The Supreme Court in a 4:1 majority dismissed a review plea challenging the constitutionality of passing the Aadhar Act as a Money Bill. The January 11 decision came on a plea challenging the 2018 KS Puttaswamy verdict on the limited point of categorising of the Aadhar Act as a Money Bill.
However, it is significant to point out that the challenge to a Speaker's decision to pass a bill as a Money Bill is still pending adjudication by a bench of at least seven judges. Hence, questions on the constitutionality of passing the Aadhar Act is also alive.
The January 11 verdict–the judgment was made public today–was delivered in chambers by a five-judge bench comprising Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan, S Abdul Nazeer and BR Gavai. Justice Chandrachud dissented.
On September 26, 2018, a five-judge constitution bench had in a 4:1 majority upheld the constitutionality of the Aadhar Act, 2017. Seven pleas had challenged the majority's opinion in upholding the Aadhaar Act's certification as a 'Money Bill' which eliminated the possibility of discussion before the Rajya Sabha.
Justices Khanwilkar, Bhushan and Chandrachud were part of the bench in the 2018 verdict also. Then, like now, Justice Chandrachud was the sole dissenter.
A review plea is a challenge to a final judgment passed by the Supreme Court. These pleas are heard in chambers. If the plea is allowed, then a larger bench (than the bench which delivered the verdict) will hear arguments in open court on why the top court verdict is wrong.
Issue on the passage of Aadhar Act as Money Bill already in doubt: Justice Chandrachud
Justice Chandrachud argued that the issue on whether a Speaker's decision to pass a bill as a Money Bill is subject to judicial review has already been raised in the 2019 Rojer Mathew case. The question of whether the Aadhaar Act was a 'Money Bill' under Article 110 is also under the lens by a coordinate bench (a bench of the same strength) and has been referred to a larger bench (a bench comprising of at least seven judges) and that issue is still pending.
"The larger bench has not been constituted and is yet to make a determination. Dismissing the present batch of review petitions at this stage – a course of action adopted by the majority – would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench's consideration of the very issues which arise before us," Justice Chandrachud argued. "With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment," he added.
"If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar 5J.), it would have serious consequences – not just for judicial discipline, but also for the ends of justice," he added.
"The failure to re-contextualise the decision of the larger bench with regard to the Act being a 'Money Bill' under Article 110(1) will render it a mere academic exercise," the 20-page judgment read. "It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently," it added.
Referring to the majority opinion in this verdict that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review, Justice Chandrachud pointed out that this has already been done in the Sabarimala review plea.
When the 2018 Sabarimala verdict—delivered by a five-judge constitution bench—allowing women of all ages to worship in the sanctum sanctorum of celibate deity Lord Ayappa was challenged, a nine-judge bench ruled that a reference could be made to a larger bench in a pending review petition. "…the Court held that it need not admit the review petitions before referring the question to a larger bench," the dissenting opinion read.
Is the Speaker's decision to pass a bill as a Money Bill subject to judicial review?
In November 2019, the constitutional validity of the Finance Act 2017 being passed as a Money Bill, more specifically the Speaker's decision to certify a bill as a money bill was referred to a larger bench.
The larger bench (minimum bench strength of seven judges) will also re-examine its 2018 decision approving the passage of the Aadhar Act by way of the Money Bill. Hence, despite the 4:1 majority decision against the review of KS Puttaswamy verdict, the issue is still alive.
This issue is crucial since it will reopen debates on the constitutionality of the Aadhar Act, rules in the Finance Act 2017 which decide the functioning of the tribunals along with amendments made to Foreign Contribution Regulation Act, 2010, and the Reserve Bank of India Act,1934.
"The decision in the Adhaar Review case cannot have an overbearing impact either positively or negatively on the arguments before the larger bench which decides the validity of Finance Act, 2017, as a Money Bill. It just settles the law in so far as the Adhaar Act is concerned and the Court decides not to interfere with the judgment even though the law relating to the passing of Money Bill has had a significant change after the passing of the Adhaar judgement in 2018. This could be partly due to the settled principle of minimum interference in a Review Petition and I wish to see it only as a "non-interference" judgement and not as a "laying down the law" judgement," Advocate Sriram Parakkat said.