Money Bill and judicial review
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1 Pratik Datta & Shefali Malhotra September 30, 2016
2 Part I What is money bill?
3 Basic understanding
4 Part II Why study money bills?
5 What is common across these laws? SEBI-FMC merger FEMA Amendment CG s jurisdiction on non-debt Offence for aquisition of FX RBI s MPC - inflation targeting Aadhar
6 Other interesting developments Insolvency and Bankruptcy Code Datar in Indian Express Salve on CNBC TV GST: Jaitley-Chidambaram Jairam Ramesh v. Union of India, WP(C) 231/2016
7 Part III So what is the research question?
8 Speaker s certificate
9 Speaker s certificate Article 110(4): There shall be endorsed on every Money Bill when it is transmitted to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.
10 Definition of money bill A money bill must contain all or any of the following: 1 imposition, abolition, remission, alteration or regulation of any tax; 2 regulation of the borrowing of money or the giving of any guarantee by the Government of India; 3 payment of moneys into or the withdrawal of moneys from CFI; 4 the appropriation of moneys out of the Consolidated Fund of India; 5 declaring or increasing of any expenditure to be expenditure charged on the CFI; 6 receipt of money on account of the CFI; 7 any incidental matter.
11 What happens if the speaker s decision is wrong? Article 110(3): If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.
12 A simple question 1 Can the speaker s certification of a bill as money bill be questioned by SC?
13 Part IV Why did the concept of money bill originate?
14 Bit of history Who can impose tax on subjects? The King
15 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm
16 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation
17 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament
18 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land
19 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords
20 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses
21 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses Lords added additional provisions by amendment - tacking
22 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses Lords added additional provisions by amendment - tacking 1671 Resolution - Lords cannot change or alter
23 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses Lords added additional provisions by amendment - tacking 1671 Resolution - Lords cannot change or alter Upper House can either accept or reject in full
24 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses Lords added additional provisions by amendment - tacking 1671 Resolution - Lords cannot change or alter Upper House can either accept or reject in full Tacking - Lower House would put in unconnected provisions
25 Bit of history Who can impose tax on subjects? The King Magna Carta: King + general consent of the realm No taxation without representation Frequent convening - Parliament Realm expanded to other Freemen of the Land Grants granted by commons; assented to by Lords Judges decision - approval of both Houses Lords added additional provisions by amendment - tacking 1671 Resolution - Lords cannot change or alter Upper House can either accept or reject in full Tacking - Lower House would put in unconnected provisions 1849 SO - Lords given limited right to amend
26 Parliament Act, 1911
27 Parliament Act, House of Lords rejected the Annual Finance Bill
28 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911
29 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911 Preamble - restricting the existing powers of the House of Lords
30 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911 Preamble - restricting the existing powers of the House of Lords Defined a money bill
31 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911 Preamble - restricting the existing powers of the House of Lords Defined a money bill It must in the opinion of the Speaker contain only certain provisions
32 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911 Preamble - restricting the existing powers of the House of Lords Defined a money bill It must in the opinion of the Speaker contain only certain provisions Speaker s certificate when sent to HoL and HM
33 Parliament Act, House of Lords rejected the Annual Finance Bill Parliament Act, 1911 Preamble - restricting the existing powers of the House of Lords Defined a money bill It must in the opinion of the Speaker contain only certain provisions Speaker s certificate when sent to HoL and HM S. 3: Certificate of speaker Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purpose, and shall not be questioned in any court of law.
34 Part V Moving to Indian Constitution
35 Comparison Art 75(3) -> Article 110(3), Indian Constitution: If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final. Article 22(1), Irish Constitution: The Chairman of Déail ÉEireann 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.
36 Conclusions on Indian speaker s certificate Final for the Upper House It is not conclusive for all purpose Does not say shall not be questioned in any court of law
37 Part VI Proceedings in Parliament outside judicial review
38 Article 122 Article 122(1): Courts not to inquire into proceedings of Parliament The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
39 Constituent Assembly Debates BR Ambedkar, May 23, 1949: For the reason I have explained, the only forum there the proceedings can be questioned in a legal manner and legal relief obtained either against the President or the Speaker or any officer or Member, being the Court, it is unnecessary to specify the forum. Mr. Kamath will see that the marginal note makers it clear.
40 Conclusion Proceedings can be challenged except for irregularity of procedure
41 Part VII What is procedure under Art. 112(1)?
42 Procedures: Constitution v. Rules
43 Supreme Court s decisions Article Procedure generally Procedural irregularity v. Procedural illegality 1 Special Reference No. 1 of 1964 (1964, 7JJ) Keshav Singh - 1 lawyer - 2 judges 2 Raja Ram Pal v. Hon ble Speaker, Lok Sabha (2007) Questions for money - Article 105
44 Part VIII Supreme Court on money bills
45 Contrary jurisprudence Mangalore Ganesh Bidi Works (1962, 5JJ) Indian Coinage (Amendment) Act, 1955 Mohd. Saeed Siddiqui v. State of UP (2014, 3JJ) UP Lokayukta (Amendment) Act, 2012 Yogendra Kumar Jaiswal v. State of Bihar (2015, 2JJ) Orissa Special Courts Act, 2006
46 Part IX Foreign precedents
47 Overview
48 Overview 1 Expressly prohibits judicial review
49 Overview 1 Expressly prohibits judicial review UK 2 Offers alternative dispute resolution
50 Overview 1 Expressly prohibits judicial review UK 2 Offers alternative dispute resolution Ireland 3 No speaker s certificate
51 Overview 1 Expressly prohibits judicial review UK 2 Offers alternative dispute resolution Ireland 3 No speaker s certificate Australia, Canada, S. Africa 4 Speaker s certificate final
52 Overview 1 Expressly prohibits judicial review UK 2 Offers alternative dispute resolution Ireland 3 No speaker s certificate Australia, Canada, S. Africa 4 Speaker s certificate final India, Pakistan
53 Part X Conclusion
54 Take aways
55 Take aways Money bill route misued
56 Take aways Money bill route misued Speaker s certificate final for Upper House
57 Take aways Money bill route misued Speaker s certificate final for Upper House Constitution allows judicial review
58 Take aways Money bill route misued Speaker s certificate final for Upper House Constitution allows judicial review SC judgements contradictory
59 Take aways Money bill route misued Speaker s certificate final for Upper House Constitution allows judicial review SC judgements contradictory Possibly per incurium
60 Take aways Money bill route misued Speaker s certificate final for Upper House Constitution allows judicial review SC judgements contradictory Possibly per incurium Is judicial review desirable?
61 Take aways Money bill route misued Speaker s certificate final for Upper House Constitution allows judicial review SC judgements contradictory Possibly per incurium Is judicial review desirable? Explore alternatives
62 Part XI Thanks
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