[This is a guest post by Anmol Jain.]
Introduction
In a recent Supreme Court Judm Treating the determination of the Court’s power to review the decision of the Bihar Legislative Council of expelling one of its members, Dr. Sunil Kumar Singh, of the Chamber membership for calling Nitith Kumar Paltu RamAmong other things, the Court made certain important comments on Interpretation article 212 of the Indian Constitution. Beyond the facts of this case and the question of expulsion, and the punishment in general, of the members of the legislative assemblies, the thesis observations are of critical relevance for other things about the relationship of the legislature and the judgments. One of these issues is the scope of the judicial review of the speaker’s decisions, including certifying an invoice as a money bill. In the following paragraphs, I show how the interpretive framework adopted by the Court to creatively delimit the limits of article 212 could help him answer the question about his power to review the speaker’s decisions in the affirmative.
The existing jurisprudence of the Court and its problems
Before progress more, it is beneficial to reproduce article 212 of the Constitution:
212. Courts Do not investigate the procedures of the Legislature. (1) The validity of any procedure in the legislature of a State will not be called in question by any supposed irregularity of procedure. …
By way of article 122, a similar restriction is also expected for the procedures of Parliament. In the existing jurisprudence, the Court has introduced the idea of separating the procedural irregularities of substantive illegalities to maintain that articles 122/212 only protect the first from the judicial review. Any action of the legislature, if it could be classified as substantially illegal and goes against the constitutional text or mandate, cannot be saved from the judicial scrutiny. In other words, the Court has clarified that the Legislature cannot use the attire of article 122/212 to participate in non -stiturative decision making.
If we are particularly praise of the judgments that deal with the speaker’s decision to certify a bill as a bill of money, the court consistently has a hero that any unfair certification would be a mere procedural irregularity in the AADION), the dissenting of the dissenting of the dissent), disgusting the disaster), disgusting the disaster), disgusting the disagreement). Dissident) dissident) dissent. Such unfair certification should be treated as illegality. This position was further justified in Rojer Mathews V South Indian Bank Ltd“ When the hero of the Court, article 122 of the Constitution does not provide a bar against challenging the decision of the speaker for substantive illegality. However, the court created a very high bar to be for a success with this challenge:
It should be emphasized that the scope of the judicial review in the matters under article 110 (3) is extremely restricted, with the bee to maintain the judicial department of the Lok Sabha speaker certification. There would be a presumption of legality in favor of the decision of the speaker and UN, without a doubt, he would be in the person who defies his validity to demonstrate that such certification was very little statosy or contaminated with illegality of Blanty. The courts should not replace the speaker’s evaluation or take a second plausible interpretation. On the other hand, the judicial review must be restricted only to the very extreme instance where there is complete contempt for the constitutional scheme itself. It is not the function of constitutional courts to act as forums for appeal, especially in the opinion of the speaker, because doing so would invite the risk of paralyzing the functioning of Parliament.
Therefore, under the existing jurisprudence, while a judicial review of the speaker’s decision is possible, the standard to be is very high. Also, as I have argued elsewhereThere are two additional problems with the existing court approach. First, as the issue of reviewing the speaker’s decision has been addressed to a large extent in matters that deal with money invoices, their approach has remained biased and blind to other possible ways for abuse of power. The Court has linked each challenge with the “serious violation of the constitutional mandate”, which makes it uncertain if it would consider the violation of parliamentary rules by the speaker sufficient for a judicial challenge. Consider, for example, situations in which the speaker can erroneously deny the division of votes. Secondly, according to the existing doctrine, the review of the legislative action depends on the determination of the Court that the action is substantially illegal or a mere procedural irregularity. As the history of the Performance of the Supreme Court shows with respect to money invoices, this exercise is necessarily subjective (or discretionary) and does not imply an objective evaluation by the Court.
The Court’s decision in Dr. Sunil Kumar Singh
I propose that the decision of the Supreme Court in Dr. Sunil Kumar Singh V Bihar Legislative Assembly It should be read in this doctrinal and analytical context. This sentence suggests another interpretive gymnastics to support the Court’s review power; However, it addresses this question in a much more objective way. In this case, the Court differentiated the aspect of the “procedures in the legislature” of the “legislative decision” and argued that the restrictions provided for in articles 212/122 are applicable only to the former. The court observed:
12. To simplify the understanding of the postulate embargo by virtue of article 212 (1), we consider it appropriate to distinguish the terms – propositions in the legislature ‘and’ legislative decision ‘. These terms represent different concepts, each that serves a different function in the law process.
13. To explain even more, the ‘procedures in the Legislature’ include the formal steps, the debates and the motions made for the facilitation deliberations within the Chamber. It is a structured mechanism that guarantees due consideration of a proposal measure, which allows discussion, amendment and scrutiny before reaching a final resolution. The thesis procedural steps are not final in themselves, but are designed to channel legislative discourse towards a devioridive result. Article 212 (1) of the Constitution provides immunity for the form of such program and, therefore, the constitutional courts would take exercise restrictions when such as they are questioned on the basis of procedural irregularity.
14. A ‘legislative decision’, on the other hand, is the culmination of the legislative procedure: the formal expression of the will of the Chamber in a given matter. Although the procedures of the legislature provide the framework within which the members exercise their deliberative functions, the legislative decision is the authorized determination that follows said deliberation. These decisions of the legislature, although emanating from a coordinated branch of the government, are not immune to the scrutiny by the constitutional courts. (Emphasis supplied)
In the context of money invoices, speaker determination can be classified as a legislative decision. For other issues in which the speaker has the power of decision -making, we may refer to the decision of the Superior Court of Calcutta in Ambika Roy V The Hon’ble President, Legislative Assembly of Western Bengalwhere the Superior Court observed that the president’s decision to ignore the conventional constitutional convention of appointing an opposition member as president of the Public Accounts Committee could be challenged in trial. From the framework of the decision in Dr. Sunil Kumar SinghThis would necessarily mean that the president’s decision appoint a legislator as president is also a legislative decision. It is true that it is not the culmination of the will of the house; However, it is the ‘culmination of the legislative procedure’ as expected in the Constitution. As the court indicates even more in paragraph 16, essentially adopting a Dworkinian approach, if it is a decision -making authority ‘,’, ‘,’, ‘,Either the legislature or otherwise,“Acts in manners that violate the Constitution, violate fundamental rights or exceed constitutional authority, such actions would be subject to judicial review”Preserve integrity into the legal system by prevention of excess and abuse of power. ” Any unfair determination of a bill as a bill of money would be an express violation of article 110 of the Constitution, which allows the Court to intervene and judge on the correction of the determination of the speaker within this framework.
In addition, the main reason for the intervention of the court in this particular matter was due to the fact that if such actions of the Legislature/President are not verified judicially, it would do so ‘not only undermine democratic values depriving the member To participate in the procedures of the house but also affects The electorates of the Constitution that remain without reprimand“(¶58). I thought I could count as a distant stretch, a set of similar considerations is involved when a speaker erroneously certifies a bill as a money bill. First, he undermines the democratic and deliberative values attached to the legislative processes as the weight of the recommendations of Rajya Sabha erroneously when considering them not respecting the Lok. They represent the state legislatures instead of the people), the fact that a form of representation is Horkt, an unjustified certification without repressing.
In summary, it could be argued that non -interference by the court results in the possibility that the speaker affects the democratic fabric of the legislative prospects of decision -making, making the underlying principles develop in Dr. Sunil Kumar Singh Directly relevant to the ongoing judicial determination on the meaning and scope of money invoices, in which the court can also have the opportunity to think more deeply about judicial review issues. Although similar arguments can be made when the speaker is involved in a white contempt of parliamentary rules; However, such extension cannot be done conclusively to the language of Dr. Sunil Kumar Singh.