The Specified Bank Notes (Cessation of Liabilities) Bill, 2017 was introduced in the Lok Sabha yesterday (7th Feb) as a Money Bill and was passed after a reasonably interesting debate headed by the Finance Minister. Nothing noteworthy here - the original 30th December ordinance needed to be placed before Parliament once it reconvened, and it was certified as a Money Bill as it falls comfortably within the restrictions imposed by Article 110 of the Constitution.
Specifically, Art. 110(1)(b) states that a Bill shall be deemed a Money Bill if it contains (only) provisions dealing with "... the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken by the Government of India", and since every currency note is a financial guarantee given by the Government, there can be very little opposition to this Bill's certification as a Money Bill. Not that no one has tried it, of course, but that particular piece is such a misguided polemic, it is best ignored anyway. (The very early use of the word "minions" ensures this, but there's even worse material within, such as the unashamedly incorrect interpretation of Rajya Sabha procedure regarding Rule 228, which deals with motions, not Bills).
There have been other instances though where the Government of the day has leaned upon the Speaker to certify Bills as Money Bills even though they contain provisions outside the list in Art. 110 that are not incidental to the pith and substance of the proposed legislation. The certification of the Bill that resulted in the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 as a Money Bill is one such controversial endorsement; it has been challenged in the Supreme Court and is the subject of the present tirade.
The issues are quite clear: since the Aadhaar Act deals with streamlining the various subsidies that are charged to the Consolidated Fund of India, there is sufficient pretext for the Government to certify the Bill as an MB and pre-empt its blocking by the Rajya Sabha, where it was, and continues to be, in minority. The petition challenging the Act contends that much of the Bill deals with providing "a legislative framework for the establishment and maintenance of a central database of identity-related information of residents, and elaborates as to how such information may be collected, stored and used" - issues that are arguably outside the scope of a Money Bill. It must be noted that the petitioner, former Environment Minister Jairam Ramesh, has a thing or two going for him; this is not just a petition by a current Rajya Sabha MP who's feeling left out.
Attorney General Mukul Rohatgi appeared before the SC in May 2016 to oppose the petition relying on Article 122. Certifying a Money Bill is contended to be a power vested in an officer of the Parliament by this Constitution for the purpose of regulating the procedure or the conduct of business in Parliament, and is therefore, per Art. 122(2), not subject to the jurisdiction of any court. The Government's response also contends that Jairam Ramesh should not be allowed to approach the SC under Art. 32 since there is no fundamental rights violation. Mr. Ramesh obviously feels that the right to privacy is the issue here, what with all the biometric information being gathered by the government. All in all, exactly the kind of juicy constitutional issue that we like to see debated.
To be honest, whether or not Art. 32 should have been used should really be immaterial to the issue. The larger concern is whether certification of Money Bills should be governed by guidelines laid down by the Supreme Court, or whether the present state of affairs should continue, i.e. the provision in Art. 110(3) "If any question arises as to whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon should be final" should prevail.
There is a third path available, as suggested by M. R. Madhavan, the President of PRS Legislative Research: the Lok Sabha create a consultative mechanism - two senior MPs, as is the case with the British House of Commons - to advise the Speaker regarding Money Bill certification. The British provision Mr. Madhavan refers to is contained in S. 1 of the Parliament Act, 1911, the last sentence in clause (3) of which reads as follows: "Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection." Perusal of a pamphlet regarding Money Bills produced for the Office of the Parliamentary Counsel (the Indian equivalent would be the Legislative Department within the Ministry of Law & Justice), reveals that the practice is to nominate one member from each of the two main parties to the "Chairmen's Panel" (now called "Panel of Chairs"). This doesn't seem like a feasible solution at all in our system, and is anyway at best a consultative mechanism which is to be employed "if practicable". Easy to guess what's going to happen there most of the time.
So we are left with the SC regulating parliamentary procedure, a prospect it has usually baulked at in the past; see for example the 2012 case of Mohd. Saeed Siddiqui v. State of Uttar Pradesh, wherein a three-judge bench led by Chief Justice Sathasivam refused to delve into the contention that the Uttar Pradesh Lokayukta and Up-Lokayukta (Amendment) Act, 2012, enacted by the U.P. Legislative Assembly without it passing through the U.P. Legislative Council, should never have been certified as a Money Bill. The Court held that "the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending and before it becomes an Act", and stated that the Court was barred from ruling on this by Article 212, the Constitutional provision regarding Procedure in the State Legislatures equivalent to Art. 122. This despite a 2007 Constitutional Bench judgment in Raja Ram Pal v. Speaker, Lok Sabha, which had held that proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny...
Art. 212(1) seems to make it 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. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.
One wishes that Their Three Honours in Saeed Siddiqui had at least considered whether or not the proceedings that resulted in the passage of that Uttar Pradesh Lokayukta Act as a Money Bill were "tainted by unconstitutionality" as they prima facie appear to be, especially since they were pretty much obliged to do so by a Five-Judge Bench...
There is surprisingly scarce jurisprudence on Money Bill certification, at least not much more that TDL could find apart from these few cases. There is a little bit more on Art. 122 and Art. 212, but the ratio from all of those largely is that the court will not interfere, hence the paucity of precedent on Art. 110, really. A pity, because theoretically, there really is nothing stopping a Speaker from certifying whatever s/he wants to as a Money Bill, provided the Lok Sabha doesn't get an opportunity to exercise its power under Art. 94(c). Some sort of discussion on this would really be welcome, and one wonders whether it will be carried out soon.
Now, the Aadhaar Act has suffered a veritable plethora of challenges, as tracked by this wonderful service provided by the Software Freedom Law Centre. The Jairam Ramesh petition, we are told, is scheduled for its next hearing on February 13th. Watch this space!
