Aadhaar: Is the Speaker’s passing of a Bill as a Money Bill subject to judicial review?

Abhimanyu Bhandari

The judgment of Supreme Court in the Aadhaar case seeks to balance on one hand our right to privacy and on the other, our right to food, shelter, employment and medical care.

Sikri J. delivering the majority view stated that “some provisions which we found offending are struck down, some others have been read down and some are tweaked with.”

Thus the right to privacy was protected to the extent that the right to food, shelter and employment could be preserved. This balancing of rights has created immense excitement as it seeks to create a “statutory regime that would now govern the citizenry” and ward off the danger (if any) of a surveillance state.

Dilip Cherian (a celebrated Image Guru) summed up the popular view by tweeting that,

“The Aadhar Verdict & new boundaries, most certainly don’t throw the baby out yet, but bathwater has certainly be tempered!”

However, the powerful dissent of DY Chandrachud J. leaves us thinking the importance of Mr Cherian’s use of the word “yet”.

Away from the more exciting issue of right to privacy versus a surveillance state, the Court had to deal with a more mundane issue of whether the Aadhaar Bill was wrongly certified as a “Money Bill” under Article 110 of the Constitution of India by the Speaker of the Lok Sabha, thereby excluding the Rajya Sabha from the legislative process?

The tweaks and reading down may have tempered the severity or the danger the Bill imposed on our right to privacy, but should such a Bill with such ramifications be allowed to escape the scrutiny of the Rajya Sabha?

More importantly, is the Lok Sabha Speaker’s decision as to whether a Bill is a ‘Money Bill’, judicially reviewable? On this question, the majority, having found that the Bill was rightly introduced as a Money Bill, did not find it necessary to deal with the question.

By terming a Bill as a Money Bill, the Speaker has the power to exclude the Rajya Sabha from scrutinizing such a Bill completely. Thus DY Chandrachud J. stated,

“The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution.”

In Special Reference No.1 of 1964, a seven-judge bench, while distinguishing “irregularity of procedure” from “illegality”, held that it is possible for a “citizen to call in question in the appropriate court of law, the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality.”

However, a long line of earlier judgments have been interpreted to indicate that the Speaker’s decision is not immune to judicial review because such certification is merely an “irregularity of procedure”.

In Manglore Ganesh Beedi Works v State of Mysore, a Constitution Bench of the Supreme Court held that the Indian Coinage (Amendment) Act, which provided for replacing old coinage with new coinage, was not a taxing measure. However, the court stated that,

“Even assuming that it is a taxing measure its validity cannot be challenged on the ground that it offends Article 197 to 199 and the procedure laid down in Article 202 of the constitution. Article 212 prohibits the validity of any proceedings in a legislature of a state from being called in question on the ground of any alleged irregularity of procedure….”

Relying on this judgement, the Court in Mohd. Saeed Siddiqui v State of UP  justified non-interference with Speaker’s certification by stating that,

“…the decision of the Speaker of the Legislative Assembly 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”.

In Yogendra Kumar Jaiswal v State of Bihar, the Supreme Court again following Mohd. Saeed’s case, reiterated that certification as to whether a Bill is Money Bill or not cannot be judicially reviewable.

The dissent of DY Chandrachud J. in the Aadhaar case liberates us from this long line of cases which restrain a court from judicially reviewing a Speaker’s certification as to whether a Bill is Money Bill or not. Chandrachud J, relying on Special Reference No.1 of 1964 case, Ramdas Athawale’s case and Raja Ram Pal’s case, notes that the “consistent thread which emerges” from these three cases is that

“the validity of proceedings in Parliament or a State Legislature can be subject to judicial review on the ground that there is an illegality or a constitutional violation.”

Thus, a Speaker’s certification cannot be immune from scrutiny by terming a wrong certification as merely an “irregularity of procedure.” Hence, the dissenting judgement rightly states that,

“a constitutional trust has been vested in the office of the speaker of the Lok Sabha. By declaring an ordinary bill to be a Money bill, the speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”.

Even the majority judgment, while clearly refusing to answer whether a Speaker’s certification can be judicially reviewed, did indicate that

“insofar as submission of the respondents about the justiciability of the decision of the Speaker of the Lok Sabha is concerned, we are unable to subscribe to such a contention. Judicial review would be admissible under certain circumstance.”

What those circumstances will be and whether a wrong certification by a Speaker would be judicially reviewable will remain a question for future. For now we live under a tweaked and watered down Aadhaar Act with the hope that Right to Privacy remains protected to some extent, and with the dissent of Chandrachud J. echoing in our minds that “our law must recognise the need to liberate its founding principles from its colonial past”.

Abhimanyu Bhandari is an Advocate practising in New Delhi.