ROJER MATHEW v. SOUTH INDIAN BANK LTD. & ORS.

A decision also adverted to Raja Ram Pal, this Court held that any infirmity of procedure was protected by Article 255.

44. The subsequent decision of a two judge Bench of this Court in Yogendra Kumar dealt with the constitutional validity of the Orissa Special Courts Act 2006, enacted to provide special courts for offences involving the accumulation of properties disproportionate to their known- sources of income by persons who have held or hold high political and public offices. Repelling the challenge that the law could not have been introduced as a Money Bill in the legislative assembly, this Court, speaking through Justice Dipak Misra (as the than was) held thus: “43. In our considered opinion, the authorities cited by the learned counsel for the appellants do not render much assistance, for the introduction of a Bill, as has been held in Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] , comes within the concept of “irregularity” and it does come with the realm of substantiality. What has been held in Special D Reference No. 1 of 1964 [Powers, Privileges and Immunities of State Legislatures, In re (Special Reference No. 1 of 1964), AIR 1965 SC 745] has to be appositely understood. The factual matrix therein was totally different than the case at hand as we find that the present controversy is wholly covered by the pronouncement in Mohd. Saeed Siddiqui and hence, we unhesitatingly hold that there is no merit in the submission so assiduously urged by the learned counsel for the appellants.”

45. The three judge Bench decision in Mohd Saeed Siddiqui relied on Mangalore Beedi as laying down the principle that a certificate of the Speaker that a Bill is a Money Bill is immune from judicial review. The decision in Mangalore Beedi, as we have seen, was based on a finding by the Constitution Bench that the substitution of a new coinage did not constitute an enhancement of tax and hence did not attract the requirements of a Money Bill. But the three judge Bench decision in Mohd. Saeed Siddiqui also adverts to the provisions of the Article 255 in attributing immunity to the certificate of the Speaker G that a Bill is a Money Bill. Now Article 255 applies in a situation where “some recommendation or previous sanction” required by the Constitution was not given though the Act of Parliament or the legislature of state has since received assent. Thus, where the recommendation required is that of the Governor, the assent of the H President or of the Governor and where the recommendation or

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previous sanction required is that of the President, the assent by the A President will protect the legislation being called into question. The subsequent assent to the law cures the absence of a recommendation, or as the case may be, sanction. Article 255 does not deal with the certificate of the Speaker under Article 110 (3) or Article 199 (3), which is neither a recommendation nor a previous sanction within the meaning of Article 255. B

46. Mohd Saeed Siddiqui proceeds on an incorrect construction of the decision in Mangalore Beedi and on an erroneous understanding of Article 255. The decision in Pandit MSM Sharma v Dr Shree Krishna Sinha35 which was adverted to in Mohd Syed Siddiqui was discussed in the Special Reference to hold that the validity of the proceedings in a legislative chamber can be questioned on the ground of illegality. The decisions in the Special Reference, Ramdas Athawale and Raja Ram Pal clearly hold that the validity of the proceedings before Parliament or a state legislature can be subject to judicial review on the ground of an illegality (as distinguished from an irregularity of procedure) or a constitutional violation. Hence, the decisions in Mohd Syed Siddiqui and Yogendra Kumar on the above aspect do not lay down the correct position in law and are overruled. D Puttaswamy: Judicial review of the certificate of the Speaker

47. The Aadhaar (Targeted Delivery of Financial and Other E Subsidies, Benefits and Services) Bill 2016 was certified as a Money Bill under Article 110 by the Speaker of the Lok Sabha. The exclusion of the Rajya Sabha from the legislative process consequent upon the certification by the Speaker under Article 110(3) was one of the specific challenges addressed before the Constitution Bench (K S Puttaswamy F v Union of India).36 Justice A K Sikri, speaking for three of the five judges of the Constitution Bench, analysed the provisions of the Aadhaar Act 2016 on the basis of two fundamental precepts: first, the importance of the Rajya Sabha in a bicameral legislature as “succinctly exemplified”37 by the decision in Kuldip Nayar v Union of India38 (“Kuldip Nayar”) and second, the Rajya Sabha as an “important G institution signifying the constitutional federalism”39. 35 AIR 1960 SC 1186 36 (2019) 1 SCC 1 (“Puttaswamy“) 37 Puttaswamy at para 462 38 (2006) 7 SCC 1 39 Puttaswamy at para 463 H

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A 48. Having enunciated these principles, Justice Sikri emphasised the need for the passage of a Bill by both the Houses of Parliament which, according to the learned Judge, is a “constitutional mandate” 40. The only exception, the majority observed, is contained in Article 110. As a result, Article 110 being an exception to the scheme of bicameralism had to be given a “strict construction”41. The majority held B thus: “463. The Rajya Sabha, therefore, becomes an important institution signifying constitutional federalism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the Houses, namely, Lok Sabha as well as Rajya Sabha. C It is the constitutional mandate. The only exception to the aforesaid Parliamentary norm is Article 110 of the Constitution of India. Having regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides.” The above extract clearly indicates that the arguments were considered on the touchstone of the requirement that for a Bill to be a Money Bill, strict adherence to the provisions of Article 110 is necessary.

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“455.1.Sub-Committee on Judicial Accountability v. Union of A India (1991) 4 SCC 699]. 455.2.S.R. Bommai v. Union of India, (1994) 3 SCC 1] . 455.3.Raja Ram Pal v. Lok Sabha (Supra) 455.4.Ramdas Athawale (5) v. Union of India (Supra) B 455.5.Kihoto Hollohan v. Zachillhu (Supra).” The majority then proceeded to analyse whether the provisions contained in the Act could validly pass muster under Article 110. In the view of the majority, Section 7 which makes the receipt of a subsidy, benefit or service conditional on the identity of the recipient being established by the process of authentication under Aadhaar was referable to Article 110 since these financial benefits were “extended with the support of the Consolidated Fund of India” 43. The provisions of Section 23(2)(h) and Section 54 were held to be incidental to the main provision and covered by Article 110(g). Section 57, which permitted the use of Aadhaar by private entities for other purposes, was held to be unconstitutional. Having thus analysed the provisions of the Bill, the majority held: “472. For all the aforesaid reasons, we are of the opinion that Bill was rightly introduced as Money Bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the Bill being Money Bill is subject to judicial review or not, whether a provision which does not relate to Money Bill is severable or not. We reiterate that main provision is a part of Money Bill and other are only incidental and, therefore, covered by clause (g) of Article 110 of the Constitution.” (Emphasis supplied).

50. Both Mr Arvind Datar, learned amicus curiae and the learned Attorney General for India have highlighted the apparent inconsistency among the observations contained in paragraphs 463, 464 and 472 of the judgment. For, paragraph 464 rejects the submissions of the Union of India that the Speaker’s decision is not justiciable in the aftermath

43 Puttaswamy at para 466 H

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A of the earlier discussion that Article 110 must receive a strict construction, while para 472 holds that it was not necessary for the majority to deal with whether certification by the Speaker of a Bill as a Money Bill is subject to judicial review. However, in the course of the conclusion in paragraph 515, the issue to which answers were framed was: B “515.(6). Whether the Aadhaar Act could be passed as “Money Bill” within the meaning of Article 110 of the Constitution?” The answer in paragraph 515.1 is in the following terms: “515.1. We do recognise the importance of Rajya Sabha (Upper C House) in a bicameral system of the Parliament. The significance and relevance of the Upper House has been succinctly exemplified by this Court in Kuldip Nayar’s case [Kuldip Nayar v. Union of India, (2006) 7 SCC 1]. The Rajya Sabha, therefore, becomes an important institution signifying constitutional federalism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The only exception to the aforesaid Parliamentary norm is Article 110 of the Constitution of India. Having regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides.”

51. On merits, Section 7 was held to be a core provision, satisfying the conditions of Article 110 while the others were held to be incidental in nature. Section 57 had been held to be unconstitutional. Hence the conclusion was in the following terms: “467…Section 7 is the core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the G Constitution. Upto this stage, there is no quarrel between the parties. 515.5. On examining of the other provisions pointed out by the petitioners in an attempt to take it out of the purview of Money Bill, we are of the view that those provisions are incidental in nature which have been made in the proper working of the Act. H

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In any case, a part of Section 57 has already been declared unconstitutional. We, thus, hold that the Aadhaar Act is validly passed as a ‘Money Bill’.

52. A holistic reading of the decision of the majority would indicate that: (i) Article 110 has been construed to be an exception to the principle of bicameralism and, therefore, the provision must (it has been held) receive strict interpretation; (ii) Section 7 constituted the core provision of the Aadhaar Bill which was referable to Article 110 while the other provisions were incidental; and (iii) Section 57 was held to be unconstitutional in so far as it allowed the use of the Aadhaar platform by private entities including corporate bodies. The observations in para 472 cannot, therefore, be construed to mean that the majority desisted from expressing a final view on justiciability.

53. The judgment of Justice DY Chandrachud specifically holds that the decision of the Speaker to certify a Bill as a Money Bill is not immune from judicial review. After tracing the constitutional history of Article 110 including the provisions of the Parliament Act 1911 in D Britain and Section 37 of the Government of India Act 1935, the judgment places reliance on the construction placed on the provisions of Article 122 and the corresponding provision in Article 212 in (i) Special Reference; (ii) Ramdas Athawale ; and (iii) Raja Ram Pal. In coming to the conclusion that the decision of the Speaker is amenable E to judicial review if it suffers from illegality or from a violation of constitutional provisions, the decisions in Mohd Saeed Siddiqui and Yogendra Kumar Jaiswal were disapproved. Distinguishing the principle of Parliamentary sovereignty in the UK from the position of constitutional supremacy in India, the decision observes: F “1067. The purpose of judicial review is to ensure that constitutional principles prevail in interpretation and governance. Institutions created by the Constitution are subject to its norms. No constitutional institution wields absolute power. No immunity has been attached to the certificate of the Speaker of the Lok Sabha from judicial review, for this reason. The Constitution G makers have envisaged a role for the judiciary as the expounder of the Constitution. The provisions relating to the judiciary, particularly those regarding the power of judicial review, were framed, as Granville Austin observed, with “idealism” [Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford H

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A University Press (1966), at p. 205.] Courts of the country are expected to function as guardians of the Constitution and its values. Constitutional courts have been entrusted with the duty to scrutinise the exercise of power by public functionaries under the Constitution. No individual holding an institutional office created by the Constitution can act contrary to constitutional parameters. Judicial review protects the principles and the spirit of the Constitution. Judicial review is intended as a check against arbitrary conduct of individuals holding constitutional posts. It holds public functionaries accountable to constitutional duties. If our Constitution has to survive the vicissitudes of political aggrandisement and to face up to the prevailing cynicism about all constitutional institutions, notions of power and authority must give way to duties and compliance with the rule of law. Constitutional institutions cannot be seen as focal points for the accumulation of power and privilege. They are held in trust by all those who occupy them for the moment. The impermanence of power is a sombre reflection for those who occupy constitutional offices. The Constitution does not contemplate a debasement of the institutions which it creates. The office of the Speaker of the House of People, can be no exception. The decision of the Speaker of the Lok Sabha in certifying a Bill as E a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles. Nor can such a decision of the Speaker take leave of constitutional morality.”

54. Justice Ashok Bhushan, in his separate opinion, specifically held that the decision of the Speaker in certifying a Bill as a Money F Bill is capable of judicial review. The learned judge held thus: “901. We have noticed the Constitution Bench judgments in Kihoto Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] and Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184] that finality of the decision of the Speaker is not G immuned from Judicial Review. All Bills are required to be passed by both Houses of Parliament. Exception is given in case of Money Bills and in the case of joint sitting of both Houses. In event, we accept the submission of learned Attorney General that certification by Speaker is only a matter of procedure and cannot be questioned by virtue of Article 122(1), any Bill, which does H

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not fulfil the essential constitutional condition under Article 110 A can be certified as Money Bill by-passing the Upper House. There is a clear difference between the subject “irregularity of procedure” and “substantive illegality”. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot B be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, Court will be permitting constitutional provisions to be ignored and by-passed. We, thus, are of the view that decision of the Speaker certifying the Bill C as Money Bill is not only a matter of procedure and in event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to Judicial Review. We are, therefore, of the view that the Three Judge Bench judgment of this Court in Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Two Judge Bench judgment of this Court in Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] do not lay down the correct law. We, thus, conclude that the decision of the Speaker certifying the Aadhaar Bill as Money Bill is not immuned from Judicial Review.” (Emphasis supplied) Justice Ashok Bhushan then held on merits that the Bill had been correctly passed as a Money Bill. F

55. From the above analysis, it is evident that the judgments of both Justice D Y Chandrachud and Justice Ashok Bhushan categorically held that the decision of the Speaker to certify a Bill as a Money Bill is not immune from judicial review. There is a clear distinction between an irregularity of procedure under Article 122(1) and a substantive G illegality. The certificate of the Speaker under Article 110(3) is not conclusive in so far as judicial review is concerned. Judicial review can determine whether the conditions requisite for a Bill to be validly passed as a Money Bill were fulfilled. The point of difference between the majority (represented by the decisions of Justice Sikri and Justice Ashok H

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A Bhushan) and Justice Chandrachud was that on merits, the majority came to the conclusion that the Aadhaar Bill is a Money Bill within the meaning of Article 110(1) while the dissent held otherwise.

56. On an overall reading of the judgment of Justice Sikri, it is not possible to accede to the submission of the learned Attorney General B that the issue of the reviewability of the certificate of the Speaker is left at large by the decision of the majority. In any event, in view of the issue having arisen in the present case, we have dealt with the aspect of judicial review independently of the decision in Puttaswamy. E Role of the Rajya Sabha C

57. The Rajya Sabha consists of not more than two hundred and fifty members, twelve nominated by the President (from persons with special knowledge or practical experience in literature, science, art and social service) and not more than two hundred and thirty eight representatives of the States and Union Territories 44. The Fourth D Schedule specifies the manner in which allocation of seats is made in the Rajya Sabha. The elected members of the legislative assembly of every state elect the representatives of the state in the Rajya Sabha in accordance with “the system of proportional representation by means of the single transferable vote”. Representation of the Union Territories E is provided by a law enacted by Parliament.

44 80 (1) The Council of States] shall consist of— (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States 3[and F of the Union territories.] (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories] shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. (3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:- G Literature, science, art and social service. (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5) The representatives of the [Union territories] in the Council of States shall be H chosen in such manner as Parliament may by law prescribe.

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58. The Rajya Sabha, unlike the Lok Sabha, is not subject to dissolution but one-third of its members retire by rotation45. The Lok Sabha, unless sooner dissolved, has a life span of five years. In contrast, the Constitution envisages that the Rajya Sabha is an institution possessed of constitutional continuity with a third of its members retiring by rotation at stipulated intervals. In line with the principle of constitutional continuity, Article 107(4) stipulates that a Bill which is pending in the Rajya Sabha which has not been passed by the Lok Sabha shall not lapse on the dissolution of the Lok Sabha. On the other hand, under Clause (5), a Bill which is pending in the Lok Sabha or upon being passed by the Lok Sabha is pending in the Rajya Sabha, shall lapse on a dissolution of the Lok Sabha, subject to Article 108 46. C The role of the Rajya Sabha in respect of Money Bills has, however, been substantially curtailed. Money Bills can originate only in the Lok Sabha. Moreover, the Rajya Sabha has only a recommendatory power, as noticed earlier, in regard to Money Bills. Bicameralism D

59. Bicameralism emerged in 14th century Britain. The House of Lords represented a chamber where a debate took place with feudal lords, while the House of Commons was where citizens were represented. The House of Lords comprised of hereditary peers while the House of Commons in their historical origin comprised of persons E possessed of property as required. Across the Atlantic, the Constitution of the United States adopted bicameralism. The Constitutional Convention of 1787 represented a constitutional compromise where the House of Representatives comprised of directly elected legislatures, each voter possessed of an equal vote in the elections and the Senate, where each state could send two members elected indirectly. In the F 45

83. (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. (2) The House of the People, unless sooner dissolved, shall continue for 1[five years] from the date appointed for its first meeting and no longer and the expiration G of the said period of 1[five years] shall operate as a dissolution of the House: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. 46 Article 108 contains provisions for a joint sitting of two Houses of Parliament. H

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A Federalist Papers, James Madison underscored the importance of the Senate as an indirectly elected Upper House of a bicameral legislature: “First … a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. … Second: The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. … Third: Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. … E A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. …

F Fourth: The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government.”

60. Madison conceived of the Senate as a body which imposes a salutary check on government. To Madison, the requirement of concurrence of two legislative bodies ensured against usurpation of public power. The Senate was conceived of as a body capable of calm deliberation, isolated from the governing passions of the day. As a sobering voice, the Senate, it was conceived would reflect an expertise in framing legislation. It was an institution which symbolises stability in constitutional governance.

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HM Seervai in his classical text, Constitutional Law of India47 A emphasises the position of the Rajya Sabha as a critical ingredient in the federal structure: “First and foremost, Parliament (the Central Legislature) is dependent upon the States, because one of its Houses, the Council of States, is elected by the Legislative Assemblies of the States. B Where the ruling party, or group of parties, in the House of the People has a majority but not an overwhelming majority, the Council of States can have a very important voice in the passage of legislation other than financial Bills. Secondly, a Bill to amend the Constitution requires to be passed by each House of Parliament separately by an absolute majority in that House and by not less than two-thirds of those present and voting. Since the Council of States is indirectly elected by the State Legislatures, the State Legislatures have an important say in the amendment of the Constitution because of the requirement of special majorities in each House. Thirdly, the very important matters mentioned in the proviso to Article 368 (Amendment of the Constitution) cannot be amended unless the amendments passed by Parliament are ratified by not less than half the number of Legislatures of the States … Fourthly, the amendment of Article 352 by the 44th Amendment gives the Council of States a most important voice in the declaration of Emergency, because a E proclamation of emergency must be approved by each House separately by majorities required for an amendment of the Constitution … Fifthly, the executive power of the Union is vested in the President of India who is not directly elected by the people but is elected by an electoral college consisting of (a) the elected F Members of the Legislative Assemblies of the States, and (b) the elected members of both Houses of Parliament … Directly the State Legislatures have substantial voting power in electing the President; that power is increased indirectly through the Council of States, which is elected by the Legislative Assemblies of States.” G

61. The Rajya Sabha Secretariat has, in its publication titled “Second Chamber in Indian Parliament: Role and Studies of Rajya 47 HM Seervai, Constitutional Law of India, Universal Law Co Pvt Ltd, Vol I, (1991), at pp.299-300 H

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A Sabha”, emphasised the position of the Rajya Sabha as an institution sensitive to the aspirations of the states, contributing in that capacity to strengthening the federal structure of the nation. The publication emphasises some of the special powers possessed by the Rajya Sabha: “(i) Article 249 of the Constitution provides that Rajya Sabha B may pass a resolution, by a majority of not less than two- thirds of the Members present and voting to the effect that it is necessary or expedient in the national interest that Parliament should make a law with respect to any matter enumerated in the State List. Then, Parliament is empowered to make a law on the subject specified C in the resolution for the whole or any part of the territory of India. Such a resolution remains in force for a maximum period of one year but this period can be extended by one year at a time by passing a further resolution; D (ii) Under Article 312 of the Constitution, if Rajya Sabha passes a resolution by a majority of not less than two- thirds of the Members present and voting declaring that it is necessary or expedient in the national interest to create one or more All India Services common to the Union and the States, Parliament has the power to create by law such services; and (iii) Under the Constitution, the President is empowered to issue Proclamations in the event of national emergency (Article 352), in the event of failure of constitutional machinery in a State (Article 356), or in the case of financial emergency (Article 360). Normally, every such Proclamation has to be approved by both Houses of Parliament within a stipulated period. Under certain circumstances, however, Rajya Sabha enjoys special powers in this regard. If a Proclamation is issued at a time when the dissolution of the Lok Sabha takes place within the period allowed for its approval, then the Proclamation can remain effective if a resolution approving it, is passed by Rajya Sabha.”

62. In Kuldip Nayar, Chief Justice Y K Sabharwal speaking for the Constitution Bench emphasised the role of the Rajya Sabha in the following observations:

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“47. The Rajya Sabha is a forum to which experienced public A figures get access without going through the din and bustle of a general election which is inevitable in the case of the Lok Sabha. It acts as a revising chamber over the Lok Sabha. The existence of two debating chambers means that all proposals and programmes of the Government are discussed twice. As a B revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha.” The significance of the role of the Rajya Sabha was also emphasised by Justice A K Sikri (writing on behalf of himself and two other judges) in Puttaswamy. Complementing those observations, the judgment of Justice DY Chandrachud places the position of the Rajya C Sabha, in the context of federalism being a part of the basic features of the Constitution: “1106. The institutional structure of the Rajya Sabha has been developed to reflect the pluralism of the nation and its diversity of language, culture, perception and interest. The Rajya Sabha D was envisaged by the makers of the Constitution to ensure a wider scrutiny of legislative proposals. As a second chamber of Parliament, it acts as a check on hasty and ill-conceived legislation, providing an opportunity for scrutiny of legislative business. The role of the Rajya Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power. The Upper Chamber complements the working of the Lower Chamber in many ways. The Rajya Sabha acts as an institution of balance in relation to the Lok Sabha and represents the federal structure [ In S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1998] of India. Both the existence and the role of the Rajya Sabha constitute a part of the basic structure of the Constitution. The architecture of our Constitution envisions the Rajya Sabha as an institution of federa bicameralism and not just as a part of a simple bicameral legislature. Its nomenclature as the “Council of States” rather than the “Senate” G appropriately justifies its federal importance.”

63. Bicameral legislatures have a significant constitutional role particularly in the context of federal structures. The Rajya Sabha, as our Constitution emphasises, represents the aspirations of the states and is hence a critical element in the constitutional design of the federal H

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A structure. The Rajya Sabha is an institution possessed of constitutional continuity. The body is not dissolved like the House of the People and its members retire by rotation. The exclusion of the Rajya Sabha has been contemplated in the context of Money Bills. However, this is an exception to the overarching principle that Bills have to be passed by both Houses of Parliament. B

64. There is a significant difference between the provisions of Article 110(1) which defines Money Bills and the provisions of Article 117(1) which enunciates special provisions as to Financial Bills. Article 117(1) provides that a Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of Article 110(1) shall C not be introduced or moved except on the recommendation of the President of India and the Bill making such provision shall not be introduced in the Council of States. The word ‘only’ which is employed in Article 110(1) in the definition of Money Bills is absent in Article 117(1). The Legislative Procedure in the Rajya Sabha48 explains that D Financial Bills are comprised in categories I and II respectively: “b. Financial Bills – Category-I A Bill falling under clause (1) of article 117 of the Constitution is called a Financial Bill. It is a Bill which seeks to make provision for any of the matters specified in sub-clauses(a) to E (f) of clause (1) of article 110 as also other matters. It is, so to say, a Bill which has characteristics both of a Money Bill… firstly, it cannot be introduced in Rajya Sabha, and secondly, it cannot be introduced except on the recommendations of the President. Except these two points of difference, a Financial Bill F in all other respects is just like any other ordinary Bill. (c). Financial Bills – Category-II There is yet another class of Bills which are also Financial Bills under article 117(3). Such Bills are more in the nature of ordinary G Bills rather than the Money Bills and Financial Bills mentioned earlier. The only point of difference between this category of Financial Bills and the ordinary Bills is that such a Financial Bill, if enacted and brought into operation, involves expenditure from the Consolidated Fund of India and cannot be passed by either 48 H Legislative Procedure in the Rajya Sabha,: Rajya Sabha Secretariat at p. 17

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House of Parliament unless the President has recommended to A that House the consideration of the Bill. In all other respects this category of Bills is, just like ordinary Bills, so that such a Financial Bill can be introduced in Rajya Sabha, amended by it or a joint sitting can be introduced in Rajya Sabha, amended by it or a joint sitting can be held in case of disagreement between the Houses B over such a Bill. There is, in other words, no limitation on the power of Rajya Sabha in respect of such Financial Bills.” The above classification re-emphasises the distinction of a Financial Bill with a Money Bill, which is a Bill which contains ‘only’ provisions of the description specified in sub-clauses (a) to (g) of Article C 110(1).

65. The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an indispensable constitutive unit of the federal backbone of the Constitution. Potential differences between the two houses of the Parliament cannot be resolved by simply ignoring D the Rajya Sabha. In a federal polity such as ours, the efficacy of a constitutional body created to subserve the purpose of a deliberate dialogue, cannot be defeated by immunising from judicial review the decision of the Speaker to certify a Bill as a Money Bill. F Merits of the challenge E F.1 Passage as a Money Bill

66. On 19 February 2014, the Appellate Tribunals and Other Authorities (Conditions of Service) Bill 2014 was introduced in the Rajya Sabha to provide “uniform conditions of service of the Chairman and Members” of 26 tribunals. Clause 3 of the Bill provides: F

“3. Notwithstanding anything to the contrary contained in the provisions of the specified Acts, the provisions of this Act shall apply to the Chairman and Members appointed under the specified Acts: G Provided that the provisions of this Act shall not apply to the Chairman and other Members, as the case may be, holding such office immediately before the commencement of the said Act.” ‘Specified Acts’ were enunciated in the First Schedule to the Bill. The Bill was referred to the Department related Standing Committee H

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A which submitted its Seventy Fourth Report on 26 February 2015. The Bill was withdrawn on 11 April 2017.

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this Rule does not rule out the possibility of inclusion of non- A taxation proposals. Therefore, I have accepted this. The Finance Bill may contain non-taxation proposals also… So, incidental provisions can be made. That is why, keeping in view that rule 2019 does not specifically bar inclusion of non- taxation proposals in a Finance Bill, I rule out the Point of Oder.” B

70. Upon the passage of the Finance Bill 2017, the Rules were D notified by the Union of India in the Ministry of Finance on 1 June 2017. In terms of Section 184 of the Finance Act 2017, the Rules specify: (i) criteria of eligibility; (ii) procedure of selection; (iii) provisions for resignation and removal; (iv) salaries and emoluments; (v) term and tenure; and (vi) other service conditions such as leave and allowances to members of scheduled tribunals. E

Part XIV of the Finance Act 2017 is titled: “Amendments to certain Acts to provide for Merger of Tribunals and Other Authorities and Conditions of Service of Chairpersons, Members etc.” F

71. Section 158 effects amendments to several Parliamentary enactments: i. The Industrial Disputes Act,1947 ii. The Employees’ Provident Funds and Miscellaneous Provisions Act 1952 G iii. The Copyright Act 1957 iv. The Trade Marks Act 1999 v. The Railway Claims Tribunal Act 1987 vi. The Railways Act 1989 H

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A vii. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976 viii. The Foreign Exchange Management Act 1999 ix. The Airports Authority of India Act 1994 B x. The Control of National Highways (Land and Traffic) Act 2002 xi. The Telecom Regulatory Authority of India Act 1997 xii. The Information Technology Act 2000

C xiii. The Airports Economic Regulatory Authority of India Act 2008 xiv. The Competition Act 2002 xv. The Companies Act 2013 xvi. The Cinematograph Act 1952 D xvii. The Income Tax Act 1961 xviii. The Customs Act 1962 xix. The Administrative Tribunals Act 1985 E xx. The Consumer Protection Act 1986 xxi. The Securities and Exchange Board of India Act 1992 xxii. The Recovery of Debts Due to Banks and Financial Institutions Act 1993

F xxiii. The Armed Forces Tribunal Act 2007 xxiv. The National Green Tribunal Act 2010

72. Section 183 provides: “183. Notwithstanding anything to the contrary contained in the provisions of the Acts specified in column (3) of the Eighth G Schedule, on and from the appointed day, provisions of section 184 shall apply to the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the said H Schedule:

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Provided that the provisions of section 184 shall not apply to the A Chairperson, Vice Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or, as the case may be, Member holding such office as such immediately before the appointed day.” The Eighth Schedule contains a list of 19 Tribunals together with the corresponding enactments under which they were constituted. The effect of Section 183 is to override the provisions of those enactments and to stipulate that from the appointed day, the provisions of Section 184 shall apply to Chairpersons, Vice Chairpersons, Presidents, Vice Presidents, Presiding Officers and Members of the Tribunals or, as the case may be, Appellate Tribunals. Those who hold office immediately before the appointed day have been excluded. Section 184 stipulates: “184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the E Eighth Schedule: Provided that the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by F the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding G Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed,— (a) in the case of Chairperson, Chairman or President, the age of seventy years; H

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A (b) in the case of Vice-Chairperson, Vice-Chairman, Vice- President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, B Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.”

73. Section 184 has conferred a rule making power on the Central C Government to provide for the (i) qualifications; (ii) appointment; (iii) terms of office; (iv) salaries and allowances; (iv) resignation; (vi) removal; and (viii) other terms and conditions of service. The proviso stipulates that the term of office shall be such as is prescribed in the Rules made by the Central Government not exceeding five years and that a Member would be eligible for reappointment. An upper age limit is prescribed by the second proviso. Section 185 (1) stipulates that Chairpersons, Presidents or Vice Chairpersons, Vice Presidents, Presiding Officers and Members of the Tribunals or Appellate Tribunals who hold office before the appointed day shall cease to do so and be entitled to compensation not exceeding three months’ pay and allowances for the premature termination of the term of office or the contract of service.

74. The learned Attorney General for India submitted that Part XIV of the Finance Act 2017 is sustainable with reference to sub- clauses (c), (d) and (g) of clause (1) of Article 110. The submission is that the certification by the Speaker is of the entire Finance Bill when it was transmitted to the Rajya Sabha. The Attorney General urged that payment of salaries is made out of the Consolidated Fund of India. Once this be the position, the other provisions of Part XIV are, it was urged, incidental in nature. It is argued that salaries, allowances and pension will have a direct nexus with the Consolidated Fund of India and are incidental to the provisions contained in the Finance Act 2017. In this context, reliance was placed on: (i) the presumption of constitutional validity (State of West Bengal v Anwar Ali Sarkar51, R.K. Garg v Union of India52 and Subramanian Swamy v Director, Central 51 (1952) SCR 284 52 H (1981) 4 SCC 675

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Bureau of Investigation53); (ii) the importance of the doctrine of separation of powers (Bhim Singh v Union of India54).

75. The provisions of Part XIV of the Finance Act 2017 amend, first and foremost, the legislative enactments under which diverse tribunals, including appellate tribunals were constituted. By and as a result of the amendments, the statutory provisions relating to qualifications for appointment, the process of appointment, terms of office and the terms and conditions of service including salaries, allowances, resignation and removal are overridden and are to be governed by the provisions of Section 184. Section 184 confers a rule making power on the Central Government to stipulate all the above aspects in regard to the adjudicatory personnel appointed to these tribunals. By this process, the governing statutory provisions embodied in the parent legislation are overridden and authority is conferred upon the Central Government to formulate other aspects of the process from qualifications for office and the process of appointment to the terms of service, through delegated legislation. D

76. This, in our view, completely transgresses the conditions stipulated in Article 110(1) for constituting a Money Bill. Article 110 does not bar the inclusion of non-fiscal proposals in a Money Bill. But while 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 E 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 F 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 G in deliberating and discussing on the nature of the legislative proposals. Part XIV contains provisions which lie outside the domain permissible under Article 110. 53 (2014) 8 SCC 682 54 (2010) 5 SCC 538 H

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A 77. We are unimpressed with the submissions of the learned Attorney General that since salaries are payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c) and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include qualifications and process for appointment terms of office and terms and conditions of service including salaries, allowances, resignation and removal which cannot be reduced to only a question of the financial burden on the Consolidated Fund of India. The effect of Part XIV is to amend and supersede the provisions contained in the parent enactments governing all aspects of the appointment and terms of service of the adjudicatory personnel of the tribunals specified in the D Eighth and Ninth Schedules. This exercise cannot be construed as a legitimate recourse to the power of enacting a Money Bill.

78. The Attorney General for India urged that the provisions of Part XIV of the Finance Act 2017, in so far as they have a financial bearing on the Consolidated Fund of India, are sustainable with E reference to sub-clauses (c), (d), (e) and (g) of clause (1) of Article 110.

79. Sub-clause (c) deals, inter alia, with the withdrawal of money from either the Consolidated Fund of India or the Contingency Fund of India. Sub-clause (d) deals with the appropriation of money out of the F Consolidated Fund of India. Sub-clause (e) stipulates either the declaration of any expenditure or the increase in the amount of expenditure charged on the Consolidated Fund of India. It was contended that Part XIV of the Finance Act 2017, in so far as it has a bearing on the Consolidated Fund of India, is incidental to the matters G referred in sub-clauses (c), (d) and (e) of Article 110(1).

80. Sub-clause (g) stipulates that provisions dealing with any matter incidental to the matters specified in sub-clauses (a) to (f) fall within the purview of Article 110(1). However, this is distinct from contending that where a bill contains provisions not referable to the sub- H clauses (a) to (f) stipulated in clause (1) of Article 110 but has an

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incidental bearing on the Consolidated Fund of India, this by itself would bring such a bill within the purview of sub-clause (g) of Article 110(1).

81. 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).”

82. Part XIV of the Finance Act 2017 canvasses a range of amendments which include qualifications and process for appointment of members of tribunals, terms of office and terms and conditions of service including salaries, allowances, resignation and removal which are not referable to sub-clauses (a) to (f) of clause (1) of Article 110. Almost every government action involves an increase or decrease of expenditure which may be relatable to the Consolidated Fund of India. Accepting the argument urged would amount to inverting sub-clause (g) and allowing any bill which is not referable to the matters enumerated in Article 110(1) to be passed as a Money Bill so long as it can be shown that the provisions may have some bearing on the Consolidated Fund of India.

83. Further, the contention urged that the transfer of the power to determine salaries has a direct nexus with the Consolidated Fund of India glosses over the distinction between the power to determine of modify salaries and the determination or modification of the salary. The transfer of the power to determine or modify salaries does not, by itself, lead to the conclusion that such transfer of authority to the rule making function by the Central Government is referable to the Consolidated Fund of India in the manner contemplated in the sub-clauses referred to above. H

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A 84. The transfer of authority to determine qualifications and process for appointments, terms of office and terms and conditions of service including salaries, allowances, resignation and removal of tribunal members from the statutory provisions determined by the legislature to the executive is the transfer of a substantive right which has a bearing on constitutional design as well as the independence of adjudicatory tribunals. They are not referable to sub-clauses (c), (d) and (e) of Article 110(1) and do not amount to matters incidental to any of the matters enumerated in sub-clauses (a) to (f) of clause (1) of Article 110.

85. There is undoubtedly a presumption of constitutionality which attaches to legislation. The presumption is founded on the principle that the legislature in a parliamentary democracy understands the needs and conditions of the time and that the executive government which pilots legislation through the competent legislature is accountable to both the legislature and to the people whom the elected arm of government represents. But the presumption of constitutionality is what it is, namely, a presumption. The presumption can be displaced on a clear violation of a constitutional mandate or infraction being established. Where a Bill which contains provisions which are not referable to sub-clauses (a) to (g) of clause (1) of Article 110 is passed as a Money Bill, that constitutes a clear violation of the mandate of Article 110. The E presumption of constitutionality stands displaced.

86. The learned Attorney General urged that the doctrine of separation of powers would require this Court to tread with caution since certification of a Bill as a Money Bill, as he submits, pertains to the internal functioning of Parliament. Judicial review, it was submitted, F would violate the separation of powers. The submission overlooks the fundamental position that the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an exception which has been carved out by the Constitution to the constitutional requirements accompanying the passage of ordinary legislation. In G passing the Bill as a Money Bill, the immediate impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of legislation.

87. The Rajya Sabha as a legislative institution represents the voice, concerns and aspirations of Indian federalism. The reduction of H the role of the Rajya Sabha in the case of a Money Bill was engrafted

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

by the draftspersons of the Constitution with a specific purpose. In their view, Money Bills should appropriately be reserved for the authority of the Lower House which consists of directly elected representatives of the people. But to regard a Bill which is not a Money Bill as one which passes muster under Article 110 is a breach of a substantive constitutional provision, a violation of constitutional process and hence, an illegality.

88. The basic postulate of our Constitution is that every authority is subservient to constitutional supremacy. No authority can assume to itself the ultimate power to decide the limits of its own constitutional mandate. Judicial review is intended to ensure that every constitutional authority keeps within the bounds of its constitutional functions and authority. In holding a constitutional institution within its bounds, judicial review does not trench upon the doctrine of separation of powers. The adjudicatory power vests in the Supreme Court as a constitutional court. In adjudicating on whether there has been a violation of a constitutional mandate in passing a Bill as a Money Bill, judicial review does not traverse beyond the limit set by the separation of powers. On the contrary, the independence of judicial tribunals has been consistently recognised by this Court as an inviolable feature of the basic structure of the Constitution. Determination of the norms of eligibility, the process of selection, conditions of service, and those regulating the impartiality with which the members of the tribunals discharge their functions and their effectiveness as adjudicatory bodies is dependent on their isolation from the executive. By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-effacement by Parliament. The conferment of the power to frame rules on the executive has a direct impact on the independence of the tribunals. Allowing the executive a controlling authority over diverse facets of the tribunals would be destructive of judicial independence which constitutes a basic feature of the Constitution. F.2 Violation of directions issued by this Court G

89. The Rules under Section 184 of the Finance Act 2017, termed the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017 were notified on 1 June 2017. Rule 1 (3) provides for the applicability of the rules in the following terms: H

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A “(3) These rules shall apply to the Chairman, Vice-Chairman, Chairperson, Vice- Chairperson, President, Vice- President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member, Member of the Tribunal, Appellate B Tribunal or, as the case may be, Authority as specified in column (2) of the Eighth Schedule of the Finance Act, 2017 (7 of 2017).”

90. Rule 3 prescribes the qualifications for appointment to those tribunals which are specified in Column 3 of the Schedule. Rule 4 provides that the method of recruitment is specified in Column 4 of the C Schedule. Rule 7 provides for the removal of a member from office by the Central Government “on the recommendation of a committee constituted by it in this behalf”. Rule 8 provides for the procedure for enquiry into an alleged misbehaviour or incapacity of a member. It contemplates a preliminary scrutiny by the Ministry or the Department of the Government of India under which the tribunal or appellate tribunal D is constituted or established. Upon finding that there are reasonable grounds in an inquiry, a reference is made to the committee constituted under Rule 7. After the conclusion of the enquiry, the committee is to submit its report to the Central Government with its findings. Rule 9 provides for the term of office as specified in Column 5 of the Schedule E with a cap on age as specified in Column 6. Rule 11 provides for a fixed salary of Rs 2.50 lakhs together with allowances and benefits admissible to a Central Government officer holding an office carrying the same pay in the case of the Chairperson or President or Presiding Officer of SAT. A consolidated salary of Rs 2.25 lakhs is payable to F Vice Chairpersons, Vice Presidents and Members. Column 4 of the Schedule stipulates the composition of the Search-cum-Selection Committee for the various tribunals. The Search- cum-Selection Committee of the Industrial Tribunal is as follows: “Search-cum-Selection Committee for the post of the Presiding G Officer, - (i) a person to be nominated by the Central Government chairperson; (ii) Secretary to the Government of India, Ministry of Labour and Employment- member; (iii) Secretary to the Government of India to be nominated by the Central Government- member; (iv) two experts to be nominated by the Central H Government- members.”

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It is evident that the Search-cum-Selection Committee is constituted entirely from personnel within or nominated by the Central Government. Barring the National Company Law Appellate Tribunal, the Search-cum-Selection Committee for all other seventeen tribunals specified in the Schedule is constituted either entirely from personnel within or nominated by the Central Government or comprises a majority of personnel from the Central Government. The Search-cum-Selection Committee of the National Company Law Appellate Tribunal consists of an equal number of members from the judiciary as well as from the Central Government with no casting vote to the Chief Justice of India or their nominee: “(B) Search-cum-Selection Committee for the post of the Judicial C Member and Technical Member of the Appellate Tribunal, - (i) Chief Justice of India or his nominee -chairperson; (ii) a senior Judge of the Supreme Court or a Chief Justice of a High Court- member; (iii) Secretary to the Government of India, Ministry of Corporate Affairs- member; (iv) Secretary to the Government D of India, Ministry of Law and Justice-member.” The procedure for selection is fundamentally destructive of judicial independence. The Union Government has vital status in the disputes before many tribunals. Even otherwise, conferring upon the government such a dominating and overwhelming voice in making appointments is a negation of judicial independence.

91. Sub-rule 2 of Rule 4 of the 2017 Rules stipulates that the Secretary to the Government of India in the Ministry or Department shall be the Convener of the Search-cum-Selection Committee. In R Gandhi, the Court specifically issued the following directions in regard to the constitution of the Selection Committees: “(viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary G in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee—Chairperson (with a casting vote); H

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A (b) A Senior Judge of the Supreme Court or Chief Justice of High Court—Member; (c) Secretary in the Ministry of Finance and Company Affairs—Member; and (d) Secretary in the Ministry of Law and Justice— B Member.” (Emphasis supplied) Significantly, Section 10 (FX) which was inserted into the Companies Act 1956 by the Companies (Second Amendment) Act 2002 C relating to the Constitution of NCLT and NCLAT contained the following provision: “10-FX. Selection Committee.—(1) The Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal shall be appointed by the Central Government on D the recommendations of a Selection Committee consisting of— (a) Chief Justice of India or his nominee Chairperson; (b) Secretary in the Ministry of Finance and Company Affairs Member; E (c) Secretary in the Ministry of Labour Member; (d) Secretary in the Ministry of Law and Justice (Department of Legal Affairs or Legislative Department) Member;

F (e) Secretary in the Ministry of Finance and Company Affairs (Department of Company Affairs)” Member

92. In Madras Bar Association, Section 7 of the National Tax Tribunal Act 2005 provided for the process of selection and appointment G of the Chairperson and members of the NTT. The Court observed that as the jurisdiction of the High Courts was being transferred to the Tribunal, the stature of the members, conditions of service, and manner of appointment and removal of members must be akin to that of the judges of High Courts. Section 7 was held to be invalid (among other provisions). The leading judgment of the majority by Justice J S Khehar H (as the learned Judge then was) held:

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“131. Section 7 cannot even otherwise be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention that the interests of the Central Government would be represented on one side in every litigation before NTT. It is not possible to accept a party to a litigation can participate in the selection process whereby the Chairperson and Members of the adjudicatory body are selected. This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All C ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature. For all the reasons recorded hereinabove, we hereby declare Section 7 of the NTT Act, as unconstitutional.”

93. The constitution of the Search-cum-Selection committees as stipulated in the Schedule to the 2017 Rules cannot pass constitutional muster under a system governed by the rule of law that accords primacy to the independence of the judiciary. Independence of the judiciary requires that judicial functioning be free from interference by the other two organs of the state. The Central Government is the largest litigant before the tribunals constituted under various statutes. The F independent functioning of the tribunals stands compromised where the executive has the controlling authority in the selection of members to the tribunals. The executive is often a litigant before and has an interest in the disputes which are adjudicated by the tribunals. The constitution of the Search-cum-Selection committees stipulated in the 2017 Rules violates the principle of judicial independence and the directions issued G by this Court in R Gandhi and Madras Bar Association.

94. Column 5 of the Schedule to the 2017 Rules stipulates that the term of office shall be three years for all tribunals. This disregards the principle enunciated by this Court in R Gandhi. By the judgment of this Court, the following direction was issued: H

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A “(ix) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the field concerned. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. B Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.” Rule 18(2) stipulates that members who have been appointed to tribunals shall not practice before the tribunal, appellate tribunal or the authority after retirement. We are in agreement with the views expressed by this Court in R Gandhi. Inherent in the efficient functioning of tribunals is that appointment to tribunals is made attractive to practicing individuals who are guaranteed a reasonable period of service.

95. Section 184 stipulates that the Chairperson, Vice-Chairperson, E Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority is eligible for reappointment. This is restated in Rule 9. This is in violation of the direction issued by this Court in Madras Bar Association where Section 8 which provided for reappointment was struck down in the following terms: F “132. Insofar as the validity of Section 8 of the NTT Act is concerned, it clearly emerges from a perusal thereof that a Chairperson/Member is appointed to NTT, in the first instance, for a duration of 5 years. Such Chairperson/Member is eligible for reappointment for a further period of 5 years. We have no hesitation to accept the submissions advanced at the hands of the learned counsel for the petitioners, that a provision for reappointment would itself have the effect of undermining the independence of the Chairperson/ Members of NTT. Every Chairperson/Member appointed to NTT would be constrained to decide matters in a

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manner that would ensure his reappointment in terms of A Section 8 of the NTT Act. His decisions may or may not be based on his independent understanding. We are satisfied that the above provision would undermine the independence and fairness of the Chairperson and Members of NTT. Since NTT has been vested with jurisdiction B which earlier lay with the High Courts, in all matters of appointment, and extension of tenure, must be shielded from executive involvement. The reasons for our instant conclusions are exactly the same as have been expressed by us while dealing with Section 5 of the NTT Act. We therefore hold that Section 8 of the NTT Act is unconstitutional.” C (Emphasis supplied) Rule 20 vests the Central Government with vast powers to relax the provisions of the applicable rules: “Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons.”

96. The Central Government to whom a rule making authority was conferred by Section 184 has not observed the principles which were enunciated in R Gandhi and Madras Bar Association either in letter or in spirit. The dangers inherent in conferring such an unguided power on the executive to frame rules governing the selection, appointment and conditions of service of the members of the tribunals is evident from the rules which have been framed. The rules disregard binding principles enunciated in decisions of this court. The rules are destructive of judicial independence and are unconstitutional.

97. Before concluding, it is necessary to advert to two pre-eminent authorities which were adverted to in the decisions in R Gandhi and in the concurring judgment in Madras Bar Association. In R Gandhi, Justice RV Raveendran observed: G “112. What is a matter of concern is the gradual erosion of the independence of the judiciary, and shrinking of the space occupied by the judiciary and gradual increase in the number of persons belonging to the civil service discharging functions and exercising jurisdiction which was previously exercised by the High H

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A Court. There is also a gradual dilution of the standards and qualification prescribed for persons to decide cases which were earlier being decided by the High Courts.” The learned Judge referred to the cautionary words of Justice William O Douglas, a distinguished judge of the US Supreme Court: B “52.The need for vigilance in jealously guarding the independence of courts and Tribunals against dilution and encroachment, finds an echo in an advice given by Justice William O. Douglas to young lawyers (The Douglas Letters: Selections from the Private Papers of William Douglas, edited by Melvin L. Urofsky, 1987 C Edn., p. 162, Adler and Adler): “… The Constitution and the Bill of Rights were designed to get Government off the backs of people—all the people. Those great documents did not give us the welfare State. Instead, they guarantee to us all the rights to personal and spiritual self- D fulfilment. But that guarantee is not self-executing. As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change E in the air—however slight—lest we become unwitting victims of the darkness.” In Madras Bar Association, Justice Rohinton Nariman, in the course of his concurring judgment, adverted to a decision of Lord Atkin:

F “178. In Proprietary Articles Trades Assn. v. Attorney General for Canada [1931 AC 310 (PC)] , Lord Atkin said: (AC p. 317) “… Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires; nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment.”

98. We find that though the decision in R Gandhi was delivered in 2010 and in Madras Bar Association in 2014, the same anomalies have persisted. An attempt has been made to dilute judicial independence by a creeping assertion of executive power. This is unconstitutional.

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

F.3 Severability A

99. The learned Attorney General submitted that the certification of the Speaker of the Bill as a Money Bill attaches to the entirety of the Finance Bill. Hence, it was urged, that the consequence of accepting the submission of the petitioners would result in the invalidation of the entire Finance Act. We are of the view that this Court should apply B the doctrine of severability to Part XIV of the Finance Act 2017. Severability was applied in a judgment of this Court in R.M.D. Chamarbaugwalla v Union of India (“Chamarbaugwalla”) 55. Justice Venkatarama Ayyar, speaking for a Constitution Bench of this Court observed: C “12. The question whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid, is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, Sections 91 and 92 of the Canadian Constitution, and Section 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? G The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.” 55 1957 SCR 930 H

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A Adverting to the decision in State of Bombay v F N Balsara56, the Constitution Bench observed: “This decision is clear authority that the principle of severability is applicable even when the partial invalidity of the Act arises by reason of its contravention of constitutional limitations.”

B 100. In State of Bombay v United Motors (India) Ltd.57, Chief Justice Patanjali Sastri held that the doctrine of severability should be extended in dealing with taxing statutes. After adverting to these decisions in Chamarbaugwalla, Justice Venkatarama Ayyar concluded: “21…The resulting position may thus be stated: When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions.” The principles which govern the exercise of the doctrine of severability have been formulated thus: “22…

1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, F p. 156; Sutherland on Statutory Construction, Vol. 2 pp. 176-177.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity G of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld 56 1951 SCR 682 H 57 1953 SCR 1069

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

notwithstanding that the rest has become unenforceable. A Vide Cooley’s Constitutional Limitations, Vol. I at pp. 360- 361; Crawford on Statutory Construction, pp. 217-218.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a D statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley’s Constitutional Limitations, Vol. I, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178.”

101. In the present case, applying these principles enunciated above, Part XIV of the Finance Act 2017 is severable. The intent of the legislature is the guiding principle under the first of the above H

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A principles. Parliament would, in any event, have enacted the valid parts of the Finance Act 2017 if it had known that Part XIV is invalid. The valid and invalid parts are not so inextricably linked that the invalidity of Part XIV should result in the invalidity of the rest. Nor is Part XIV a part of a composite scheme linked to the other parts of the Finance Act 2017. Even after the excision of Part XIV the remaining part of the Finance Act would still survive on its own. Hence, Part XIV of the Finance Act 2017 can be excised from the Act.

102. Finally, a fervent plea was made by the learned Attorney General to the effect that even though some provisions contained in the Rules framed on 1 June 2017 may run contrary to the principles enunciated by this Court in R Gandhi and Madras Bar Association, the Central Government would be willing to proceed on the basis of the interim orders which were passed by this Court during the pendency of the proceedings with certain modifications. We are unable to accept the submission. Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill. The rules framed by the Central Government are unconstitutional on the ground that they violate the principles of judicial independence set out in judgments of this Court. G Conclusion

103. Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill. The rules which have been framed pursuant of the rule making power under Section 184 are held to be unconstitutional. However, since during the pendency of these proceedings, certain steps were taken in pursuance of the interim orders and appointments have been made, we direct that those appointments shall not be affected by the declaration of unconstitutionality. The terms and conditions governing the personnel so appointed shall however abide by the parent enactments. Upon the declaration of unconstitutionality, the conditions specified in all corresponding aspects in the parent enactments shall continue to operate.

G 104. This Court has repeatedly emphasised the need for setting up an independent statutory body to oversee the working of tribunals. Despite the directions issued by this Court in Chandra Kumar nearly two decades ago, no action has been taken by the legislature to put in place an umbrella organisation which would be tasked with addressing the drawbacks of the system to which we have adverted above. The H lack of a single authority to ensure competence and uniform service

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

conditions has led to a fragmented tribunal system that defeats the A purpose for which the system was constituted. Moreover, the co- ordinating authority for all tribunals must be the Department of Justice. Vesting that function in individual ministries has led to haphazard evolution of the tribunal structure, besides posing serious dangers to the independence of tribunals. B

105. It is imperative that an overarching statutory organisation be constituted through legislative intervention to oversee the working of tribunals. We recommend the constitution of an independent statutory body called the “National Tribunals Commission”58 to oversee the selection process of members, criteria for appointment, salaries and C allowances, introduction of common eligibility criteria, for removal of Chairpersons and Members as also for meeting the requirement of infrastructural and financial resources. The legislation should aim at prescribing uniform service conditions for members. The Commission should comprise the following members: D (i) Three serving judges of the Supreme Court of India nominated by the Chief Justice of India; (ii) Two serving Chief Justices or judges of the High Court nominated by the Chief Justice of India; (iii) Two members to be nominated by the Central E Government from amongst officers holding at least the rank to a Secretary to the Union Government: one of them shall be the Secretary to the Department of Justice who will be the ex-officio convener; and (iv) Two independent expert members to be nominated by F the Union government in consultation with the Chief Justice of India.

106. The senior-most among the Judges nominated by the Chief Justice of India shall be designated as the Chairperson of the NTC. G

107. While the setting up of the NTC is within the competence of the legislature, it must be ensured that the guidelines that have been laid down by this Court to ensure the independence and efficient functioning of the tribunal system in India are observed. The 58 “NTC” H

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A independence of judicial tribunals is an inviolable feature of the basic structure of the Constitution. The procedure of selection, appointment, removal of members and prescription of the service conditions of tribunal members determine the independence of the tribunals. As we have held, in preserving the independence of the tribunals as a facet of judicial independence, the adjudicatory body must be robust: subservient to none and accountable to the need to render justice in the context of specialized adjudication. This is reflected in the need for vigilance in guarding the independence of courts and tribunals.

108. Competence, professionalism and specialisation are indispensable facets of a robust tribunal system designed to deliver specialised justice. The Commission must be vested with the power to oversee the administration of all tribunals established under the enactments of Parliament to ensure the adequate manning of the tribunals with the infrastructure and staff required to meet the exigencies of the system. The Union government should also consider formulating D a law to ensure the constitution of an All India Tribunal Service governing the recruitment and conditions of service of the non- adjudicatory personnel for tribunals. At present, the administrative staff of the tribunals is by and large brought on deputation. The tribunals are woefully short of an adequate complement of trained administrative E personnel. Hence, there is an urgent need to set up an All India Tribunal Service in the interests of the effective functioning of the tribunal system. Though the present judgment analyses the ambit of the word “only” in Article 110(1) and the interpretation of sub-clauses (a) to (g) F of clause (1) of Article 110 and concludes that Part XIV of the Finance Act 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of money bill to a larger Bench and direct accordingly. G I am in agreement with the observations of brother Justice Deepak Gupta that the qualifications of members to tribunals constitute an essential legislative function and cannot be delegated. Tribunals have been conceptualized as specialized bodies with domain-specific knowledge expertise. Indispensable to this specialized adjudicatory H function is the selection of members trained in their discipline. Keeping

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this in mind, the prescription of qualifications for members of tribunals is a legislative function in its most essential character. The qualifications for appointment to adjudicatory bodies determine the character of the body. The adjudicatory tribunals are intended to fulfil the objects of legislation enacted by Parliament, be it in the area of consumer protection, environmental adjudication, industrial disputes and in diverse aspects of economic regulation. Defining the qualifications necessary for appointment of members constitutes the core, the very essence of the tribunal. This is an essential legislative function and cannot be delegated to the rule making authority of the central government. It is for the legislature to define the conditions which must be fulfilled for appointment after assessing the need for domain specific knowledge.

DEEPAK GUPTA, J.

1. I have had the privilege of going through the detailed and erudite judgments of the Chief Justice and brother Chandrachud, J.

2. Since the entire gamut of facts, submissions and laws have been dealt with in the judgment of Chief Justice, for the sake of brevity, it would not be necessary to set out all the facts and contentions in detail. E

3. Reference in this judgment to ‘Tribunal’ will include tribunal, appellate tribunal or other authorities referred to in Part XIV of the Finance Act, 2017. Reference to ‘Chairpersons/Members’ will include Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President or other members referred to in Section 184 of the F Finance Act, 2017. Some tribunals have both regulatory as well as adjudicatory roles. Most of the discussion hereinafter relates to the adjudicatory role of tribunals.

4. The order dated 27.03.2019 quoted in the judgment of the Chief Justice clearly sets out the issues with which the present bench G is concerned. To put it in a nutshell, the issue before this Court is whether tribunals are an effective alternative to Courts; if yes, who should man them. Keeping in view the ever-changing developments in law and the provisions of Articles 323-A and 323-B of the Constitution of India, tribunals as an alternative to Courts, have come to stay. The main issue H

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A is how to ensure that these tribunals function effectively, fearlessly and efficiently.

5. The Chief Justice in his judgment has culled out the following issues for determination:- I. Whether the ‘Finance Act, 2017’ insofar as it amends certain other enactments and alters conditions of service of persons manning different Tribunals can be termed as a ‘money bill’ under Article 110 and consequently is validly enacted? II. If the answer to the above is in the affirmative then whether Section 184 of the Finance Act, 2017 is unconstitutional on account of Excessive Delegation? III. If Section 184 is valid, Whether Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of D Members) Rules, 2017 are in consonance with the Principal Act and various decisions of this Court on functioning of Tribunals? IV. Whether there should be a Single Nodal Agency for administration of all Tribunals? E V. Whether there is a need for conducting a Judicial Impact Assessment of all Tribunals in India? VI. Whether judges of Tribunals set up by Acts of Parliament under Articles 323-A and 323-B of the F Constitution can be equated in ‘rank’ and ‘status’ with Constitutional functionaries? VII. Whether direct statutory appeals from Tribunals to the Supreme Court ought to be detoured? VIII. Whether there is a need for amalgamation of existing G Tribunals and setting up of benches.

6. By and large I am in agreement with the reasoning and conclusions arrived at by the Chief Justice, especially on issues 1 and 3 to 8. I am, however, unable to persuade myself to agree with the Chief Justice that Section 184 of the Finance Act of 2017 does not H suffer from the vice of excessive delegation. I am also of the view

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that though the issue with regard to the Money Bill may be referred to A a larger bench of 7 judges, since the correctness of the law laid down in L. Chandrakumar v. Union of India1 has not been doubted, there is no need to refer this matter to a bench of 7 judges.

7. I also feel that some specific directions need to be given for appointment of a body to carry out judicial impact assessment. It may also be necessary to lay down some parameters or reference points for such a body to look into. I am of the view that since the Government till date has not followed the recommendation of 7-Judge Bench of this Court in L. Chandra Kumar (supra) that there should be a wholly independent agency for the administration of all tribunals, some directions in this regard are required. Lastly, I feel that a direction needs to be given to constitute a body to select the Chairpersons/Members of the Tribunals.

8. Before entering into a detailed discussion on the issues involved, I would like to highlight that there are some glaring errors in Part XIV which clearly show non-application of mind. D

9. Section 9A of the Armed Forces Tribunal Act, 2007 was introduced by Section 181 of the Finance Act, 2017 and reads as follows: “9A. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, E resignation, removal and terms and conditions of service of the Chairperson and other Members of the Appellate Tribunal appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall be governed by the provisions of section 184 of that Act: F Provided that the Chairperson and Member appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force.” (emphasis supplied) G

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A Tribunal Act, 2007 has no provision for an appellate tribunal. In fact, Section 6 of the Armed Forces Tribunal Act, 2007 itself provides the qualifications for appointment for Chairperson and other members and it is not clear what was sought to be achieved by introducing Section 9A by the Finance Act, 2017. B Background

10. On 26.11.1949, we, the people of India gave unto ourselves the Constitution, the basic features of which amongst others are judicial review2, democracy, separation of powers3 etc. These basic features of the Constitution are an inherent part of our Constitution and polity.

C 11. Part III of the Constitution which sets out the fundamental rights has often been referred to as the heart and soul of the Constitution. In my view, the essence of the Constitution was beautifully captured by our founding fathers in the Preamble of the Constitution where we promised to ourselves Justice, Liberty, Equality and Fraternity. The first and foremost attribute of the Preamble is Justice. India should be a democratic republic is also a part of the Preamble. The ultimate power under our Constitution resides with the people and not those holding positions of power.

12. The rule of law is the golden thread which runs through our Constitution. This golden thread binds together the various chapters of the Constitution dealing with Citizenship, Fundamental Rights, the Union, the States, the Panchayats, Scheduled and Tribal Areas, Relations between Union and States, Trade, Commerce and Intercourse within the Territory of India, Services under the Union and States etc. Each of these facets amongst others are governed not only by the Constitution F but by the laws. The oath, to which each one of us, holding Constitutional posts, subscribes enjoins us to uphold the Constitution and the laws. This is the rule of law. The bedrock of our democracy is the rule of law and not the rule of men. Anywhere, anytime, when ordinary people are given the chance to choose, the choice is always the same; freedom, not tyranny; democracy, not dictatorship; rule of law, not the rule of G men.

13. One of the essential ingredients of both democracy and rule of law is an independent and fearless judiciary. A free and vibrant 2 Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 H 3 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

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