(Ayush Mishra is a practicing Advocate at Allahabad High Court. He is graduated from NALSAR University of Law, Hyderabad)
Featured Painting – “Winning Speaker” by Jan Steen
Apart from the privacy debate, the second major controversy that the Aadhar scheme had created was regarding the judicial review of the power of the speaker of the Lok Sabha to classify a bill as “money bill”. The procedural hurdles in terms of the clearance of the bill is different for money bills and non-money bills. In the case of a non-money bill, the Rajya Sabha enjoys almost equal power as compared to the Lok Sabha but in a money bill, the powers of the Upper House are limited. As Article 110(3) accords finality to the decision of the speaker in terms of the categorization of the bill as money bill or non-money bill, what is in questions is precisely this power as it has been argued that the speaker may classify even a non-money bill as a money bill and therefore limit the powers of the Rajya Sabha vis-à-vis that bill. In a federal democratic setup, this bypassing of the Rajya Sabha by circumventing it, leads to subversion of the spirit of the federal constitution itself. With the overarching theme of Federalism, the author , in this two-part blog series, has explored the question of whether or not this decision of the speaker to classify a bill as a money bill is judicially reviewable? To unravel this dilemma, the author, in Part-I of the blog, undertakes the review of the Parliament Act, 1911, the Constituent Assembly Debates and the Rajya Sabha debates to track the historical evolution of Article 110(3) of the constitution of India and attempts to locate a jurisprudential congruence.
While Article 110(1) lays down the criteria upon which a bill can be classified as a money bill, Article 110(3) accords finality to the decision of the speaker in this regard. What is noteworthy is that there is an absence of guidance vis-à-vis scenarios where the speaker’s decision evidently deviates from the parameters laid down in Article 110(1). This issue is that if we do not allow judicial review in this matter of evident departure from the criterion mentioned in Article 110(1), the same is rendered redundant. On the other hand, if judicial review is allowed, the expression “shall be final” of Article 110(3) would be ineffective and this finality clause would become redundant. Either ways, redundancy of constitutional provisions appears to be an unavoidable result. Therefore, the degree of finality accorded to the decision of the speaker by Article 110(3), as well as the degree of protection accorded to this decision by Article 122 needs to be understood to arrive at a constitutional answer to this paradox. The author, therefore, reviews the literature in this regard to explore how various commentators have tried to resolve the issue.
THE PARLIAMENT ACT, 1911
The Draft Indian Constitution[i] did not envisage the possibility of a controversy vis-à-vis the categorization of bills and therefore did not contemplate a dispute settlement mechanism for such a situation. To remedy this, the Expert Committee on Financial Provisions[ii] recommended the attachment of a certificate when the bill is sent to Rajya Sabha to accord finality to its status and prevent further controversy. This ‘finality clause’ was in congruence with the commensurate provisions of the Parliament Act, 1911 and therefore to understand the specific nuances of Art. 110(3), it is imperative that we review these corresponding clauses of the Parliament Act, 1911 [hereinafter referred to as ‘the act’].
The primary intention of enacting the act was to subordinate the power of the House of Lords in financial matters.[iii] The House of Commons and the House of Lords had been at loggerheads vis-à-vis certain taxation reforms and therefore the act was enacted so as to limit the powers of the upper house w.r.t. money bills. A subsection in the act accorded finality to the decision of the speaker. It read:
“There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill.”[iv]
It can be inferred that the principal intent behind primacy to the speaker’s decision was the subordination of the upper house to the lower one vis-à-vis money bills. Transposing this scheme into the Indian context, it can be argued that the intention of the framers was to similarly subordinate the Rajya Sabha w.r.t. money matters. Given that the primary idea behind the finality clause was prioritization and not insulation from judicial review, it cannot be conclusively said that Article 110(3) bars judicial review.
What is pertinent to note at this juncture is that the 1911 Act made the categorization of the bill as “money bill” contingent on the ‘opinion of the speaker’[v]. However, the definition of the money bills provided in Article 110(1) of our constitution is independent of the personal views of the speaker and has to be ascertained on certain predefined parameters mentioned therein. Such definition highlights the intention of the framers not to ascribe absolute final status to the speaker’s decision. Secondly, the House of Lords had hereditary and elitist membership and ipso facto, its subordination could have been justified at a certain level. However, the Rajya Sabha is a body that is indirectly elected and which represents the states. Therefore, it is argued that in a federal democratic setup like ours, the subordination of the Upper House would echo the subordination of the constitution itself.[vi]
Furthermore, the Parliament’s role under the British and Indian constitutional structure has been differentiated by commentators. In the former, on account of being a Parliamentary Sovereignty, the legislature is supreme, while in the latter, the Constitution is supreme rather than any particular organ. Therefore, while conferral of absolute finality to speaker’s decision can be justified in the former case, no acts of any particular organ (in context: the acts of the speaker of the legislature) can be held to be absolutely final in the latter. Such a conferral, in spite of alleged irregularity and illegality, in our context, would be antithetical to the governing constitutional structures. Commentators have also argued that the complete adoption of the bar to judicial review from the 1911 Act would lead to the derogation of the doctrine of separation of powers under our constitution.
Moreover, commentators have argued that “the Speaker of the Lok Sabha enjoys greater conclusivity than the Speaker of the House of Commons”[vii] as the original section 1(3) of the 1911 Act provided for consultation by the speaker before taking the decision but the modified incorporation of this in our constitution did not provide for the same. Even so, the Rajya Sabha Debates have revealed that the Upper house itself stated that though the house could make a request for a reconsideration of the decision of the speaker to the speaker, the final authority of law has to subside with the speaker himself.[viii]
Henceforth it is noted that though the incorporation of section 1(3) of the 1911 Act into our constitution does not per se accord finality to the speaker’s decision as the constitutional schemes in the two contexts is different, the absence of consultation provision and subsequent Rajya Sabha debates seem to impart immunity to the speaker’s decision.
CONSTITUENT ASSEMBLY DEBATES
A contrary view is expressed by commentators who rely on the Constituent Assembly debates (in context of Draft Article 101 which later became Article 122 of our Constitution). It has been argued that it was the intention of the framers to allow judicial review of the speaker’s decision under Article 110(3). Article 122 renders the parliamentary proceedings immune from judicial review on the ground of “irregularity of procedure”. H.V. Kamath, during the debates of the Constituent Assembly had advocated for an amendment in Article 101 to clarify that the expression ‘shall not be called into question’ would mean ‘shall not be called in question in any Court.” In response, Ambedkar argued that since parliamentary proceedings could only be challenged in a court, the substitution would be redundant as the rational interpretation of the provision itself is already in reference to a Court of Law.[ix] The implications of this clarification are of immense importance here as it suggests that unless otherwise specified, the proceedings can be questioned in a Court of Law and henceforth they are ordinarily reviewable.
However, juxtaposing Article 122 jurisprudence with Article 110(3) leads to an adverse inference. The premise being that such proceedings can only be challenged before a court, any exception that is carved out which shields the provision form review must be interpreted to be specifically targeted towards judicial review itself. In light of this, it can be argued that Article 110(3) was primarily placed for exclusion of judicial review only.
[i] Article 75 (which later became Article 110 of the Constitution)
[ii] The particular report by the committee is accessible through B. Shiva Rao ed, The framing of India’s Constitution– Select Documents, Universal Law Publishing Co. Pvt. Ltd., Vol. 3, Reprint 2005, p. 281.
[iii] The Statement of Objects for the Parliament Act, 1911 read: “And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords” ; Accessible at http://www.legislation.gov.uk/ukpga/Geo5/1-2/13/introduction,
[iv] Section 1(3) of the Parliament Act, 1911.
[v] Section 1(2) of The Parliament act, 1911; it read- “A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions……………”
[vi] See Bhalerao, S. S. “The Second Chamber: Its Role in Modern Legislatures: the Twenty-five Years of Rajya Sabha” New Delhi: National Publishing House for the Rajya Sabha Secretariat, 1977, p.3.
[vii] Durga Das Basu (2008), Justice Chandrachud, Commentary on the Constitution of India. Vol. 4. Lexis Nexis, p. 5285.
[viii] The Rajya Sabha Debate dated April 30, 1953; The chairman therein observed :- “. Such a certificate is conclusive for all purposes and is not to be questioned in any court of law. That is how the procedure is there which governs us.”
[ix] See Proceedings dated 23/05/1949;
Leave a Reply