Rajya Sabha Day and a call for retrospection

Image source: rajyasabha.nic.in

On the pivotal day of April 3^rd in 1952, Rajya Sabha was constituted for the first time and ever since the day has been commemorated as Rajya Sabha Day. This year has been no different with politicians and constitutional functionaries reminding the nation of the importance of Council of States. What is different this year was that the Attorney General, a day before, was arguing before the Supreme Court that Finance Act, 2017 has been rightly passed as a Money Bill.  The manner of passage of the Bill in 2017 led to sharp criticism against the government. Commentators went on to accuse the government of turning the constitution on its head to evade Rajya Sabha's scrutiny. To understand the scenario wholly, the position of Money Bill vis-à-vis Rajya Sabha has to be understood first.

Under the conventional setup, for any Bill to become an Act, it has to pass through both the Houses of Parliament. In our parliamentary setup, Rajya Sabha actually depicts the sincerity, maturity of lawmaking process against Lok Sabha which is a symbol of impulse, urge, and public opinion. Rajya Sabha has been installed to act as a blockade on hasty and impulsive decisions in the lawmaking process. In this function of dampening, it can safely be said that the Council of State has, by and large, been successful and this precisely is what irks the Government of the day. The government commands an absolute majority in the lower house but has little control over Rajya Sabha. This state of affairs has created a sharp rift between the government and Lok Sabha on one side and Rajya Sabha on the other. This brings me to the point from where the discussion took off, Money Bill.

Unlike its other siblings, Money Bill does not need Rajya Sabha’s assent to become an Act. The powers of the Upper House in respect of Money Bill are very limited as are demarcated by Article 109. A Money Bill, apart from capable of only being introduced in Lok Sabha, once passed by the Lower House and endorsed as Money Bill by Speaker is required to be passed by Rajya Sabha within a short period of fourteen days. If the Bill is not passed within the requisite period, it is deemed to be have been passed by the upper house. The recommendations of Rajya Sabha, if it chooses to give any while passing the Bill, do not bind the lower house and Lok Sabha may or may not incorporate the suggestions before the Bill metamorphoses into an Act. The foregoing lines show that, though the distribution of legislative power between both the Houses is symmetrical, but in case of Money Bill the existence of Rajya Sabha is virtually obliterated making the parliament unicameral.

Article 110 defines Money Bill, but for the purpose of our discussion, the definition is not important. What is more important is the question that who gets to decide whether a Bill is Money Bill or not? Article 110 says that in case of disagreement over nature of the Bill, the decision of the Speaker of Lok Sabha shall be final. So basically, it is Speaker who decides that a Bill will have to pass only through one House or both the Houses. This theoretical predicament was brought into the material realm when Finance Act 2017 was endorsed by the Speaker as a Money Bill, even though the Bill had numerous provisions dealing with matters having no monetary angle to them. From this, two questions sprung out. First, whether the decision of Speaker is final on certification of Money Bill and not reviewable Courts? And second, is such bypassing desirable in a parliamentary democracy like ours? The first question is currently being debated upon before a Constitution Bench of the Supreme Court.

With regard to the second question, it is important to highlight that this allegedly incorrect certification is not a standalone event; the same process was adopted in case of Aadhar Act, 2016. This trend taking the parliamentary procedure for a ride has sparked concern amongst the intelligentsia. Moreover, these bypasses have been made in case of legislation with far-reaching consequences where a second opinion would have been handy. Opposition leaders have termed the Bill as backdoor legislation devised for the sole purpose to circumvent scrutiny by Standing Committees.

This practice has the potential to make the Rajya Sabha redundant. Our constitutional fathers while basing the supreme document on rule of law conceptualized that our nascent democracy needed a chamber that can deliberate on legislative measures in calmness, putting aside their passion. This practice was labeled as a ‘fraud on the constitution’ by Justice D.Y. Chandrachud in his powerful dissent in Aadhar judgment.

Institutions are not strengthened just by commemoration and celebration, it requires resolute will and determination.  Rajya Sabha is an important feature of our parliamentary setup and it symbolizes our constitutional aspirations. It this newly inducted practice continues then the Speaker can certify each and every Bill into Money Bill, practically dispensing with the need of Upper House. When the Supreme Court will render judgment on the first question, it will, in all probability, touch upon the second question but parliamentary propriety demanded that it should never have gone before an arbiter. That, Rajya Sabha should have been respected!