Aadhar Legal Debate- Part 2

Context

There is a huge debate going on in the political environment in India on the Aadhar and apparent concerns with its implementation, especially with opposition parties walking out of the Parliamentary discussions because of the adamant stance of the government making Aadhar mandatory for several schemes despite a Supreme Court judgement that Aadhar is purely voluntary and not mandatory.

In the part 1 of this debate, we discussed about the merits and privacy concerns of the Aadhar, in this part let us look at the other debate which is on the process subversion used to pass the Aadhar Bill under the garb of a money bill.

What is a Money Bill?

• A Bill usually becomes a law once it has been passed by both Houses – Lok Sabha and Rajya Sabha – and the President assents to it. `Money bills’ are an exception.
• A bill certified as a ‘money bill’ by the speaker of the Lok Sabha can be enacted into a law by the Lok Sabha alone, without any approval from the Rajya Sabha.
• Rajya Sabha’s approval is not necessary although it can recommend amendments to a money bill.
• The Aadhar Act, 2016 was enacted using this route. After being passed by the Lok Sabha, the Lok Sabha speaker certified the Aadhar Bill as a ‘money bill’. Accordingly, amendments suggested by Rajya Sabha were not considered and the bill was enacted into law.

Constitutional Provisions of Money Bill

Article 110(1) of the Constitution identifies a bill as a money bill if it contains “only” provisions dealing with the following matters, or that incidental to them:

1. imposition and regulation of any tax,
2. financial obligations undertaken by Indian Government,
3. payment into or withdrawal from the Consolidated Fund of India (CFI) or Contingent Fund of India,
4. appropriation of money and expenditure charged on the CFI or receipt’;
5. Custody, issue or audit of money into CFI or public account of India.

Does Aadhar Act contravene with the provisions of Money Bill?

You can read the original Bill here.

• A careful analysis of Article 110 and of the Bill reveals that the Bill was tightly drafted in order to try to make it a money bill.
• The draft clarifies that this subsidy, benefit or service will be withdrawn only from the Consolidated Fund of India (CFI). This brings it within the purview of Article 110(1)(c) [withdrawal of money from CFI] or Article 110(1)(d) [appropriation of money out of the CFI]
• Under Article 110(1)(g), a money bill could comprise of provisions dealing `only’ with matters incidental to clauses mentioned above. Since most of Aadhar Bill provides for a mechanism to transfer subsidy, benefit or service from the CFI, it can be argued that this is `incidental’ to withdrawal or appropriation of money from the CFI, which justifies a money bill.
• But, an area where the Bill may have ventured beyond the scope of a money bill is disclosure of information in the interest of national security. It could reasonably be argued that disclosure of information for national security is neither covered specifically, nor is it `incidental’ to the objective of targeted delivery of subsidies, benefits or services from CFI.
• As the Aadhaar Act was introduced in the Lok Sabha as a money bill even though it does not meet the necessary criteria for such a classification, this treatment of the bill may be considered as an instance of procedural irregularity.

 Can the Speaker’s final authority whether a bill is a money bill or not be subjected to Judicial Review?

• The Supreme Court has to first decide if it can question the speaker’s “final” decision to certify Aadhar Bill as a ‘money bill’.
• The Supreme Court has in three earlier decisions refrained from questioning the speaker’s decision.
  • Mangalore Ganesh Beedi Works v. State of Mysore (1962),
  • Saeed Siddiqui v. State of UP (2014)
  • Yogendra Kumar Jaiswal v. State of Bihar (2015).
• In these cases as per these judgments, the speaker can certify each and every bill to be a ‘money bill’ capable of being enacted by Lok Sabha alone, rendering the Rajya Sabha and the bicameral legislative system redundant. And the Supreme Court cannot question the speaker’s decision since it is “final”.
• If we are to consider this as a procedural irregularity, the Supreme Court’s power of judicial review comes up against Article 122 – which states that the validity of any proceeding in the parliament can (only) be called into question on the grounds of procedural irregularities.
• Raja Ram Pal vs Hon’ble Speaker, Lok Sabha and Others (2007), the court evaluated the scope of judicial review and observed that although parliament is supreme, unlike Britain, proceedings which are found to suffer from substantive illegality or unconstitutionality, cannot be held protected from judicial scrutiny by article 122.
• In another case deciding upon the scope for judicial intervention in respect of exercise of final authority by the speaker, in Kihoto Hollohan vs Zachillhu & Ors. (1992), the Supreme Court held that though the speaker of the house holds a pivotal position in a parliamentary democracy, the decision of the speaker (while adjudicating on disputed disqualification) is subject to judicial review that may look into the correctness of the decision.
• Although the Indian Constitution grants conclusivity to the speaker’s decision, it does not explicitly bar judicial review.
• Indian Constitution does not mention that the speaker’s decision “shall be conclusive for all purposes” and “shall not be questioned in any court of law”. So Supreme Court may take the cognisance of the petition filed by Mr Jairam Ramesh

Concluding Remarks

• As the provisions of the Aadhaar Act have far reaching implications for the fundamental and constitutional rights of Indian citizens, the Supreme Court should look into the matter of its identification and treatment as a money bill and whether such decisions lead to the thwarting of legislative and procedural justice.
• Aadhaar Act reveals a structural concern regarding this classification process, which may have substantial implications in terms of undermining public and parliamentary deliberative processes.
• Apart from deciding upon the legality of the nature of the bill, it is vital that the apex court ask the government to categorically respond to the concerns red-flagged by the Standing Committee on Finance,
  • access and misuse of personal information, surveillance,
  • profiling, prohibiting other data bases from storing Aadhar numbers;
  • and securing confidentiality of information which is in the registrars

• Further, the repeated violation of the Supreme Court’s interim orders – in contexts ranging from midday meal schemes to the IT returns should also be addressed.

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Questions

1. What are the substantial fallouts of the Aadhaar Act?
2. Can Speaker’s authority on the classification of bills in Lok Sabha be challenged in courts?

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