Editor's Note: This copy was published on 8 May, 2018. It is being republished in light of the Supreme Court's verdict on the constitutionality of Aadhaar likely being pronounced tomorrow.
As the Aadhaar hearings reach their conclusion, a key issue raised last week by the Attorney General for the State was on the passing of Aadhaar as a Money Bill. The Attorney General’s argument is that the decision of the Speaker on whether a given bill is a Money Bill is final and that this is protected from judicial review. This is, in fact, the position held by the Supreme Court in previous cases, making this an important point of concern with the Aadhaar case.
Reducing the Rajya Sabha to a namesake feature
The petitioners to the Aadhaar case have also pointed to a deeper issue, allowing the passing of an Act that is not a Money Bill as one, and protecting this from judicial review, could allow just about any law to be passed as a Money Bill. The effect of this is first, to impact the democratic and federal structure of the Constitution, and second, to reduce the Rajya Sabha to but a namesake feature of the legislative process.
This is more so when one looks at the recommendations that were made by the Rajya Sabha, recommendations which could well have remedied several issues raised by the petitioners were, unfortunately, but legally overlooked since Aadhaar was passed as a Money Bill. These included, for instance, a recommendation to keep Aadhaar voluntary and to drop the controversial Section 57 from the Act.
Improper application of previous rulings
While this issue has been examined several times in the past, now that the Supreme Court’s decision is awaited, it is worth re-examining the issue. For this, there are two key factors: first, is the Aadhaar Act a Money Bill, and second, is the passing of the ordinary bill as a Money Bill exempt from judicial review. While there are multiple issues here, in this article, the previous rulings of the Supreme Court providing immunity from judicial review are looked at. Here, it is argued that these rulings are founded on the improper application of a proper (previous) ruling of the Supreme Court.
Is the Aadhaar Act a Money Bill
To deal with the first issue of whether or not the Aadhaar Act is a Money Bill, Article 110 of the Constitution needs to be looked at, which defines a Money Bill which includes only, all or any of seven listed matters, such as the imposition of the tax. For the Aadhaar Act, this was sought to be established through its Preamble which describes Aadhaar as an Act passed to ensure the targeted delivery of benefits, subsidies, services, etc., the expenditure of which is incurred from the Consolidated Fund of India (CFI). Thus, as per the State, Aadhaar prevents leakages of subsidies, etc. thus reducing the loss of funds from the CFI, and is thus a Money Bill.
A bare reading of the Aadhaar Act, however, indicates that Section 7 is the only provision which bares any relation to a Money Bill. The CFI, in fact, is mentioned only thrice in the whole Aadhaar Act, in the Preamble, in Section 7, and in Section 25, which directs that fees or revenue collected by the UIDAI should be credited to the CFI. Every other provision deals with the establishment of Aadhaar, a nation-wide identity system, based on biometric authentication, and using a centralised database.
Aadhaar Act’s core purpose is to create an identity mechanism
The use of Aadhaar for Section 7 benefits is thus incidental to the main purpose of the Act, which is to create a new identity mechanism. There is no clearer evidence of this than in Section 57 of the Aadhaar Act, which allows anyone, even private entities, to use Aadhaar for any purpose, and further, as per the State, allows Aadhaar to be made mandatory for any purpose. Section 7, as argued by the petitioners, is in no way essential to the Aadhaar Act.
In fact, the Aadhaar Act should have been passed, without Section 7, as an independent, ordinary bill, and Section 7 could have been passed as an independent amendment to other laws, such as the National Food Security Act. This is similar to, say the independent passing of Section 139AA of the Income Tax Act or the amendment to the PMLA Rules for the use of Aadhaar. Arguably, only such a passing of Section 7, independent of the Aadhaar Act, could have been done as a Money Bill.
The Bench’s concern with Section 57 in a Money Bill
The Bench, in the Aadhaar hearings, has expressed concerns with Aadhaar as a Money Bill, in particular with Section 57, observing that such a provision could have no place in a Money Bill. As expected, the State argued the opposite, that every other provision of the Aadhaar Act, or the entire set up of the Aadhaar system, is incidental to Section 7. Further, the State argued that Section 57 is a mere ancillary provision in the Aadhaar Act.
The Bench will thus take the final decision on whether Aadhaar is a Money Bill or not. The observations of the Bench, however, lends some hope that the Aadhaar Act may be ruled to not be a Money Bill, or, at the very least, that Section 57 be struck down. Supposing the Court does rule that Aadhaar is, in pith and substance, not a Money Bill, this leads to the next issue, is its passing as a Money Bill immune from judicial review.
Article 110 and 122 on immunity from judicial review
The State’s argument that it is so immune, derives from Articles 110 and 122 of the Constitution, among others. Article 110 (3) states that the decision of the Speaker on whether or not a bill is a Money Bill, is final (note here that this doesn’t specify if it is final for Courts of law — this NIPFP Working Paper argues that it is not). A Money Bill must be certified as one by the Speaker before it is sent to the President for his assent, indicating that the Aadhaar Act must have received the Speaker’s certificate as well. Secondly, Article 122 prevents the Court from inquiring into the validity of parliamentary proceedings on the grounds of procedural irregularity.
Law on judicial review of parliamentary proceedings
The Supreme Court has, over time, developed the following law in relation to these issues. In cases such as the Special Reference No. 1 of 1964, as well as the 2007 judgment in Raja Ram Pal v. Speaker, Lok Sabha, the Supreme Court held that the while the Court may not review procedural irregularities in parliamentary proceedings as per Article 122, the Article doesn’t exempt review on other grounds. Thus, judicial review is possible on other grounds, in particular, substantive illegality and unconstitutionality. This includes reviewing even the decision of the Speaker.
Judicial review of the passing of an ordinary bill as a Money Bill
However, when applying this rule specifically to the issue of the passing of an ordinary bill as a Money Bill, this was held to be an issue of procedural irregularity, and not substantive illegality. The existing law on the issue, is thus, directly in support of the State’s argument, that the passing of Aadhaar as a money bill is exempt from judicial review.
However, a closer look at the evolution of the law on this issue indicates some issues. These rulings are founded on the 1963 case of Mangalore Ganesh Bedi v. The State of Mysore. In this case, the allegation was that the Act in question was a Money Bill, but was passed as an ordinary bill. The Supreme Court found that the Bill in question was, in fact, an ordinary bill, and went on to observe that even if it wasn’t an ordinary bill, and was a Money Bill, it's passing as an ordinary bill would be a procedural irregularity, immune from judicial review as per Articles 110, 122, and 255.
This observation of the Supreme Court was followed again by it subsequent rulings — in the 2014 case of Mohd Saeed Siddiqui v. State of UP, and thereafter in the 2015 case of Yogendra Kumar Jaiswal v. State of Bihar , both of which were dealing with Acts alleged to be ordinary bills, that were passed as Money Bills. In these cases, the ruling in the Mangalore Ganesh Bedi case was followed, and this was held to be a procedural irregularity and not substantive illegality. In particular, the Raja Ram Pal case and the Special Reference were discussed and held to be not applicable since the factual matrix was different in those cases, unlike the Mangalore Ganesh Bedi case, which deals with the passing of money bills specifically.
The passing of a Money Bill as an ordinary bill and vice versa
Here, it can be observed that a key difference between the Mangalore Ganesh Bedi case, and the Mohd Saeed Siddiqui and Yogendra Kumar Jaiswal cases, was not taken into account by the Court. The former, dealt with an alleged Money Bill passed as an ordinary bill, while the latter cases dealt with the opposite, an alleged ordinary bill passed as a Money Bill. The difference is of particular concern when the procedure of passing the bills is taken into account.
i) Approval of both Houses of Parliament is absent
An ordinary bill must be approved by both Houses of Parliament. A Money Bill, on the other hand, needs to be approved only by the Lok Sabha. While the Rajya Sabha may make recommendations, these are non-binding, and further, its approval is not required for the passing of the bill. Thus, when an alleged Money Bill is passed as an ordinary bill, it has been approved by both houses of parliament as opposed to one. The core requirement, that is the approval of the Lok Sabha, is fulfilled. This, is thus, a mere procedural irregularity. An alleged ordinary bill passed as a Money Bill, however, means that the approval required of the Rajya Sabha was not given. A core requirement, that is that both houses must approve the bill, has not been fulfilled. This is thus more than a procedural ‘irregularity’.
The Rajya Sabha’s severe criticism of this move, describing it as an ‘undemocratic process’, adopted ‘deliberately and mischievously’ to by-pass its approval, must be remembered here. Attaching such mala fides to this move have far more serious consequences than a mere procedural irregularity would have, indicating again that this is more than that, and is worthy of judicial review.
ii) Article 255 of the Constitution does not protect lack of Rajya Sabha’s approval
A second issue with the passing of an alleged Money Bill as an ordinary bill is that a Money Bill must only be introduced into the Lok Sabha on the recommendation of the President. The lack of this recommendation is corrected by Article 255 of the Constitution. This Article holds that missing recommendations or sanctions are to be treated as a procedural irregularity.
Specifically, what the Article says is that when the missing recommendation/sanction for an Act required is that of three specified persons — the Governor, the President, or the Rajpramukh, and the Act in question is assented to, either by that specific person, or the President, then this is to be treated as a procedural irregularity. Note here again, that similar to the passing of a Money Bill as an ordinary bill, the core requirement, that is the recommendation or sanction of the required person, is, overall, given in the form of assent.
Thus, in the case of Mangalore Ganesh Bedi, where this recommendation/sanction was missing, this factor is corrected and protected under this Article. Note, however, that this Article does not similarly exempt the lack of approval of one house of Parliament. The lack of the Rajya Sabha’s approval in passing an ordinary bill as a Money Bill, therefore, cannot be corrected or protected under Article 255.
Incorrect application of the Mangalore Ganesh Bedi ruling
From this, it can be observed that the Supreme Court’s ruling in Mangalore Ganesh Bedi, holding that the passing of an alleged Money Bill as an ordinary bill, is a procedural irregularity, is a correct position. However, the adoption of this ruling to hold that the opposite in subsequent rulings, the passing of an alleged ordinary bill as a money bill, without taking these differences into account, is incorrect. Further, the subsequent rulings cite the same three articles — Articles 110, 122, and 255 to rule this, without taking into account that Article 255 does not apply there.
For instance, in the Mohd Saeed Siddiqui case, it was held that Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only, as the third criteria protecting the passing of an ordinary bill as a Money Bill from judicial review. Clearly, this doesn’t take into account the very specific recommendations/sanctions referred to in Article 255, which bear no relation to the lack of approval of the Rajya Sabha.
Based on this, it can be argued that the rulings of Mohd Saeed Siddqui, and Yogendra Kumar Jaiswal, is an incorrect position of the law. Further examination was required based on the specific facts of the case, which is missing in these cases.
Mangalore Ganesh Bedi ruling was just an observation
A Working Paper by the National Institute of Public Finance and Policy, on Judicial Review and Money Bills (summary here), comes to the same conclusion but on different grounds. The Paper points out that in Mangalore Ganesh Bedi, the Court had held that the Act in question was, in fact, an ordinary bill, unlike the allegations made that it was a Money Bill. Based on this, they argued that the Court’s additional statement, that had it been a Money Bill passed as an ordinary bill, the issue was a procedural irregularity and immune from judicial review, is obiter (just an observation), and not ratio (a binding rule of law).
The adoption of this statement in the subsequent judgments without analysis or discussion, they argue, is thus incorrect. This argument of the NIPFP Paper, in fact, is reminiscent of those made in relation to the Kharak Singh and MP Sharma case in relation to the Right to Privacy judgment, where it was argued that statements made in these cases that the right to privacy is not a fundamental right, were obiter and not ratio. As is known, both these cases were finally overruled in the Right to Privacy judgment, as laying down an incorrect position of law.
The need for re-examination by the Court
The issue of whether the passing of an ordinary bill as a Money Bill is exempt from judicial review thus needs to be thoroughly analysed and examined by the Supreme Court. This is particularly when the impact of an Act like Aadhaar is taken into consideration, one that affects people’s fundamental rights, including the right to privacy as well as the right to equality through large-scale exclusion.
Knowing that the Rajya Sabha’s involvement may have prevented this, makes the need for the scrutiny of both houses that much more important. It is hoped that the Supreme Court will find that the passing of a bill like Aadhaar, with such a bare minimum a connection to a Money Bill, as a Money Bill, is more than a mere procedural irregularity, and merits the review of the Court.
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.
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Updated Date: Sep 25, 2018 18:50 PM