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Death of Bicameralism in India: The Tribunal Merging Plan

India, since the inception of its Republicanism, has adopted a parliamentary set up based upon bicameralism– a feature which is an unalterable part of the constitution. The federalist papers by James Madison are instructive on the need for a bicameral legislation – “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.”
Despite the foregoing, in order to expedite certain forms of legislations, specifically those concerning public expenditure and revenues, limitations are imposed upon the power of the Upper House. In the Indian Constitutional framework, such legislations are referred to as a ‘Money Bill’. Art. 110 of the Constitution provides an inclusive definition to the term ‘Money Bill’. In recent times, the route of the Money Bill is being abused to pass contentious laws which have no nexus with public expenditure or revenue. This is to bypass the check which the Upper House imposes upon the Lower House in passing tyrannical laws. The Speaker of the Lower House has the sole discretion to determine whether the said legislation falls within the ambit of a ‘money bill’ under Art. 110 of the Indian Constitution. However as legislative practice indicates, the Speaker of the house is ordinarily closely associated with the political party which enjoys the majority in the said house and therefore her discretion may foresee-ably be vitiated by bias. Owing to this, the Supreme Court of India has time and again circumscribed the discretion of the speaker’s by reducing it to the check of judicial review.
This trend became most palpable when the ruling party passed the Aadhaar Bill, which provided for creation of a Unique Identification Number for each citizen. The said Bill was introduced in the Lower House as a Money Bill thereby preventing the Upper House from checking its validity. Only recently, the Finance Bill of 2017 was passed which provided for merging the following tribunals.
  1. U/s 158 & 159 – Employees’ Provident Funds Appellate Tribunal with National Industrial Tribunal
  2. U/s 160 & 161 – Appellate Board of the Trade Mark Act with the Appellate Board of the Copyrights Act.  
  3. U/s 162 & 163 – Railway Rates Tribunal with Railway Claims Tribunal 
  4. U/s 164 & 165 – Appellate Tribunal for Forfeited Property with Appellate Tribunal for Foreign Exchange 
  5. U/s 166 & 167 – Airport Appellate Tribunal With National Highways Tribunal 
  6. U/s 168 & 169 –Cyber Appellate Tribunal with Telecom Disputes Settlement. 
  7. U/s 170 – Airport Regulatory Appellate Board with the Telecom Appellate Board 
  8. U/s 171 & 172 – Competition Law Appellate Tribunal with National Companies Law Tribunal. 
Interestingly, none of these tribunals were constituted through the money bill route. Consider the table below:
S. No.
Name of the Tribunals
Constituting Acts
Type of Bill
Year of Passing
1.
National Industrial Tribunal
Industrial Disputes Act
1947
2.
Employees’ Provident Funds Appellate Tribunal
Employees Provident Funds and Miscellaneous Provisions Act
Ordinary Bill
1952
3.
Appellate Board of the Trade Mark
Trade Marks Act
Ordinary Bill
1999
4.
Appellate Board of the Copyrights
Copyright Act
Ordinary Bill
1957
5.
Railway Rates Tribunal
 
 
1949
6.
Railway Claims Tribunal 
The Railway Claims Tribunal Act
Ordinary Bill
1987
7.
Appellate Tribunal for Forfeited Property
Smugglers and Foreign Exchange Manipulators Act
Ordinary Bill
1977
8.
Appellate Tribunal for Foreign Exchange 
Foreign Exchange Management Act
Ordinary Bill
1999
9.
Airport Appellate Tribunal
Airport Economic Regulatory Authority
Ordinary Bill
2008
10.
National Highways Tribunal 
The Control of National Highways (Land and Traffic) Act, 2002
Ordinary Bill
2002
11.
Cyber Appellate Tribunal
Information Technology Act
Ordinary Bill
2000
12.
Telecom Disputes Settlement
Telecom Regulatory Authority of India Act
Ordinary Bill
1997
13.
Airport Regulatory Appellate Board
Airport Economic Regulatory Authority
Ordinary Bill
2008
14.
Telecom Appellate Board 
Telecom Regulatory Authority of India Act
Ordinary Bill
1997
15.
Competition Law Appellate Tribunal
Competition Act
Ordinary Bill
2002
16.
National Companies Law Tribunal
Companies Act
Ordinary Bill
2013
This policy was implemented in tandem with the government’s strategy of minimum government, maximum governance. In 2016, the Inter-Ministerial Group presented a report to the government recommending that 36 tribunals could be combined to form 17 tribunals by a process of amalgamation. Previous Law Commission Reports have indicated a need to merge tribunals since many of them had overlapping functions and jurisdictions. However, some of these mergers seem ludicrous. For instance the one under S. 170 as well as the one under S. 171 & 172, which merge tribunals concerned with totally unconnected subject matter. Therefore, these mergers are counter intuitive to the very reason for which these tribunals had been formed i.e. constituting a specialised body to deliver an alternative efficacious remedy.  However, the specialised nature of these tribunals is being compromised.  For instance, the members of the NCLT are meant to have specific knowledge in the field of securitisation and company law, while those of the COMPAT ought to possess knowledge in economics and law. The NCLT is already overburdened with cases concerning the Companies Act, IBC, Mergers and Acquisitions etc. which has caused considerable backlog. Extending it to matters concerning Competition Law may undermine the adjudication of competition law disputes which in their very nature are special. Therefore some of the said mergers are neither necessary nor justified. 
A question emerges – can a law providing for the said mergers be validly brought under the purview of a “Money Bill”? The recent Puttaswamy judgment (5 judge bench constituted for the Aadhaar case) is authoritative in that regard. While the judgment was unanimous that for a legislation to be construed as a Money Bill, each and every provision of the said Bill ought to fall within the purview of Art. 110 of the constitution, the judges differed on the standard of test applicable for such a determination. While the majority held the applicability of the “predominant object” test, the lone dissenter applied the “pith and substance test”.
It would pe prudent to employ the ‘predominant object test’ to determine if the concerned provisions of the Finance Act 2017 were validly legislated. As per the objects of the Act, it aims to give “effect to the financial proposals of the Central Government for the Financial Year 2017-2018”. Given the said objects, Sections 156-189, which provide for the tribunal merger plan, appear ultra vires.
The Attorney general contends that the said provisions fall within the ambit of Art. 110(1)(c)[which deals with the payments of money into or withdrawals from the Consolidated Fund of India] since mergers of these tribunals are innately linked with the service conditions of its members and staff, including their remuneration which is drawn from the Consolidated Fund of India.
However, such a reasoning is absurd since the provisions effecting the merger of tribunals are easily severable from those providing for the service conditions of their members. Rather the aim of the merger is arguably wider i.e. to reduce the possibility of forum shopping and ensuring that tribunals don’t share complementary jurisdiction. Therefore, it has no nexus with the service conditions of its members. If such a week standard of review is to be followed then all legislations will end up being validly passed by usurping the constitutionally mandated power of the lower house. Therefore the nexus between the ‘predominant object’ of a Bill and the conditions stated under Art. 110 ought to be foreseeable instead of distant. Otherwise, it could pose a grave threat to the internal check within the legislature which prevents one assembly to act arbitrarily. On these grounds, it would not be wrong to suggest that the tribunal merging plan is a fraud on the Indian Constitution which sets a dangerous precedent for the fate of the Upper House.

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ABOUT THE AUTHOR(S)

 

Ms. Vrinda Aggarwal is a Fifth Year Law Student (BA-LLB) at Jindal Global Law School, Sonipat, Haryana.

 

 

 

 

 

 

 

 

 

 

Mr. Advik Rijul Jha is a Fifth Year Law Student (BA-LLB) at Jindal Global Law School, Sonipat, Haryana.

 

 

 

 

In Content Picture Credit: Newsnation

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