Case BriefsSupreme Court (Constitution Benches)

Supreme Court: On September 26, 2019, the 5-judge bench of former CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ, ‘finally’ put an end to the Aadhaar dilemma in a 4:1 verdict and declared that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was valid and not violative of the fundamental right to privacy. The Court also held that Section 7 was the core provision of the Aadhaar Act and since it satisfied the condition of Article 110 of the Constitution, the Aadhaar Act was validly passed as Money Bill.

Just over a year later, when another 5-judge bench sat to decide the validity of Finance Act, 2017 as a Money Bill, it realised that the Aadhaar issue might not just be over yet.

The 5-judge Constitution Bench of Ranjan Goigoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ went through the the judgment in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1 when both parties in the Finance Act validity case relied upon it.

After “extensively examining” the issue, the Bench noticed that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the Aadhaar Act, 2016 without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It, hence, said,

“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).”

In the Aadhaar-5 Verdict, referring to the definition of “Money Bill” and the meaning and purpose of the word ‘only’ used in Article 110(1) of the Constitution, Ashok Bhushan, J. had observed that legislative intent was that the main and substantive provision of an enactment should only be any or all of the sub-clauses from (a) to (f). In the event the main or substantive provisions of the Act are not covered by sub-clauses (a) to (f), the bill cannot be said to be a “Money Bill”. It was further observed that the use of the word ‘only’ in Article 110(1) has its purpose, which is clear restriction for a bill to be certified as a “Money Bill”. It was, hence, observed that the Aadhaar Act veers around the government’s constitutional obligation to provide for subsidies, benefits and services to individuals and other provisions are only incidental provisions to the main provision. Therefore, the Aadhaar Bill was rightly certified by the Speaker as a “Money Bill.

It is pertinent to note that Chandrachud, J was the lone dissenting judge in the 4:1 Aadhaar-5 verdict and he was also the part of the 5-judge bench that referred the issue of validity of Finance Act being passed as Money Bill to a 7-judge bench. In his minority opinion in the Aadhaar-5 verdict, Chandrachud, J had, referring to the word ‘only’ in Article 110(1) of the Constitution, observed 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”. He had held,

“the Money Bill must deal with the declaration of any expenditure to be charged on the Consolidated Fund of India (or increasing the amount of expenditure) and, therefore, Section 7 of the Aadhaar Act did not have the effect of making the bill a Money Bill as it did not declare the expenditure incurred on services, benefits or subsidies to be a charge on the Consolidated Fund of India.”

Noticing that the majority judgment in K.S. Puttaswamy (Aadhaar-5) did not elucidate and explain the scope and ambit of sub-clauses (a) to (f) to clause (1) of Article 110 of the Constitution, a legal position and facet which arises for consideration in the present case and assumes considerable importance, the Court, held

“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.”

[Roger Mathew v. South India Bank Ltd.,  2019 SCC OnLine SC 1456, decided on 13.11.2019]

Read the full report on 2018 Aadhaar Judgment here.

Read the full report on the Finance Act judgment here

Case BriefsSupreme Court

Supreme Court: The 7-Judge Bench of Jagdish Singh Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, writing down the detailed judgement in the Justice C.S. Karnan matter, said that Justice Karnan shielded himself from actions, by trumpeting his position, as belonging to an under-privileged caste and levelled obnoxious allegations against innumerable Judges of the Supreme Court, Chief Justices of the High Courts, but mostly against Judges of the Madras High Court, however, he did not support his allegations with any material. The Court had, on 09.05.2017, found Justice Karnan guilty of contempt of court and imposed 6 months’ imprisonment upon him.

Stating that Justice Karnan’s allegations were malicious and defamatory, the Court said that Justice Karnan carried his insinuations to the public at large by endorsing his letters carefully so as to widely circulate the contents of his communications, to the desired circles. Some of his letters were intentionally endorsed, amongst others, to the President of the Tamil Nadu Advocate Association. He also used internet to place his point of view, and the entire material, in the public domain. Further, during the course of hearing of the instant contempt petition, his ridicule of the Supreme Court remained unabated. He stayed orders passed by this Court, restrained the Judges on this Bench from leaving the country and convicted them, along with another Judge of this Court, and sentenced them to 5 years imprisonment, besides imposing individual costs on the convicted Judges. Considering the aforesaid facts, the Court held that the actions of Justice Karnan constituted the grossest and gravest actions of contempt of Court and hence, he is liable to be punished, for his unsavoury actions and behavior.

However, J. Chelameswar and Ranjan Gogoi, JJ, writing down a separate judgment, explained the scope power of the Court in the matter and said that scandalising the Court is considered to be contempt of court and the actions of Justice Karnan amount to scandalising. They also acknowledged the fact that the case had highlighted 2 important aspects for consideration i.e.

(1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels.  The Judges said that what appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all the concerned – the Bar, the Bench, the State and Civil Society.

(2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures – other than impeachment – to be taken. It was said that there can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible, however, the Constitution is silent in this regard.

Stating that the whole incident has caused an embarrassment to Indian Judiciary, the judges called for nationwide debate on the aforementioned issues. [In Re: Justice C.S. Karnan,  2017 SCC OnLine SC 703, decided on 04.07.2017]

Hot Off The PressNews

Supreme Court: The vacation bench of D.Y. Chandrachud and S.K. Kaul, JJ refused to grant interim bail to Justice C.S. Karnan who was arrested yesterday in Coimbatore after being on a run for over a month.

On 09.05.2017, the 7-Judge Bench of Jagdish Singh Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, found Justice Karnan guilty of contempt of court and imposed 6 months’ imprisonment upon him. His advocate Mathew J Nedumpara said that the Court had all the powers and should grant the interim bail to Justice Karnan till the reopening of the Court. However, the vacation bench said that it could not override the decision of a 7-judge bench and hence it could neither grant interim bail nor suspend the 6 months’ sentence awarded to him for contempt of court.

Source: PTI

Case BriefsSupreme Court

Supreme Court:  Due to non-appearance of Justice C.S. Karnan before the Court in the contempt proceedings initiated against him, the 7-judge bench of J.S. Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, P.C. Ghose and Kurian Joseph, JJ directed the matter to be listed on 10.03.2017.

Certain counsel had appeared before the Court without a power of attorney. The Court, hence, said that no one should appear in this matter, without due consent and authorization. Directing Justice Karnan to appear before the Court in person, the Bench said that the contempt proceedings are a matter strictly between the Court and the alleged contemnor and anyone who enters appearance and disrupts the proceedings of this case in future, will be proceeded against, in consonance with law.

On 08.02.2017, the Court had restrained Justice Karnan from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him and had asked him to appear before the Court on 13.02.2017. The said order of the Court came after Justice Karnan had written letters to Prime Minister Narendra Modi, asking him to take actions against the corrupt sitting and retired judges of the Supreme Court and Madras High Court when he was a Judge of the Madras High Court and had passed an injunction against his own transfer orders. [In Re: Justice C.S. Karnan, 2017 SCC OnLine SC 122, order dated 13.02.1017]


Case BriefsSupreme Court

Supreme Court: Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Dr. D.Y. Chandrachud, J writing down the majority judgment for himself and S.A. Bode, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ, laid down the principles for promulgation of ordinances as follows:

  • The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative and conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action;
  • An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must be laid before the legislature; and it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn. Also, The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the state assented to by the Governor (Article 213(3)). The framers having used the expressions “cease to operate”,  “void” separately in the same provision, they cannot convey the same meaning;
  • The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213;
  • The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine:

(a) The need for, validity of and expediency to promulgate an ordinance;

(b) Whether the Ordinance ought to be approved or disapproved;

 (c) Whether an Act incorporating the provisions of the ordinance should be enacted

  • The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process;
  • No express provision has been made in Article 123 and Article 213 for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate. The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity.
  • The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles.

Madan B. Lokur, J, writing down his minority view said that there is no universal or blanket prohibition against re-promulgation of an Ordinance, but it should not be a mechanical re-promulgation and should be a very rare occurrence. There could be situations, though very rare, when re-promulgation is necessary. T.S. Thakur, CJ, after going through both the views, said that there may indeed be situations in which a repromulgation may be necessary without the ordinances having been placed before the legislature. Equally plausible is the argument that the constitution provides for the life of ordinances to end six weeks from the date of re-assembly of the legislature, regardless whether the ordinances has or has not been placed before the house. Leaving the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open, he said that regardless whether the requirement of placing the ordinance is mandatory as held by Chandrachud, J. or directory as declared by Lokur J., the repeated repromulgation of the ordinances were constitutionally impermissible and a fraud on the powers vested in the executive. [Krishna Kumar Singh v. State of Bihar, 2017 SCC OnLine SC 10, decided on 02.01.2017]