BEGHAR FOUNDATION THROUGH ITS SECRETARY AND ANR. versus JUSTICE K.S. PUTTASWAMY (RETD.) AND ORS. on 11 January 2021

1. In opinion of this Court, no case for review of judgmentand order dated 26.09.2018 is made out. This Court hastens toadd that change in the law or subsequent decision/judgment of acoordinate or larger Bench by itself cannot be regarded as aDground for review. [Para 4][684-D-E]

PER DHANANJAYA Y. CHANDRACHUD, J. (Dissenting)

2. The analysis of the majority opinion in Puttaswamy(Aadhaar-5J.) in relation to the second question, i.e., whetherthe Aadhaar Act was a ‘Money Bill’ under Article 110 has beendoubted by a coordinate bench in Rojer Mathew, when the firstEquestion was referred to a larger bench. The larger bench hasnot been constituted, and is yet to make a determination.Dismissing the present batch of review petitions at this stage – acourse of action adopted by the majority – would place a seal offinality on the issues in the present case, without the Court havingFthe benefit of the larger bench’s consideration of the very issueswhich arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification ofa Bill as a ‘Money Bill’ by the Speaker of the House of Peoplehas been doubted by a co-ordinate Constitution Bench in RojerMathew. With the doubt expressed by another ConstitutionGBench on the correctness of the very decision which is the subjectmatter of these review petitions, it is a constitutional error tohold at this stage that no ground exists to review the judgment.The larger bench’s determination would have an undeniableimpact on the validity of the reasons expressed in Puttaswamy H

(Aadhaar-5J.), on the constitutional issues pertaining to andarising out of the certification by the Speaker of the House ofPeople. The failure to recontextualize the decision of the largerbench with regard to the Aadhaar Act being a ‘Money Bill’under Article 110(1) will render it a mere academic exercise.[Para 11][691-D-H; 692-A]

3. It is important to draw a distinction with a situation wherea judgment attains finality and the view propounded by it isdisapproved by a larger bench subsequently. In the present case,the above-mentioned review petitions had all been filed beforethe judgment in Rojer Mathew was delivered on 13 November2019. The review petitions were pending on the date when areference was made to a larger bench in Rojer Mathew. Thesereview petitions were previously listed before a five-judge benchheaded by Justice Arun Mishra on 25 August 2020, and were notdisposed of. Hence, these review petitions have continued toremain pending until now, and there is a strong reason for thisCourt not to dismiss them pending the decision of the largerbench. [Para 12][692-B-C]

4. If these review petitions are to be dismissed and thelarger bench reference in Rojer Mathew were to disagree withthe analysis of the majority opinion in Puttaswamy (Aadhaar-5J.),it would have serious consequences – not just for judicialdiscipline, but also for the ends of justice. As such, the presentbatch of review petitions should be kept pending until the largerbench decides the questions referred to it in Rojer Mathew.[Para 14][693-A-B]

Puttaswamy (Aadhaar-5J.) v. Union of India (2019) 1

SCC 1: [2018] 8 SCR 1; Rojer Mathew v. South IndianBank Ltd (2020) 6 SCC 1: [2019] 16 SCR 1 – referredto.

Case Law Reference[2018] 8 SCR 1referred toPara 2[2019] 16 SCR 1referred toPara 6INHERENT JURISDICTION : Review Petition (Civil) DiaryNo.45777 of 2018.

From the Judgment and Order dated 26.09.2018 of this Court inWrit Petition (Civil) No.494 of 2012.

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Review Petition (Civil) No.3948 of 2018 in Writ Petition (Civil)No.231 of 2016, Review Petition (Civil) No.22 of 2019 in Writ Petition(Civil) No.1014 Of 2017, Review Petition (Civil) No.31 of 2019 in WritPetition (Civil) No.1058 of 2017 With Diary No.48326 of 2018, ReviewBPetition (Civil) No. 377 of 2019 in Writ Petition (Civil) No.342 of 2017And Review Petition (Civil) No.924 of 2019 in Writ Petition (Civil) No.829of 2013.

The following Order and Judgment of the Court were delivered:

ORDER*

C1. 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 finalDjudgment and order dated 26.09.2018. We have perused the reviewpetitions as well as the grounds in support thereof. In our opinion, nocase 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/judgmentof a coordinate or larger Bench by itself cannot be regarded as a groundfor review. The review petitions are accordingly dismissed.E5. Consequently, prayer for urging additional grounds in ReviewPetition (Civil) No. 22/2019 stands rejected.

JUDGMENT

DR. DHANANJAYA Y CHANDRACHUD, J.F1. I regret my inability to agree with the decision of the majority indismissing the present batch of review petitions.

2. This batch of petitions seeks a review of the decision of aConstitution Bench of this Court in Puttaswamy (Aadhaar-5J.) v Unionof India[1] [“Puttaswamy (Aadhar-5J.”]. Among the issues which aroseGfor decision, the Court had to answer two critical questions: (i) whetherthe decision of the Speaker of the House of People[2] 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. Khanwilkar, HMJ Ashok Bhushan,HMJ Abdul Nazeer, HMJ B. R. Gavai.1 (2019) 1 SCC 1H2 ‘House of People’ interchangeably referred as ‘Lok Sabha’

is final and binding, or can be subject to judicial review; and (ii) if thedecision is subject to judicial review, whether the Aadhaar (TargetedDelivery of Financial and Other Subsidies, Benefits and Services) Act,2016 (the “Aadhaar Act”) had been correctly certified as a ‘MoneyBill’ under Article 110(1) of the Constitution.

3. On the first question, the majority (speaking through Dr JusticeA.K. Sikri) stated that “[j]udicial review [of whether a Bill is a ‘MoneyBill’] would be admissible under certain circumstances having regardto the law laid down by this Court”[3]. While answering the secondquestion, the majority held that Section 7 of the Aadhaar Act had elementsof a ‘Money Bill’, and the other provisions were incidental to the ‘core’of the Aadhaar Act. Hence, the majority held that the Aadhaar Act hadbeen correctly certified as a ‘Money Bill’ under Article 110(1).

4. In his concurring opinion, Justice Ashok Bhushan answeredthe first question by holding that the decision of the Speaker of the Houseof People under Article 110(1) could be subject to judicial review whenit was in breach of a constitutional provision. Drawing a distinctionbetween an irregularity of procedure and a substantive illegality, JusticeAshok Bhushan held:

“901. There is a clear difference between the subject “irregularityof procedure” and “substantive illegality”. When a Bill does notfulfil the essential constitutional condition under Article 110(1),the said requirement cannot be said to be evaporated only oncertification by Speaker. Accepting the submission that certificationimmunes the challenge on the ground of not fulfilling theconstitutional condition, the Court will be permitting constitutionalprovisions to be ignored and bypassed. We, thus, are of the viewthat decision of the Speaker certifying the Bill as Money Bill isnot only a matter of procedure and in the event, any illegality hasoccurred in the decision and the decision is clearly in breach ofthe constitutional provisions, the decision is subject to judicialreview.”

However, in answering the second question, Justice Bhushan’sconcurring opinion agreed with the majority and held that the AadhaarAct had been correctly certified by the Speaker of the House of Peopleas a ‘Money Bill’ under Article 110(1).

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A5. The opinion authored by me, answered the first question byholding that:

“1080. The obligation placed on the Speaker of the Lok Sabha tocertify whether a Bill is a Money Bill is not a mere matter of“procedure” contemplated under Article 122. It is a constitutionalBrequirement, which has to be fulfilled according to the norms setout 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 review, canadjudicate upon the validity of the action of the Speaker if it causesconstitutional infirmities. Article 122 does not envisage exemptionCfrom judicial review, if there has been a constitutional infirmity.The Constitution does not endorse a complete prohibition of judicialreview under Article 122. It is only limited to an “irregularity ofprocedure”.”

However, on the second question, my decision dissented with theDmajority and Justice Ashok Bhushan, and held that the decision of theSpeaker of the House of People to certify the Aadhaar Act as a ‘MoneyBill’ under Article 110(1) was unconstitutional.

6. The issue whether judicial review can be exercised over adecision of the Speaker of the House of People under Article 110(3),Earose subsequently before another Constitution Bench in Rojer Mathewv South Indian Bank Ltd[4] (“Rojer Mathew”) This was in the contextof whether some of the provisions of the Finance Act, 2017 (relating toappointments to Tribunals and the conditions of service of members)could have been certified as a ‘Money Bill’ under Article 110.F7. The judgment delivered by the majority (speaking through ChiefJustice Ranjan Gogoi) answered this question by referring to the judgmentin Puttaswamy (Aadhaar-5J.) in the following terms:

“102. A coordinate Bench of this Court in K.S. Puttaswamy(Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5GJ.) v. Union of India, (2019) 1 SCC 1] , was tasked with a similarquestion of the certification of “Money Bill” accorded to theAadhaar (Targeted Delivery of Financial and Other Subsidies,Benefits and Services) Act, 2016 by the Speaker of Lok Sabha.The majority opinion after noting the important role of the Rajya

Sabha in a bicameral legislative set-up, observed that Article 110being an exceptional provision, must be interpreted narrowly.Although the majority opinion did not examine the correctness ofthe decisions in Mohd. Siddiqui [Mohd. Saeed Siddiqui v. State ofU.P., (2014) 11 SCC 415] and Yogendra Kumar Jaiswal [YogendraKumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2SCC (Cri) 1] or conclusively pronounce on the scope of jurisdictionor power of this Court to judicially review certification by theSpeaker under Article 110(3), yet, it independently reached aconclusion that the impugned enactment fell within the four cornersof Article 110(1) and hence was a “Money Bill”. The minorityview rendered, however, explicitly overruled both Mohd. Siddiqui[Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] andYogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State ofBihar, (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] byexamining whether or not the impugned enactment was infact a “Money Bill” under Article 110 without explicitlydealing with whether or not certification of the Speaker issubject to judicial review, has kept intact the power ofjudicial review under Article 110(3).It was further held thereinthat the expression “Money Bill” cannot be construed in arestrictive sense and that the wisdom of the Speaker of Lok Sabhain this regard must be valued, save where it is blatantly violativeof the scheme of the Constitution. We respectfully endorsethe view in Puttaswamy [K.S. Puttaswamy (Aadhaar-5 J.) v.Union of India, (2019) 1 SCC 1] and are in no doubt thatMohd. Siddiqui [Mohd. Saeed Siddiqui v. State of U.P.,(2014) 11 SCC 415] and Yogendra Kumar Jaiswal [YogendraKumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016)2 SCC (Cri) 1] insofar as they put decisions of the Speakerunder Article 110(3) beyond judicial review, cannot be reliedupon.”

(emphasis supplied)

However, the majority opinion noted that the first question wasnot adequately answered in the above decision in Puttaswamy (Aadhaar-5J.). It also noted its doubts on the determination of the second question:

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SUPREME COURT REPORTS

A“116. Upon an extensive examination of the matter, we noticethat 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 firstdelineating the scope of Article 110(1) and principles forinterpretation or the repercussions of such process. It is clear toBus that the majority dictum in K.S. Puttaswamy (Aadhaar-5J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019)1 SCC 1] did not substantially discuss the effect of the word“only” in Article 110(1) and offers little guidance on therepercussions of a finding when some of the provisions ofCan enactment passed as a “Money Bill” do not conform toArticles 110(1)(a) to (g). Its interpretation of the provisionsof the Aadhaar Act was arguably liberal and the Court’ssatisfaction of the said provisions being incidental toArticles 110(1)(a) to (f), it has been argued, is notconvincingly reasoned, as might not be in accord with theDbicameral parliamentary system envisaged under ourconstitutional scheme. Without expressing a firm and finalopinion, it has to be observed that the analysis in K.S. Puttaswamy(Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union ofIndia, (2019) 1 SCC 1] makes its application difficult to the presentEcase and raises a potential conflict between the judgments ofcoordinate Benches.

117. Given the various challenges made to the scope of judicialreview and interpretative principles (or lack thereof), asadumbrated by the majority in K.S. Puttaswamy (Aadhaar-5 J.)F[K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1SCC 1] and the substantial precedential impact of its analysis ofthe Aadhaar Act, 2016, it becomes essential to determine itscorrectness. 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 thatGthis batch of matters be placed before the Hon’ble the Chief Justiceof India, on the administrative side, for consideration by a largerBench.”

(emphasis supplied)

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As a consequence, the majority opinion held that “[t]he issue andquestion of Money Bill, as defined under Article 110(1) of theConstitution, and certification accorded by the Speaker of the LokSabha in respect of Part-XIV of the Finance Act, 2017 is referred to”[5]a larger Bench.

8. In his partly concurring and partly dissenting opinion, JusticeDeepak Gupta agreed with the majority opinion in referring the firstquestion of ‘Money Bill’ to a larger bench thus:

“365. I am in total agreement with the Chief Justice inasmuch ashe has held that the decision of the Hon’ble Speaker of the Houseof People under Article 110(3) of the Constitution is not beyondjudicial review. I also agree with his views that keeping in viewthe high office of the Speaker, the scope of judicial review in suchmatters is extremely restricted. If two views are possible thenthere can be no manner of doubt that the view of the Speakermust prevail. Keeping in view the lack of clarity as to whatconstitutes a Money Bill, I agree with the Hon’ble Chief Justicethat the issue as to whether Part XIV of the Finance Act, 2017, isa 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 partlyconcurring and partly dissenting opinion] analyses the ambit ofthe word “only” in Article 110(1) and the interpretation of sub-clauses (a) to (g) of clause (1) of Article 110 and concludes thatPart XIV of the Finance Act, 2017 could not have been validlyenacted as a Money Bill, I am in agreement with the reasonswhich have been set out by the learned Chief Justice of India torefer the aspect of Money Bill to a larger Bench and directaccordingly.”

9. Consequently, the correctness of the judgment in Puttaswamy(Aadhaar-5J.), in relation to what constitutes a ‘Money Bill’ under Article110 of the Constitution, the extent of judicial review over a certificationby the Speaker of the House of People and the interpretation which hasbeen placed on the provisions of the Aadhaar Act while holding the 5 Supra at note 3, at para 223.1

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Aenactment to be a ‘Money Bill’, are issues which will be resolved by alarger bench, which is yet to be constituted.

10. The present batch of review petitions, in challenging thecorrectness of the judgment in Puttaswamy (Aadhaar-5J.), assails thereasoning in the opinion of the majority on whether the Aadhaar ActBwas 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-C5J.) in which the majority opinion upheld the certificationof the Aadhaar Act as a ‘Money Bill’, which rests on theerroneous assumption that Section 7 of the Aadhaar Act isits core provision (Grounds XXIII-XXVII).

(ii) Review Petition (Civil) No. 3948 of 2018– This petitionDwas filed on 23 October 2018, and seeks a review ofPuttaswamy (Aadhaar-5J.) in relation to the majorityopinion upholding the certification of the Aadhaar Act as a‘Money Bill’ within the meaning of Article 110 (Grounds I-VII).

E(iii)Review Petition (Civil) No. 22 of 2019 – This petitionwas filed on 15 December 2018, and seeks a review ofPuttaswamy (Aadhaar-5J.) in relation to the majorityopinion upholding the certification of the Aadhaar Act as a‘Money Bill’, and its consequence on the constitutionalityof the enactment (Grounds I-VI).

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(iv) Review Petition (Civil) No. 31 of 2019 – This petitionwas filed on 21 December 2018, and seeks a review ofPuttaswamy (Aadhaar-5J.) in relation to the majorityopinion holding that the Aadhaar Act was correctly certifiedas a ‘Money Bill’ by the Speaker of the House of PeopleGby merely relying on Section 7 of the Aadhaar Act (GroundsGG-II).

(v) Diary No. 48326 of 2018– This petition was filed on 24December 2018, and seeks a review of Puttaswamy(Aadhaar-5J.) in relation to the majority opinion upholding H

the Aadhaar Act’s certification as a ‘Money Bill’, whicheliminated the possibility of discussion before the RajyaSabha (Grounds V-W).

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(vi) Review Petition (Civil) No. 377 of 2019 – This petitionwas filed on 10 January 2019, and seeks a review ofPuttaswamy (Aadhaar-5J.) in relation to the majorityBopinion holding that the Aadhaar Act could have beencertified as a ‘Money Bill’ at the time of its introduction inthe Lok Sabha (Ground A).

(vii) Review Petition (Civil) No. 924 of 2019– This petitionwas filed on 12 January 2019, and seeks a review ofPuttaswamy (Aadhaar-5J.) in relation to the majorityopinion upholding the Aadhaar Act’s certification as a‘Money Bill’ in terms of Article 110(1) even though itcontained provisions which affected the fundamental rightsunder Part III of the Constitution (Ground A).

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11. The analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Actwas a ‘Money Bill’ under Article 110 has been doubted by a coordinatebench in Rojer Mathew, when the first question was referred to alarger bench. The larger bench has not been constituted, and is yet tomake a determination. Dismissing the present batch of review petitionsat this stage – a course of action adopted by the majority – would placea seal of finality on the issues in the present case, without the Courthaving the benefit of the larger bench’s consideration of the very issueswhich 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 doubtedby a co-ordinate Constitution Bench in Rojer Mathew. With the doubtexpressed by another Constitution Bench on the correctness of the verydecision which is the subject matter of these review petitions, it is aconstitutional error to hold at this stage that no ground exists to reviewthe judgment. The larger bench’s determination would have an undeniableimpact on the validity of the reasons expressed in Puttaswamy(Aadhaar-5J.), on the constitutional issues pertaining to and arising outof the certification by the Speaker of the House of People. The failureto re-contextualize the decision of the larger bench with regard to the F

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AAadhaar Act being a ‘Money Bill’ under Article 110(1) will render it amere academic exercise.

12. It is important to draw a distinction with a situation where ajudgment attains finality and the view propounded by it is disapproved bya larger bench subsequently. In the present case, the above-mentionedBreview petitions had all been filed before the judgment in Rojer Mathewwas delivered on 13 November 2019. The review petitions were pendingon the date when a reference was made to a larger bench in RojerMathew.These review petitions were previously listed before a five-judge bench headed by Justice Arun Mishra on 25 August 2020, andwere not disposed of. Hence, these review petitions have continued toCremain pending until now, and there is a strong reason for us not todismiss them pending the decision of the larger bench, especially in lightof 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 hadDto determine whether a reference could be made to a larger bench in apending review petition. Answering this in the affirmative, the Courtheld that it need not admit the review petitions before referring thequestion to a larger bench. Further, the court noted that such a questioncould also be a pure question of law. In explaining the power of thisECourt to review its own judgments, Chief Justice S A Bobde, speakingfor the Bench, held thus:

“29. Order LV Rule 6 makes it crystal clear that the inherentpower of this Court to make such orders as may be necessary forthe ends of justice shall not be limited by the Rules. In S. NagarajFv. State of Karnataka [S. Nagaraj v. State of Karnataka, 1993Supp (4) SCC 595 : 1994 SCC (L&S) 320] , it was observed thateven when there was no statutory provision and no rules wereframed by the highest court indicating the circumstances in whichit could rectify its orders, the courts culled out such power toavoid abuse of process or miscarriage of justice. It was furtherGheld that this Court is not precluded from recalling or reviewingits own order if it is satisfied that it is necessary to do so for thesake of justice. The logical extension to the above is that referenceof questions of law can be made in any pending proceeding before BEGHAR FOUNDATION THROUGH ITS SECRETARY v. JUSTICE K.S.PUTTASWAMY [DR. DHANANJAYA Y CHANDRACHUD, J.]

this Court, including the instant review proceedings, to meet theends of justice.”

14. If these review petitions are to be dismissed and the largerbench reference in Rojer Mathew were to disagree with the analysisof the majority opinion in Puttaswamy (Aadhaar-5J.), it would haveserious consequences – not just for judicial discipline, but also for theends of justice. As such, the present batch of review petitions should bekept pending until the larger bench decides the questions referred to it inRojer Mathew. In all humility, I conclude that the constitutional principlesof consistency and the rule of law would require that a decision on theReview Petitions should await the reference to the Larger Bench.

Ankit Gyan

Petitions dismissed.

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