Introduction
Not long ago, former CJI DY Chandrachud talked about hearing the ‘Money Bill’ issue, which challenges the Money Bill route taken by the Centre to pass contentious amendments in the Parliament. Even after the new CJI has taken charge of the roster, the issue of the Money Bill has not been delved into as of late. The matter has been pending since 2019 when a five-judge Bench in Rojer Mathew v. South Indian Bank Ltd. referred the Money Bill question to a seven-judge Bench. This leads us to rewind a decade and examine how the issue of the Money Bill came to be. This article first elaborates on the context of the issue, thereafter explores the various constitutional issues at hand, and concludes with suggestions.
Establishing The Context: Money Bill & Its Evolution
A Money Bill includes provisions related to any or incidental financial matters outlined in Article 110(1). The Speaker of Lok Sabha certifies a bill as a Money Bill, and in case of any dispute, his decision is deemed final. This special procedure of passing a Money Bill diminishes the role of the Rajya Sabha by exclusively allowing its introduction only in the Lok Sabha and making the Rajya Sabha’s recommendations non-binding.
The issue of whether the Speaker’s certification of a ‘Money Bill’ is subject to judicial review has repeatedly emerged over the years. Initially, the Supreme Court (“SC”) in Mohd. Saeed Siddiqui and Yogendra Kumar Jaiswal consistently held that Article 110(3) expressly prohibited judicial scrutiny of the Speaker’s certification.
The trend took a turn in Puttaswamy (Aadhaar-5), where a five-judge bench reviewed the Speaker’s certification of the Aadhaar Act, 2016 as a Money Bill. The majority, while acknowledging the Rajya Sabha’s significant role in a bicameral legislature, emphasised that Article 110, being an exception, must be interpreted narrowly. However, the bench did not assess the validity of the rulings in Siddiqui and Jaiswal, nor did it conclusively pronounce the power of the SC to judicially review the Speaker’s certification. Despite this, it fallaciously concluded that the Aadhaar Act was correctly classified as a Money Bill as it had a “substantial nexus with the appropriation of funds from the Consolidated Fund of India”.
Amidst the ambiguity, the issue resurfaced in Rojer Mathew, where a five-judge bench held the Speaker’s certification to be within the scope of judicial review while scrutinising the Finance Act, 2017. However, Justice Deepak Gupta opined that the Speaker’s view must take precedence and referred the matter to a larger bench. Being a Bench of co-equal strength as that in Puttaswamy (Aadhaar-5), the matter was placed before the CJI for consideration by a larger Bench. This bench, though constituted, is yet to hear this matter, bringing us back to square one.
Meanwhile, in Beghar Foundation, the review petitions challenging the decision of the bench in Puttaswamy (Aadhaar-5) were filed. However, the SC refused to review its 2018 judgment. It was Justice Chandrachud who delivered the dissenting opinion in both K.S. Puttaswamy (Aadhaar-5) and Beghar Foundation.
Passing Off Or Passing On?: Analysing The Dissent Of Justice DY Chandrachud
A myriad of legislations, such as the Aadhaar Act, amendments to the Prevention of Money Laundering Act and Foreign Contribution Regulation Act, as well as the Finance Act, have been incorrectly classified and passed off as Money Bills to bypass the much-needed scrutiny of the Rajya Sabha.
In the Aadhaar case, the lone dissenting opinion was delivered by Justice Chandrachud, who struck down the law for following the Money Bill route, calling it a ‘fraud’ on the Constitution for “superseding the authority of the Rajya Sabha”. He observed, “As a subset of the constitutional principle of division of power, bicameralism is mainly a safeguard against the abuse of the constitutional and political process.” The Constitution assigns a limited role to the Rajya Sabha in cases of Money Bills, deviating from the important role assigned to it in cases of Ordinary Bills, which mandate the assent of both Houses.
Justice Chandrachud pointed out that the Review Bench ought to wait till the seven-judge bench decides the larger questions on the Money Bill in the Rojer Mathew reference. The minority view rendered by him, however, explicitly overruled both Md. Siddiqui and Yogendra Kumar Jaiswal.
Can There Be An Absolute Bar On Judicial Review?
The dissent discusses the history of ‘constitutional skirmishes’ leading to the exclusion and limited role assigned to the UK’s House of Lords in cases of Money Bills. The Parliament Act of 1911 stated that the Speaker’s decision “shall be conclusive for all purposes, and shall not be questioned in any court of law”, thereby explicitly providing it immunity from judicial review. However, our constitution, instead of using the same verbatim, consciously states that the Speaker’s certification “shall be final” and nowhere regards it as immune from judicial review. The constitutional foundation of the Speaker’s certification is to prevent any controversy “about the matter outside the Lower House”, i.e., with regards to the status of the Money bill in the Rajya Sabha and before the President.
Given that judicial review forms part of the Basic Structure, the Speaker’s certification of a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles. Kihoto Hollohan v. Zachillhu held that the concept of statutory finality embodied in the Tenth Schedule does not abrogate judicial review based on violations of constitutional mandates and non-compliance with the Rules of Natural Justice.
This stance has also been highlighted in Jyoti Prakash Mitter and Tulsiram Patel & Ors., which stands as authority against the acceptability of the argument that the word “final” occurring in Articles 217(3) and 311(3) bars judicial review of courts.
Questioning The Bar Provided By Article 122
Article 122 prohibits courts from examining the validity of any proceedings in Parliament on the ground that there was “any alleged irregularity of procedure”. When it comes to whether the Speaker’s certification is protected by Article 122, it must be noted that the expression “procedure” refers to “Rules of procedure” as indicated in Article 118, which must be distinguished from substantive constitutional requirements. The obligation placed on the Speaker to certify a Money Bill is not a mere matter of “procedure” but a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110.
In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, the court reaffirmed the distinction between a “procedural irregularity” and an “illegality”. It held that courts are not prohibited from exercising their power of judicial review to examine any illegality or unconstitutionality in the procedure of Parliament by stating, “it is plain and clear that prohibition against examination on the touchstone of “irregularity of procedure” does not make taboo judicial review on findings of illegality or unconstitutionality”.
Procedural irregularity refers to deviations from internal legislative procedures or rules (such as Conduct of Business Rules, Procedures for debate and discussion, et al.), whereas illegality refers to a violation of a constitutional mandate or requirement. The certification by the Speaker is a “substantive determination” based on the solid evidence of the bill falling in the six exhaustive areas mentioned in Article 110(1) (a constitutional mandate), and if it fails to do so, it translates to “illegality”.
More recently, in Sunil Kumar Singh v. Bihar Legislative Council, the court, with respect to Article 212 (corresponding to Article 122 for the States), demarked the line between “legislative decisions” and “proceedings in the Legislature”. It held that there is no absolute bar on judicial review of “legislative decisions”. Applying this mutatis mutandis, Article 122 does not put a bar on the judicial review of the Speaker’s certification by virtue of the fact that it is a “legislative decision”.
The Way Forward
The Speaker’s certification of Money Bills, though deemed “final”, cannot be insulated from judicial scrutiny, particularly when it subverts constitutional principles like bicameralism and the rule of law. Justice Chandrachud’s dissent rightly identifies this misuse as a constitutional fraud, one that undermines the Rajya Sabha’s role and bypasses democratic deliberation. Contrary to the British version, India’s constitutional text and structure do not grant the Speaker absolute immunity. Judicial review, being part of the Basic Structure, extends to testing the Speaker’s determination against the substantive criteria of Article 110. Precedents like Raja Ram Pal and Kihoto Hollohan affirm that finality does not equate to infallibility.
If history is observed closely, it reveals that dissenting opinions tend to become majority opinions in the future. If history were to repeat itself, the bar on judicial review of Money Bills would be seen as a British relic by the larger bench and done away with, allowing the Speaker’s certification to be tested on the touchstone of the Constitution. However, this question begs a penny for your thoughts.
Supriya Raghuvansh is a 2nd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.
[Ed Note:– This piece is edited by Divyansh Nautiyal and Published by Baibhav Mishra from LAOT blog.]
