The Supreme Court has dismissed petitions seeking a review of its 2018 judgment upholding the constitutional validity of the Aadhaar Act, with Justice D Y Chandrachud dissenting saying the Court should wait till a larger Bench decides the question of certification of a Bill as money Bill before deciding the review petitions.
The Aadhaar Bill had been certified by the government as a money Bill, enabling it to get it cleared without getting the assent of a majority in the Rajya Sabha. A five-judge Bench headed by then Chief Justice Dipak Misra had upheld the Aadhaar Act in a 4:1 ruling on September 26, 2018.
The January 11 order was given by a five-judge Bench, comprising apart from Justice Chandrachud, Justices A M Khanwilkar, Ashok Bhushan, Abdul Nazeer and B R Gavai. The majority judgment said, “We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed.”
In his dissenting judgment, Justice Chandrachud said two of the “critical questions” dealt with by the Aadhaar ruling were “whether the decision of the Speaker of the House of People… to certify a bill as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and… if the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the Aadhaar Act), had been correctly certified as a ‘Money Bill’”.
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The issue whether judicial review can be exercised over a decision of the Speaker had arisen subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd. This was in the context of whether some provisions of the Finance Act, 2017 (relating to appointments to tribunals and the conditions of service of members), could have been certified as a money Bill. That judgment had said that the Speaker’s decision was not beyond judicial review though the scope was extremely restricted. It had also said that the 2018 Aadhaar verdict had not answered conclusively the question as to what constitutes a money Bill under Article 110 (1) and had directed that it be referred to a larger Bench.
Justice Chandrachud referred to this, saying the larger Bench to decide what constitutes a money Bill and the extent of judicial review over a certification by the Speaker was yet to be constituted. “Dismissing the present batch of review petitions at this stage — a course of action adopted by the majority — would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger Bench’s consideration of the very issues which arise before us… With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment,” he said, adding that a larger Bench’s determination “would have an undeniable impact” on the validity of reasons given by the Aadhaar ruling pertaining to the certification by the Speaker.
Justice Chandrachud also referred to the Sabarimala case where a nine-judge Bench in February 2020 had referred certain questions of law arising in the context of an earlier decision by a five-judge Bench in September 2019 to a larger Bench while keeping the review petitions pending.
“If these review petitions (in the Aadhaar matter) are to be dismissed and the larger Bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (the Aadhaar case), it would have serious consequences — not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger Bench decides the questions referred to it in Rojer Mathew,” he said.
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