The Constitution Bench of the Supreme Court, in its judgment examining the validity of provisions of Finance Act 2017 affecting tribunals, has doubted the correctness of the interpretation of the majority judgment which held that Aadhaar Bill is a Money Bill within the meaning of Article 110(1) of the Constitution.

The effect of the word 'only' in the interpretation of Article 110(1) was referred for examination by a larger bench of seven judges.

Article 110 of the Constitution defines a Money Bill. It reads that a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the matters listed in clauses (a) to (g) thereunder.

The majority judgment in Aadhaar case by Justice AK Sikri had held that the Aadhaar Bill in its pith and substance should pass the test of being a Money Bill and not isolated provisions in the Act. It was held that main provision of the Aadhaar Act is a part of Money Bill and other are only incidental and, therefore, covered by clause (g) of Article 110. Justice Ashok Bhushan, in his concurring opinion, had held that, for treating a bill as Money Bill, the main and substantive provision of an enactment should only be any or all of the sub-clauses from (a) to (f). Justice Chandrachud, in his dissent, referred to the word 'only' in Article 110(1) and said that the pith and substance doctrine which is applicable to legislative entries would not apply when deciding the question whether or not a particular bill is a "Money Bill".

Now, the lead judgment by CJI Ranjan Gogoi in Rojer Mathew vs. South Indian Bank Ltd noted that the majority dictum in Aadhaar judgment did not substantially discuss the effect of the word 'only' in Article 110(1) and did not examine the repercussions of a finding when some of the provisions of an enactment passed as a "Money Bill" do not conform to Article 110(1)(a) to (g).

The judgment reads:

It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word 'only' in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a "Money Bill" do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not 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) makes its application difficult to the present case and raises a potential conflict between the judgments of coordinate Benches.

In this case, the contention of the petitioners was that every impugned provision be individually examined and brought either under Article 110(1)(a) to (f) or be incidental thereto, as permitted by Article 110(g). In case even a single provision did not satisfy either of the aforementioned two categories, then the entire Finance Act, 2017 would be an affront to the prefatory phraseology of Article 110(1) and must be declared as being unconstitutional, it was urged. On the other hand, the Attorney General objected to reading of the enactment in read in a piece-meal manner and submitted that if its dominant provisions, which form the core of the enactment, fall within the ambit of Article 110(1)(a) to (f), it can be treated as money bill. The court further noted:

In the context of Article 110(1) of the Constitution, use of the word 'only' in relation to sub-clauses (a) to (f) pose an interesting, albeit a difficult question which was not examined and answered by the majority judgment in K.S. Puttaswamy (Aadhaar-5). While it may be easier to decipher a bill relating to imposition, abolition, remission, alteration or regulation of any tax, difficulties would arise in the interpretation of Article 110(1) specifically with reference to sub-clauses (b) to (f) in a bill relating to borrowing of money or giving of any guarantee by the Government of India, or an amendment of law concerning financial obligation.

Therefore on this aspect, the matter has been referred to larger bench

Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), we accordingly direct that this batch of matters be placed before Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.

Justice Chandrachud's opinion: Use of the expression "only" is to impart exclusivity.

In his concurring opinion Justice Chandrachud noted that during the course of the debates in the Constituent Assembly, an amendment (though negatived) was moved to Article 90 for deletion of the expression "only ". The judge [Para 25-30], also referring to the provisions of Article 110(2) said:

"The word 'only' is of crucial significance. The consequence of the use of the expression "only" is to impart exclusivity. In other words, a Bill will be deemed to be a Money Bill only if it falls within the description of the matters enunciated in clauses (a) to (g). If the Bill contains matters which are unrelated to or do not fall within clauses (a) to (g), it is not a Money Bill.

This is a clear indicator of the constitutional position that what makes a Bill a Money Bill for the purposes of Chapter II of Part V of the Constitution is that it deals only with matters falling under the description provided in clauses (a) to (g) of Article 110 (1). Clause (g) of Article 110 (1) covers ―any matter incidental to‖ what is specified in clauses (a) to (f). Clause (g) must not be understood as a residuary provision or a catch-all-phrase encompassing all other matters which are not specified in clauses (a) to (f). If this construction were to be placed on clause (g), the distinction between an Ordinary Bill and a Money Bill would vanish. Hence, to be incidental within the meaning of clause (g), the Bill must cover only those matters which fall within the ambit of clauses (a) to (f). It is only a matter which is incidental to any of the matters specified in clauses (a) to (f) which is contemplated in clause (g)

The judge further opined that though Article 110 does not bar the inclusion of non-fiscal proposals in a Money Bill, but permitting the inclusion of non-fiscal subjects, sub-clause (g) of Article 110(1) embodies the requirement that such a matter must be incidental to any of the matters specified in sub-clauses (a) to (f).

"In other words, the inclusion of a non-fiscal matter is permissible in a Money Bill only if it is incidental or ancillary to a matter specified in sub-clauses (a) to (f). Part XIV has repealed and replaced substantive provisions contained in the enactments specified in the Eighth and Ninth Schedules which are not referable to sub-clauses (a) to (f) of Article 110(1). Part XIV of the Finance Act 2017 is thus not incidental within the meaning of sub-clause (g). The plain consequence is that by adopting the special procedure contained in Article 109, the substantive procedure governing Ordinary Bills under Articles 107 and 108 has been rendered otiose. If the provisions contained in Part XIV were to be enacted in the form of an Ordinary Bill, the Rajya Sabha would have a vital voice in deliberating and discussing on the nature of the legislative proposals. Part XIV contains provisions which lie outside the domain permissible under Article 110."

Further at Para 81, the Justice Chandrachud said:

Article 110(1) defines a Money Bill as a bill which contains "only provisions" dealing with all or any of the matters enumerated in sub-clauses (a) to (f). The import of sub-clause (g) of clause (1) of Article 110 is that the proposed bill may also contain provisions which have an incidental bearing on the matters enumerated in sub-clauses (a) to (f). However, sub-clause (g) cannot be read to permit a bill consisting of provisions which do not directly pertain to matters enumerated in sub-clauses (a) to (f), but have only an incidental bearing on the matters enumerated in sub-clauses (a) to (f). Implicit in the term ―incidental‖ is the relation between the principal subject matters of the bill which must be referable to sub-clauses (a) to (f) and other matters. Every provision of a bill which is claimed to be a Money Bill must directly pertain to any of the matters enumerated in clauses (a) to (f). Where it is claimed that a provision falls within the ambit of sub-clause (g), the provision must depend on or be appurtenant ―to any of the matters specified in sub-clauses (a) to (f).

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