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I. WHETHER THE JUDICIARY HAS POWER TO REVIEW THE DECISION OF

SPEAKER’S CERTIFICATE OF MONEY BILL OR NOT.

1. It is humbly submitted before the Hon’ble court that the SC has power to review the
decision of speaker on certificate of money bill as [1.1] Indian Constitution does not
explicitly bar judicial review, [1.2] "Final" decisions have been questioned by Supreme
Court, [1.3] SC has power of judicial review in case of ‘procedural illegality’ and [1.4]
judicial review of the Speaker’s certificate is not excluded by Article 122(1)

1.1 Indian Constitution does not explicitly bar judicial review.

It is humbly submitted that Article 110(3) of the Constitution of India was inspired by Article
22 of the Constitution of Ireland, 1937 and §3 of the 1911 Act. Article 22 of the Constitution
of Ireland, 1937 states:

“The Chairman of Dail Eireann shall certify any Bill which, in his opinion, is a ‘money bill’
to be a Money Bill, and his certificate shall, subject to the subsequent provisions of this
section, be final and conclusive.”

Further the subsequent provisions of Article 22 lay down a dispute resolution mechanism, In
contrast, the Constitution of India does not provide for any special dispute resolution
mechanism. In absence of any such special constitutional procedure for dispute resolution,
excluding judicial review of the Speaker’s certificate would amount to an arbitrary and
unreasonable interpretation of the text of the Constitution of India.

Furthermore, the Indian Constitution adopted the concept of money bills from the British
Parliament Act, 1911, with crucial modifications. The 1911 Act defines 'money bill' and lays
down a procedure for them. Section 1(2) defines a bill to be a money bill which 'in the opinion
of the Speaker of the House of Commons' contains only specific provisions. Article 110(1) of

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the Indian Constitution defines a bill to be a money bill 'if it contains only' specific provisions.
Effectively, in Britain the determination of whether a bill is a money bill is left to the subjective
'opinion' of the British speaker. In contrast, the definition of 'money bill' under the Indian
constitution is not left to the subjective opinion of the Indian speaker. The Indian speaker's
decision has to be based on the definition provided in the Constitution.
The 1911 Act mandates the British speaker to endorse his opinion on money bills, on a
certificate. Section 3 gives absolute legal conclusivity to the certificate of the speaker. It reads:

“Any certificate of the Speaker of the House of Commons given under this Act shall be
conclusive for all purposes, and shall not be questioned in any court of law.”

Article 110(3) of the Indian Constitution also grants 'finality' to the Indian speaker's decision.
It reads:

“If any question arises whether a bill is a Money Bill or not, the decision of the Speaker of
the House of People thereon shall be final.”

Unlike the 1911 Act, the 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".
Therefore, although the Indian Constitution grants conclusivity to the speaker's decision, it
does not explicitly bar judicial review. It is contended that the Constituent Assembly intended
for the "final" status given to the speaker's certificate, to be applicable only inside the
Parliament - including the Rajya Sabha and the President.

1.2 "Final" decisions have been questioned by Supreme Court.

It is contended that in the crucial judgment of Raja Ram Pal vs Hon’ble Speaker, Lok Sabha
and Others (2007)1, the hon’ble court evaluated the scope of judicial review and observed that

1
WP (C) No. 129/2006.

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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, as opposed to mere irregularity.

Further the Hon’ble 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.

Furthermore, Decisions of various authorities have been given "final" status under the Indian
Constitution. Yet the Supreme Court has on multiple occasion’s exercised judicial review over
such decisions. For instance, in Kihoto Hollohan vs Zachillhu2, the "final" decision of the
Speaker regarding disqualification of members of the House under Tenth Schedule of the
Indian Constitution, has been held to be a judicial decision subject to judicial review. This
suggests that the “final” status given by the Indian constitution does not automatically immune
the Indian Speaker's decision or certificate from judicial review.

1.3 SC has power of judicial review in case of ‘procedural illegality’.

It is humbly submitted before Hon’ble court that the article 122 of the Constitution prohibits
the courts from questioning parliamentary proceedings on the ground of 'procedural
irregularity'. It is contended that 'procedural irregularity' refers to violation of procedures in
rules made by each House under Article 118 or in any law made by the Houses under Article
119. Violation of a constitutional procedure is not mere 'procedural irregularity'. This
distinction was highlighted by a seven judge bench of the Supreme Court in Special Reference
No. 1 of 1964. The Court held:

“Article 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

2
AIR 1993 SC 412.

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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.”

1.4 Judicial review of the Speaker’s certificate is not excluded by Article 122(1).

It is humbly submitted that the judicial review of the Speaker’s certificate is not excluded by
Article 122(1) either. Article 122(1) of the Constitution of India protects "proceedings in
Parliament"3 from being "called into question on the ground of any alleged irregularity of
procedure."4

It is further contended that Articles 118 to 122 have been clubbed under the heading ‘Procedure
Generally’. Article 118(1) empowers each House of the Parliament to make rules for regulating
“its procedure and conduct of its business” subject to the provisions of the Constitution5. Article
119 empowers Parliament to enact laws to regulate the ‘procedure’ in Parliament in relation to
financial business. Such law overrides any rule made under Article 118. In this context, Article
122(1) prohibits judicial review of "irregularity of procedure." Here ‘procedure’ refers only to
procedure in rules made under Article 118 or in a law under Article 119.

Therefore it is contended that the phrase "irregularity of procedure" in Article 122 does not cover
constitutional procedure. And, the protection from judicial review granted by Article 122 cannot

3
Article 122(1) in The Constitution:

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged
irregularity of procedure

4
Ibid

5
Article 118(1) in The Constitution Of India:

(1) Each House of Parliament may make rules for regulations, subject to the provisions of this Constitution, its
procedure and the conduct of its business

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be stretched to protect noncompliance or breach of a constitutional procedure like the special

procedure for money bills under Articles 109 and 110.

II. WHETHER THE CITATION OF FINANCIAL BILL, 2017 AS MONEY BILL IS

CONSTITUTIONAL OR NOT.

It is humbly submitted before Hon’ble SC that citation of ‘financial bill, 2017’ as money bill is
unconstitutional as [2.1] there are substantive procedural illegality in the passing of bill. [2.2] their
is colourable exercise of legislative powers in adopting the special procedure prescribed under
Article 109

2.1There are substantive procedural illegality in the passing of bill.

It humbly submitted that The PART XIV of the Finance Act is primarily concerned with
appointment, selection, eligibility and other service conditions of Members of Scheduled
Tribunals. These subjects are purely in the realm of (a) administration of justice; (b) jurisdiction
and powers of courts; and (c) access to justice; and in pith and substance pertain to Articles 323A
and 323B, Entry 95 of List I and Entries 11A and 46 of List III. The dominant effect of the
impugned provisions is far from being a fiscal measure. It is entirely disingenuous to consider the
provisions affecting administration of tribunals as a pure fiscal measure, or enacted purely on
financial considerations.

A Money Bill is defined in Article 110 of the Constitution as one which only contains provisions
related to taxation, borrowings by the government, or expenditure from Consolidated Fund of
India. Mere incidental burden on the Consolidated Fund is insufficient to qualify proposed
legislation as a ‘Money Bill’. PART XIV of the Finance Act, on the other hand, has repealed and
replaced substantive provisions under the Scheduled Acts dealing with administration of
Tribunals.

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To abuse of ordinance making power, which has been deprecated by this Hon’ble Court in Krishna
Kumar Singh v. State of Bihar (2017) 3 SCC 1 as a fraud on the Constitution. Likewise, the
deliberate use of special procedure under Article 109 read with 110, either to circumvent the
approval of Upper House or otherwise, is a fraud on the Constitution and an affront to supremacy
of the Constitution.

B. DILUTION OF SEPARATION OF POWERS

The efficacy and independence of judicial tribunals has been recognized by Hon’ble SC as an
inviolable part of basic features of the Constitution. The eligibility criteria, selection process and
service conditions of members of Tribunal is determinative of its independence and for impartial
and effective discharge of judicial functions.

Moreover, Clause (1) of Article 323B imposes an obligation on the Parliament to frame a law in
respect of creation of tribunals for adjudication of disputes specified in Clause (2). Furthermore,
the Sub-clause (f) under Clause (3) of Article 323B requires such law to provide for supplemental,
incidental and consequential measures necessary for the effective functioning, speedy disposal
and enforcement of orders. The Article 323B, therefore, casts a positive duty on the Parliament to
administer tribunals through a law, and by no other means.

It is submitted that the Finance Act and the Tribunal Rules seriously affects the stature, efficacy
and independence of the Tribunals. As noted previously, the Parliament has failed to laid precise
parameters for framing rules on eligibility, selection and other service conditions. Resultantly, the
Impugned Rules are not only arbitrary, irrational and vague, but also lack inter se uniformity
various Scheduled Tribunals without valid justification.Some of the glaring violations are
enumerated below:

It was further added that only a High Powered Committee headed by the siting judge of this
hon’ble HC should be entrusted with selection and appointment of Chairperson and other
Members of the Tribunal. [See also S.P. Sampath Kumar v. Union of India & Others (1987) Supp.
SCC 734]

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Thereafter, a Seven Bench of this L. Chandra Kumar (supra)declared Articles 323A(2)(d)

and 323B(3)(d) as unconstitutional, inasmuch as the exclusion of judicial review of under
Articles 32, 226 and 227 were held to be inalienable and inviolable part of basic structure.
Besides this, and most significantly, upheld the dictum in Sampath Kumar (supra) and
expressed grave concern over the lack of uniformity and coherent policy in administering of
Tribunals. In pertinent part stated that:

Thirteen years later, the above concerns and directions were reiterated in Union of India v. R.
Gandhi, (2010) 11 SCC 1, while examining the constitutional validity of the National Company
Law Tribunal ( NCLT ) established under the erstwhile Companies Act, 1957. More importantly,
the Constitution Bench distilled various facets of a Tribunal necessary for just and fair
dispensation of justice.While reiterating the necessity for independence of judicial tribunals, the
court held that the members of the tribunal should have the independence and security of
tenure associated with judicial tribunals Apart from functional selection in ensuring unbiased
adjudication. To this end, this Selection Committee which comprised of In unambiguous terms,
th parameters for ensuring judicial independence of Tribunals, of which the following are of
extreme relevance:

Once again, in Madras Bar Association v. Union of India & Others (2014) 11 SCC 1 struck down
the National Tax Tribunal Act, 2005 interalia for failure to ensure adequate safeguards for
ensuring judicial independence of their functionaries. In particular, the L. Chandra Kumar
(supra)pertaining to the composition of the Selection Committee.

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