Beghar Foundation Through Its Secretary and Anr. v. Justice K.S. Puttaswamy (RETD.) and Ors.

ORDER* 1. Permission to file Review Petition(s) is granted. 2. Delay condoned. 3. Prayer for open Court/personal hearing of Review Petition(s) is rejected. 4. The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our o pinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add 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. The review petitions are accordingly dismissed. 5. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected. JUDGMENT DR. DHANANJAYA Y CHANDRACHUD, J. 1. I regret my inability to agree with the decision of the majority in dismissing the present batch of review petitions. 2. This batch of petitions seeks a review of the decision of a Constitution Bench of this Court in Puttaswamy (Aadhaar-5J.) v Union of India1 [“Puttaswamy (Aadhar-5J.”]. Among the issues which arose for decision, the Court had to answer two critical questions: (i) whether the decision of the Speaker of the House of People2 under Article 110(3) of the Constitution, to certify a bill as a ‘Money Bill’ under Article 110(1) * Ed. Note : Order passed by Hon’ble Mr. A. M. Khanw ilkar, HMJ Ashok Bhushan, HMJ Abdul Nazeer, HMJ B. R. Gavai. 1 (2019) 1 SCC 1 2 ‘House of People’ interchangeably referred as ‘Lok Sabha’ 685 is final and binding, or can be subject to judicial review; and (ii) if the decision is subject to judicial review, whether the Aadhaar (T argeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”) had been correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution. 3. On the first question, the majority (speaking through Dr Justice A.K. Sikri) stated that “[j]udicial review [of whether a Bill is a ‘Money Bill’] would be admissible under certain circumstances having regard to the law laid down by this Court ”3. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions were incidental to the ‘core’ of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1). 4. In his concurring opinion, Justice Ashok Bhushan answered the first question by holding that the decision of the Speaker of the House of People under Article 110(1) could be subject to judicial review when it was in breach of a constitutional provision. Drawing a distinction between an irregularity of procedure and a substantive illegality, Justice Ashok Bhushan held: “901. There is a clear difference between the subject “irregularity of procedure” and “substantive illegality”. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilli ng the constitutional condition, the Court will be permitting constitutional provisions to be ignored and bypassed. We, thus, are of the view that decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure and in the event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to judici al review.” However, in answering the second question, Justice Bhushan’s concurring opinion agreed with the majority and held that the Aadhaar Act had been correctly certified by the Speaker of the House of People as a ‘Money Bill’ under Article 110(1). 3 Id at paras 455-464 BEGHAR FOUNDA TION THROUGH ITS SECRETARY v. JUSTICE K.S. PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.] 5. The opinion authored by me, answered the first question by holding that: “1080. The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere ma tter of “procedure” contemplated under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker, if it is contrary to constitutional norms provided under Article 110. The Court, in the exercise of its power of judicial revi ew, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review, if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review under Article 122. It is only limited to an “irregularity of procedure”.” However, on the second question, my decision dissented with the majority and Justice Ashok Bhushan, and held that the decision of the Speaker of the House of People to certify the Aadhaar Act as a ‘Money Bill’ under Article 110(1) was unconstitutional. 6. The issue whether judicial review can be exercised over a decision of the Speaker of the House of People under Article 110(3), arose subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd4 (“Rojer Mathew”) This was in the context of whether some of the provisions of the Finance Act, 2017 (relating to appointments to Tribunals and the conditions of service o f members) could have been certified as a ‘Money Bill’ under Article 110. 7. The judgment delivered by the majority (speaking through Chief Justice Ranjan Gogoi) answered this question by referring to the judgment in Puttaswamy (Aadhaar-5J.) in the following terms: “102. A coordinate Bench of this Court in K.S. Puttasw amy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , was tasked with a similar question of the certification of “Money Bill” accorded to t he Aadhaar (Targeted Delivery of Financial and Other Subsidie s, Benefits and Services) Act, 2016 by the Speaker of Lok Sabha . The majority opinion after noting the important role of the Rajya 4 (2020) 6 SCC 1 687 Sabha in a bicameral legislative set-up, observed that Article 110 being an exceptional provision, must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P ., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] or conclusively pronounce on the scope of jurisdiction or power of this Court to judicially review certificatio n by the Speaker under Article 110(3), yet, it independently reached a conclusion that the impugned enactment fell within the four corners of Article 110(1) and hence was a “Money Bill”. The minority view rendered, however, explicitly overruled both Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] . 103. The majority opinion in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] b y examining whether or not the impugned enactment was in fact a “Money Bill” under Article 110 without explicit ly dealing with whether or not certification of the Speaker i s subject to judicial review, has kept intact the pow er of judicial review under Article 110(3). It was further held therein that the expression “Money Bill” cannot be construe d in a restrictive sense and that the wisdom of the Speaker of Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution. We respectfully endorse the view in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and are in no doubt that Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U. P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] insofar as they put decisions of the Spe aker under Article 110(3) beyond judicial review, cannot be relied upon.” (emphasis supplied) However, the majority opinion noted that the first question was not adequately answered in the above decision in Puttaswamy (Aadhaar- 5J.). It also noted its doubts on the determination of the second question: BEGHAR FOUNDA TION THROUGH ITS SECRETARY v. JUSTICE K.S. PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.] “116. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principl es for interpretation or the repercussions of such process. It is clear t o us that the majority dictum in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] did not substantially discuss the effect of the wor d “only” in Article 110(1) and offers little guidance o n the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Articles 110(1)(a) to (g). Its interpretation of the provis ions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidenta l to Articles 110(1)(a) to (f), it has been argued, is n ot convincingly reasoned, as might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] makes its application difficult to the present case and raises a potential conflict between the judgment s of coordinate Benches. 117. Given the various challenges made to the scope of judici al review and interpretative principles (or lack there of), as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determ ine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J .) v. Union of India, (2019) 1 SCC 1] , we accordingly direct that this batch of matters be placed before the Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.” (emphasis supplied ) 689 As a consequence, the majority opinion held that “[t]he issue and question of Money Bill, as defined under Article 11 0(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is ref erred to a larger Bench ”5. 8. In his partly concurring and partly dissenting opinion, Justice Deepak Gupta agreed with the majority opinion in referring the first question of ‘Money Bill’ to a larger bench thus: “365. I am in total agreement with the Chief Justice inasmuch as he has held that the decision of the Hon’ble Speaker of the House of People under Article 110(3) of the Constitution is not beyond judicial review. I also agree with his views that keeping i n view the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are poss ible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Hon’ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger Bench.” Similarly, another partly concurring and partly dissenting opinion, authored by me, held thus: “346. Though the present judgment [referring to the partly concurring and partly dissenting opinion] analyses the ambit o f the word “only” in Article 110(1) and the interpretation of sub- clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act, 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India t o refer the aspect of Money Bill to a larger Bench and direct accordingly.” 9. Consequently, the correctness of the judgment in Puttaswamy (Aadhaar-5J.), in relation to what constitutes a ‘Money Bill’ under Article 110 of the Constitution, the extent of judicial review over a certification by the Speaker of the House of People and the interpretation which has been placed on the provisions of the Aadhaar Act while holding the 5 Supra at note 3, at para 223.1 BEGHAR FOUNDA TION THROUGH ITS SECRETARY v. JUSTICE K.S. PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.] enactment to be a ‘Money Bill’, are issues which will be resolved by a larger bench, which is yet to be constituted. 10. The present batch of review petitions, in challenging t he correctness of the judgment in Puttaswamy (Aadhaar-5J.), assails the reasoning in the opinion of the majority on whether the Aadhaar Act was a ‘Money Bill’ under Article 110. The details of the review petitions, are summarised below: (i) Review Petition (Civil) Diary No. 45777 of 2018 – This petition was filed on 6 December 2018, and its sub- Ground (e) calls for a review of Puttaswamy (Aadhaar- 5J.) in which the majority opinion upheld the certification of the Aadhaar Act as a ‘Money Bill’, which rests on the erroneous assumption that Section 7 of the Aadhaar Act is its core provision (Grounds XXIII-XXVII). (ii) Review Petition (Civil) No. 3948 of 2018 – This petition was filed on 23 October 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a ‘Money Bill’ within the meaning of Article 110 (Grounds I- VII). (iii) Review Petition (Civil) No. 22 of 2019 – This petition was filed on 15 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the certification of the Aadhaar Act as a ‘Money Bill’, and its consequence on the constitutionality of the enactment (Grounds I-VI). (iv) Review Petition (Civil) No. 31 of 2019 – This petition was filed on 21 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act was correctly certified as a ‘Money Bill’ by the Speaker of the House of People by merely relying on Section 7 of the Aadhaar Act (Grounds GG-II). (v) Diary No. 48326 of 2018 – This petition was filed on 24 December 2018, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding 691 the Aadhaar Act’s certification as a ‘Money Bill’, which eliminated the possibility of discussion before the Raj ya Sabha (Grounds V-W). (vi) Review Petition (Civil) No. 377 of 2019 – This petition was filed on 10 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion holding that the Aadhaar Act could have been certified as a ‘Money Bill’ at the time of its introduction in the Lok Sabha (Ground A). (vii) Review Petition (Civil) No. 924 of 2019 – This petition was filed on 12 January 2019, and seeks a review of Puttaswamy (Aadhaar-5J.) in relation to the majority opinion upholding the Aadhaar Act’s certification as a ‘Money Bill’ in terms of Article 110(1) even though it contained provisions which affected the fundamental rights under Part III of the Constitution (Ground A). 11. The analysis of the majority opinion in Puttaswamy (Aadhaar- 5J.) in relation to the second question, i.e., whether the Aadhaar Act was a ‘Money Bill’ under Article 110 has been doubted by a coordinate bench in Rojer Mathew , when the first question was referred to a larger bench. 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, witho ut the Court having the benefit of the larger bench’s consideration of the very issues which arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification of a Bill as a ‘Money Bill’ by the Speaker of the House of People has been doubted by a co-ordinate Constitution Bench in Rojer Mathew. With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petit ions, it is a constitutional error to hold at this stage that no ground exists to review the judgment. The larger bench’s determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People. The fai lure to re-contextualize the decision of the larger bench with regard to the BEGHAR FOUNDA TION THROUGH ITS SECRETARY v. JUSTICE K.S. PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.] Aadhaar Act being a ‘Money Bill’ under Article 110(1) will render it a mere academic exercise. 12. 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. In the present case, the above-m entioned review petitions had all been filed before the judgment in Rojer Mathew was delivered on 13 November 2019. The review petitions were pending on the date when a reference was made to a larger bench in Rojer Mathew.These review petitions were previously listed before a fi ve- judge bench headed by Justice Arun Mishra on 25 August 2020, and were not disposed of. Hence, these review petitions have continued to remain pending until now, and there is a strong reason for us not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above. 13. In Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v Indian Young Lawyers Assn.6, a nine-judge bench of this Court had to determine whether a reference could be made to a larger bench in a pending review petition. Answering this in the affirmat ive, the Court held that it need not admit the review petitions before refe rring the question to a larger bench. Further, the court noted that such a question could also be a pure question of law. In explaining the power o f this Court to review its own judgments, Chief Justice S A Bobde, speaking for the Bench, held thus: “29. Order LV Rule 6 makes it crystal clear that the in herent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S. Nagaraj v. State of Karnataka [S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320] , it was observed that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its orders, the courts culled out such powe r to avoid abuse of process or miscarriage of justice. It was further held that this Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. The logical extension to the above is that reference of questions of law can be made in any pending proceeding before 6 (2020) 9 SCC 121 693 this Court, including the instant review proceedings, to meet the ends of justice.” 14. 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 als o for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger B ench. Ankit Gyan Petitions dismissed. BEGHAR FOUNDA TION THROUGH ITS SECRETARY v. JUSTICE K.S. PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.]