November 14, 2019 5:00:41 am
Expressing doubts over the correctness of a five-judge Constitution Bench’s 2018 verdict upholding the Aadhaar Act which had been passed as a money Bill, a five-judge Constitution Bench, hearing a challenge to certain provisions of the amended Finance Act, 2017, Wednesday decided to refer the question to a seven-judge Bench.
Like the Aadhaar Act, the amended Finance Act, 2017 too had been passed as a money Bill.
The Bench said “the analysis in K S Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches”. Incidentally, petitions seeking review of the Aadhaar Act ruling are still pending in the Supreme Court.
“It is clear to us that the majority dictum in K S Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a ‘Money Bill’ do not conform to Article 110(1)(a) to (g),” the Bench, comprising Chief Justice of India Ranjan Gogoi and Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna, said.
Under Article 110(1), a Bill is deemed to be a money Bill if it deals only with matters specified in Article 110 (1) (a) to (g) — taxation, borrowing by the government and appropriation of money from the Consolidated Fund of India among others. A money Bill can only be introduced in Lok Sabha and does not need the consent of Rajya Sabha.
According to Article 110 (3) of the Constitution, “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.” However, the court in the Aadhaar case had said that the Speaker’s decision will be subject to judicial scrutiny.
On the Aadhaar Act ruling by then Chief Justice of India Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, the Bench said: “Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K S Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches.”
“Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K S Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K S Puttaswamy (Aadhaar-5), we accordingly direct that this batch of matters be placed before Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.”
The order noted the Attorney General’s submission that “constitutionality of the Finance Act, 2017 would be safe if its dominant provisions, which form the core of the enactment, fall within the ambit of Article 110(1)(a) to (f). Other minor provisions, even if not strictly incidental, could take the dominant colour and could be passed along with it as a Money Bill. As per such interpretation, provisions ought not to be read in a piece-meal manner, and judicial review ought to be applied deferentially”.
While the observations and reference to a larger bench do not have any immediate ramifications on the Aadhaar law, its validity will be subject to a fresh review by a larger bench.
Incidentally, Justice Chandrachud had been the lone dissenter in the Aadhaar ruling of 2018, criticising the government for passing the Aadhaar Act as a money Bill. He had called it a “fraud on the Constitution” and “subterfuge”.
In 2016, the Congress had challenged the passage of the Aadhaar legislation as a money Bill at a time when the BJP-led NDA was well short of a majority in Rajya Sabha. Congress leader Jairam Ramesh, who had moved five amendments in Rajya Sabha, had filed the writ petition, accusing the government of bypassing the Upper House by bringing the Aadhaar law as a money Bill. Congress leader and senior advocate P Chidambaram had argued the case.
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