By: Anirudh Agrawal & Aditya Rai* |
Introduction
In Rojer Mathew v South Indian Bank Ltd (2019), the Supreme Court's Constitution Bench, in a judgement delivered on 13 November 2019, declared the Tribunal, Appellate Tribunal, and Other Authorities (Qualifications, Experience, and Other Conditions of Service of Members) Rules, 2017 (the "tribunal rules") unconstitutional.
This is not the first time the Supreme Court has invalidated an entire statute relating to tribunals. On similar grounds, the Supreme Court invalidated the National Tax Tribunal Act, 2005 in 2015 (Madras Bar Association v Union of India 2015). Government efforts to tribunalize the judiciary and bring it under executive control have been the subject of protracted and bitter litigation (Ghosh et al 2018), and the Rojer Mathew case adds another chapter to that.
However, this Blog discusses the Rojer Mathew case in light of a far more significant Supreme Court decision: the interpretation of Article 110(3) of the Constitution, more precisely, what constitutes a "money bill" for the purposes of Article 110(1)—which defines a bill as a "Money Bill" "if it contains only provisions" relating to the six specified areas and ancillary subjects. This particular issue arose in this case because the union government issued the tribunal rules pursuant to its authority under Section 118 of the Finance Act, 2017, which was passed as a money bill. The petitioners contended that a law governing the merger of tribunals, the appointment, and removal of members, as well as their terms and conditions of service, could not possibly be a "money bill" in any sense of the term, and thus could not be passed as one simply because the remainder of the Finance Act, 2017 is concerned with taxation.
This column will argue that the Court correctly recognised the petitioners' concerns and that their interpretation of the word "only" in Article 110(1) has grave implications for the future of the Rajya Sabha and Indian federalism.
Analyzing the Puttaswamy Decision
The petitioners in the Rojer Mathew case challenged the tribunal rules' legality on a variety of grounds, including the fact that they were made under Part XIV of the Finance Act, 2017 which dealt with, among other things:
“First, abolition and merger of existing Tribunals; second, uniformising and delegating to the Central Government through the Rules the power to lay down qualifications; method of appointment and removal, and terms and conditions of service of Presiding Officers and members; and third, termination of services and payment of compensation to presiding officers and members of certain tribunals that have now become de-funct. (Rojer Mathew v South Indian Bank Ltd 2019: para 112, p 52)”
Such provisions, the petitioners contended, could not possibly be included in a money bill, and thus the Finance Act, 2017 must be struck down insofar as it relates to tribunals. The union government responded by asserting that it was validly passed as a money bill pursuant to Article 122 (which precludes judicial review of the Lok Sabha speaker's actions) and the Supreme Court's Constitution Bench decision in K S Puttaswamy v Union of India (2019).
The Supreme Court rejected the union's argument immediately, citing Article 122(1) and two prior decisions in Yogendra Kumar Jaiswal v State of Bihar (2016) and Mohd Saeed Siddiqui v State of Uttar Pradesh (2014), which held that judicial review of a speaker certifying a money bill was unconstitutional. Apart from the Puttaswamy judgement, the Court relied on Constitution Bench decisions in Kihoto Hollohan v Zachilhu (1992) and Raja Ram Pal v Lok Sabha (2007) to reject the notion that once a speaker certifies a money bill as such, it cannot be examined in court.
However, the Court determined that the Puttaswamy case's judgement was less clear on the definition of a money bill. While Justices D Y Chandrachud and Ashok Bhushan's dissenting opinions in the Puttaswamy case made clear findings regarding whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016 ("Aadhaar Act") is a money bill or not, the majority judgement signed by the other three judges did not. While the judges upheld the Aadhaar Act as having been passed as a money bill, they did not explain why they believe it was. Whereas Justice Bhushan maintains that the act's "pitch and substance" qualify it as a money bill. Justice Chandrachud takes a much narrower interpretation of the word "only" in Article 110(1), arguing that The Aadhaar Act bears little resemblance to a money bill. However, the majority in the Puttaswamy judgement makes no test, establishes no principle, and provides no discernible reason for concluding that the Aadhaar Act was validly enacted as a money bill (Kumar 2018).
The majority judgement in the Puttaswamy case makes reference to this gap in the reasoning of the majority judgement in the Rojer Mathew case. It notes that the said judgement completely avoided the central issue in the interpretation of Article 110(1)—the interpretation of the word "only" (Rojer Mathew v South Indian Bank Ltd 2019: para 122, p 58). The bench is also aware that the determination of what constitutes a money bill may have implications for the Aadhaar Act itself and, as a coordinate bench, has referred the matter to a seven-judge bench.
The majority's approach is more than welcome in this case, as it has correctly highlighted the shoddy reasoning in the Puttaswamy case (Datar and Unnikrishnan 2018). While one may disagree with the constitutional validity of various provisions of the Act, it cannot be disputed that the majority in the Puttaswamy case addressed such a critical constitutional question that goes to the heart of the Aadhaar Act's existence in a hasty and unsatisfactory manner. Needless to say, one can only hope that the seven-judge bench is quickly convened to interpret the proper scope and meaning of Article 110(1) of the Constitution, and, more precisely, the import of the word "only."
Why It Is Important?
To the untrained eye, a seven-judge bench tasked with interpreting the meaning of the word "only" may appear excessive. After all, the term is widely used among English speakers worldwide and has a limited number of possible interpretations.
However, when it comes to constitutional and statutory interpretation, the situation is rarely that simple. Consider the case of Jindal Stainless v. State of Haryana (2017), in which a nine-judge bench agonised over the meaning of the word "and" in Article 304 of the Constitution in relation to entry taxes. They were not engaged in an arcane form of hair-splitting but were determining the scope of the state's constitutional authority to pass laws. Reading the word “and” as a separating clause (a) and (b) of Article 304 would further restrict a state's legislative authority. However, if that is read as connecting the two, it would subject the state taxing authority to union control. Keeping in mind the principle of federalism, the Supreme Court held by a vote of six to three that the word "and" in Article 304 had to be interpreted as conjunctive, allowing state governments greater flexibility in imposing taxes on goods imported from other states.
The majority opinion in the Rojer Mathew case acknowledges the difficulty inherent in tying the term "only" to a specific definition. Any interpretation must strike a balance between the two competing objectives of preserving the Lok Sabha's supremacy as the popularly elected body and avoiding rendering the Rajya Sabha virtually irrelevant for legislative purposes. In contrast to the House of Lords, on which it is largely modelled, the Rajya Sabha represents the interests of the Indian states and is an elected body. That it does not always do so may have something to do with political party dynamics and the Supreme Court's contentious decision in Kuldip Nayar v Union of India (2006). (Kumar 2018). Nonetheless, its fundamental function as a deliberative body that serves as a constitutional check on the Lok Sabha cannot be overlooked entirely. The Constituent Assembly debated extensively for the need of a second legislative chamber in both the federal and state legislatures. Despite some unsatisfactory experiences under the Government of India Act, 1935, where progressive legislation was blocked in the Provinces by such second chambers, it was decided to retain them. As explained by member L Krishnaswami Bharathiar, it is to check or prevent hasty legislation and not at all to impede progressive legislation. There shall be no mistake about it; the idea is not to check progressive legislation but to have some time so that cool, calm, and deliberate conclusions may be arrived at.
Conclusion
By finally certifying the incorrectness of the Jaiswal and Siddiqui judgments and recognising the Puttaswamy judgment's lack of coherence, the Constitution Bench in the Rojer Mathew case has put the Court on the right track in interpreting Article 110 (1) of the Constitution. One can only hope that the incoming Chief Justice of India quickly appoints the seven-judge bench, given the gravity of the issue. Given that review petitions challenging the Puttaswamy judgment's correctness are still pending in the Supreme Court, any decision by the seven-judge bench will have an impact on the Aadhaar Act's validity. Similarly, if not more so, the seven-judge bench's interpretation of the term "only" may determine the fate of the Rajya Sabha as we know it.
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*The authors are students at Hidayatullah National Law University, Raipur.
