says that all proceedings in relation to such question shall be deemed to be proceedings within the meaning of Articles 122 or 212. Note the similarity to the wording used in Article 110(3).
The Supreme Court examined the constitutional validity of this paragraph in Kihoto Hollohan v. Zachillhu (1992). It said: “That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen, is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.” It went on to say that the protection of Articles 122 and 212 was only to protect the validity of proceedings from mere irregularity of procedure. The Court also struck down paragraph 7 (which barred judicial review) stating that it did not meet the requirements of Article 368(2), which requires ratification of half of all State legislatures for any changes made to provisions related to the higher judiciary.
Privilege of the legislature
The Supreme Court has examined its powers of review under Articles 122 and 212 in the Raja Ram Palcase in 2007. This case pertained to the expulsion of some members of Parliament after they were found to have taken cash to ask questions in Parliament. The Court said: “The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article 122(1)”.
This principle was later applied in Amarinder Singh v. Spl. Committee , Punjab Vidhan Sabha , in 2010. In that case, the Supreme Court set aside the expulsion of Capt. Amarinder Singh from the Punjab Vidhan Sabha. The point to note is that the court has set limits to the privilege of the legislature under Article 122, and overturned its resolution to expel a member.
The Constitution has a system of checks and balances, which includes the Rajya Sabha as a check on the Lok Sabha. It requires all Bills to be passed by both Houses, with the exception of Money Bills (as these Bills are effectively equivalent to confidence motions). While the Speaker has the power to determine whether a Bill fulfils the requirements of a Money Bill, there has to be a check to ensure that this power is not misused. The Supreme Court should examine this issue under its power of judicial review under the principles laid out in the Kihoto Hollohan and Raja Ram Pal cases.
M.R. Madhavan is the president and co-founder of PRS Legislative Research.

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