Polity: Parliament, the executive, the judiciary and dispute redressal

Article 143 lets the President refer a question of law to the Supreme Court. The Court gives an opinion, not a judgment.

The nature of the power

A reference, not a case: There is no private litigation or opposing sides.

The Court may decline: Under Article 143(1) it may refuse to answer, giving reasons.

One clause differs: Under Article 143(2), on old treaties, the Court must report.

How it differs from Article 141

Article 141 binds: Law declared by the Court binds every court below it.

Advisory opinion under Article 141: It is advisory, and the President is free not to act on it.

It cannot reopen a judgment: The Cauvery reference, 1993 held that a settled ruling cannot be reconsidered this way.

A recent instance: In 2025 the Court advised that no timeline can be fixed for a Governor.

An advisory opinion carries the authority of the Court without the force of a judgment. It persuades where a judgment would command.

Decode

Two demands. The nature of the power, and the contrast with Article 141.

Implicit demand

The contrast is the heart of it. One is advice, the other is binding law.

Architecture

What Article 143 is → the nature of the power → the contrast → a recent example → verdict.

Articulation

Anchor: Article 143(1) and (2), Article 141, the Ayodhya and Cauvery references. Money line: it persuades where a judgment would command.

The nature of the power

The Court sits in advisory jurisdiction. It is not exercising judicial power in the strict sense.

A reference is heard by a bench of five judges, under Article 145(3).

In Special Reference No. 1 of 1993 returned the Ayodhya question, calling it unnecessary and opposed to secularism.

In Special Reference No. 1 of 1998, the Third Judges case, is an advisory opinion that shaped the collegium.

Article 143(2) covers disputes on agreements made before the Constitution came into force.

How it differs from Article 141

Article 141 speaks of law declared by the Supreme Court. It binds all courts below.

The Court is not bound by its own advisory opinion in a later case.

In Cauvery Water Disputes Tribunal, 1993: Article 143 cannot review a binding decision.

Advisory opinions have still settled major questions, such as the Third Judges case.

A High Court has no advisory jurisdiction. Only the Supreme Court holds this power.

References worth remembering

Delhi Laws Act, 1951 on how far legislative power may be delegated.

Kerala Education Bill, 1958 on minority rights in education.

Berubari Union, 1960 held that ceding territory needs a constitutional amendment.

Special Courts Bill, 1978 on the validity of a proposed special court.

2G Presidential Reference, 2012: auction is not the only method of allocating resources.

The Tenth Schedule came with the 52nd Amendment, 1985. It disqualifies a member for defection.

The grounds

Giving up membership: A member who voluntarily gives up membership of the party stands disqualified.

Defying the whip: Voting or abstaining against a party direction attracts disqualification.

With one window: The party may condone the act within fifteen days.

Independents and nominated members: An independent who joins a party is out. A nominated member gets six months.

The only exemption: A merger, where two thirds of the legislature party agree.

The split defence is gone: The 91st Amendment, 2003 removed the one third split exception.

The problem with the Speaker

A party person decides: The Speaker holds office on the strength of a party majority.

The Court saw the risk: Kihoto Hollohan, 1992 upheld the scheme, but the minority doubted the Speaker.

Review survives: The same case struck down the clause that barred courts.

Delay is the real weapon: A Speaker who does not decide lets a defector serve the full term.

The Court has said so: Keisham Meghachandra, 2020 asked Speakers to decide within three months.

Alternatives

An independent tribunal: A retired judge deciding petitions, as the Court itself suggested.

The Election Commission route: Follow Articles 103 and 192, where the President or Governor acts on its opinion.

Narrow the whip: Apply it only to money bills and confidence motions, as the Law Commission proposed.

The grounds are clear enough. The forum is not. An impartial question is decided by an interested office, and reform must begin there.

Decode

Three demands. Explain the grounds, test the forum, then suggest alternatives.

Implicit demand

The complaint is not about the grounds. It is about who decides, and when.

Architecture

The grounds → the problem with the Speaker → alternatives → verdict.

Articulation

Anchor: the 52nd and 91st Amendments, Kihoto Hollohan, Keisham Meghachandra, Articles 103 and 192. Money line: an impartial question is being decided by an interested office.

The grounds

Defection had been debated since 1967. The Tenth Schedule was the answer.

Ravi Naik v. Union of India, 1994 held that giving up membership can be inferred from conduct.

G. Viswanathan, 1996: a member expelled by his party still remains bound to it.

A member disqualified for defection cannot become a minister until reelected, after the 91st Amendment.

The Speaker is exempt if he gives up party membership on election.

The problem with the Speaker

Kihoto Hollohan v. Zachillhu, 1992 held the Speaker acts as a tribunal, so review lies.

Review is limited to mala fides, perversity and breach of natural justice.

Shrimanth Balasaheb Patil, 2019 struck down a Speaker's order barring members for the full term.

Subhash Desai, 2023 on Maharashtra criticised the delay and the recognition of a rival whip.

A Speaker seeking reelection depends on the same party whose defectors he must judge.

In several states the disqualification petition outlived the assembly itself.

Alternatives and reports

The Dinesh Goswami Committee, 1990 proposed decision by the President or Governor. The Election Commission would advise.

The Law Commission, 170th report proposed limiting the whip to confidence and money matters.

The National Commission to Review the Working of the Constitution made a similar recommendation.

The United Kingdom follows a convention that the Speaker resigns party membership on election.

A statutory deadline is the simplest fix. On default the case goes to a tribunal.

Article 110 defines a Money Bill. The list is exhaustive, and a bill must deal only with those matters.

What the article covers

Taxation: Imposing, abolishing, remitting or altering any tax.

Borrowing: Regulating the borrowing of money by the government.

The funds: Custody of the Consolidated Fund and the Contingency Fund.

Appropriation: Withdrawal of money, and declaring an expenditure charged on the fund.

Incidental matters: Anything incidental to the above heads, and nothing beyond.

Who decides: Under Article 110(3) the decision of the Speaker is final.

Why wrong certification matters

The Rajya Sabha loses its voice: It may only recommend changes within fourteen days.

No joint sitting: A Money Bill can never go to a joint sitting under Article 108.

The President cannot return it: Assent is effectively a formality.

So a whole House is bypassed: A wrong certificate removes the second chamber from the law making process.

How far courts may review

The early view: Mohd. Saeed Siddiqui, 2014 treated the Speaker's decision as beyond review.

The turn: Puttaswamy, 2018 reviewed the question, though the majority upheld the Aadhaar Act.

The dissent: Justice Chandrachud called that certification a fraud on the Constitution.

Still unsettled: Rojer Mathew, 2019 doubted the majority and referred the issue to a larger bench.

The pattern: Amendments to tribunals and to other laws have travelled through Finance Bills.

Finality is not the same as immunity. The Speaker decides, but a certificate that silences the Rajya Sabha must remain reviewable.

Decode

Three demands. The definition, the consequence of error, and the scope of review.

Implicit demand

The question is really about bicameralism. A wrong certificate silences a House.

Architecture

The definition → why wrong certification matters → how far review goes → verdict.

Articulation

Anchor: Article 110, Article 108, Mohd. Saeed Siddiqui, Puttaswamy, Rojer Mathew, the Finance Act route. Money line: finality is not the same as immunity.

What the article covers

Article 110(1) lists seven heads, from clause (a) to clause (g).

A Financial Bill is wider. It contains money matters along with other provisions.

Only a Money Bill carries the Speaker's certificate under Article 110(4).

A Money Bill starts only in the Lok Sabha, on the recommendation of the President.

Article 199 makes the same provision for the states. The assembly Speaker decides.

The cases

Mohd. Saeed Siddiqui v. State of UP, 2014 held the Speaker's decision final and not open to review.

Yogendra Kumar Jaiswal, 2016 followed the same view.

Puttaswamy v. Union of India, 2018 upheld the Aadhaar Act as a Money Bill by majority.

Rojer Mathew v. South Indian Bank, 2019 doubted that reasoning and referred it to a seven judge bench.

Kihoto Hollohan, 1992 supplies the principle. A finality clause does not oust judicial review.

Examples and the way ahead

Tribunal reforms were carried through the Finance Act, 2017.

Amendments to foreign contribution and money laundering law have also used Finance Bills.

Retrospective validation of past acts through a Finance Bill has been questioned in court.

A strict reading of clause (g) would prevent most of this. Incidental means incidental.

The larger bench reference is still awaiting decision, so this remains a live area.

A Joint Parliamentary Committee is set up by a motion in one House. The other House agrees to it. It rests on the rules of procedure.

Its place in the process

Two kinds: One examines a bill. The other inquires into a matter of public concern.

Clause by clause: The committee reads a bill line by line and proposes amendments.

Evidence is taken: Ministries, experts and affected groups appear before it.

Where it strengthens scrutiny

A worked example: The committee on the Insolvency and Bankruptcy Code reshaped the draft before passage.

Inquiry can expose: The committees on Bofors and on 2G took evidence no sitting could.

Where it postpones

Extensions accumulate: The committee on the data protection bill ran for over two years.

A bill can simply lapse: The land acquisition amendment bill died after repeated extensions.

Referral strengthens scrutiny. Prolonged referral can bury a bill without a vote. The cure is a fixed deadline for the report.

Decode

Examine the place, then answer a direct either or question.

Implicit demand

Do not choose one side. Referral and prolonged referral are different things.

Architecture

What it is → its place → where it strengthens → where it postpones → verdict.

Articulation

Anchor: the Insolvency and Bankruptcy Code, the Bofors and 2G inquiries, the data protection bill. Money line: prolonged referral can bury a bill without a vote.

Its place in the process

Members come from both Houses. The usual ratio is two from the Lok Sabha to one from the Rajya Sabha.

A Joint Committee differs from a Select Committee, which belongs to one House only.

The committee may summon persons and papers, and can call for departmental records.

Its report goes to both Houses. The government is not bound to accept it.

A bill pending before a committee lapses when the Lok Sabha is dissolved.

Where it strengthened a bill

Insolvency and Bankruptcy Code, 2016: the joint committee reworked the draft before it was passed.

Citizenship Amendment Bill, 2016: the joint committee took evidence across states.

Bofors, 1987 and the securities scam, 1992 are the best known inquiry committees.

The 2G inquiry, 2011 produced a divided report, which is itself a form of record.

The stock market scam inquiry, 2001 led to changes in market regulation.

Where it became delay

Personal Data Protection Bill, 2019: the committee took over two years. The bill was then withdrawn.

Land Acquisition Amendment Bill, 2015: extended repeatedly, and it lapsed.

An extension needs only a motion, and the House rarely refuses one.

Referral can also be refused. The farm laws of 2020 went to no committee at all.

A statutory deadline of six months, extendable once, would settle most of this.

Independence protects a judge from pressure. Accountability asks who watches the judge. The Constitution gives only one formal answer.

What accountability means here

To the law: A judgment must be reasoned, and it can be appealed.

To the public: Courts sit in open, and their orders are published.

To the institution: Conduct follows the Restatement of Values of Judicial Life, 1997.

The removal mechanism

The ground: Articles 124 and 217 allow removal only for proved misbehaviour or incapacity.

The process: A motion signed by 100 members of the Lok Sabha. Or 50 in the Rajya Sabha.

The inquiry: A committee under the Judges (Inquiry) Act, 1968 examines the charge.

The vote: A special majority in both Houses, followed by an address to the President.

Why it has never worked

No judge has been removed: Justice Ramaswami, 1993 survived when a party abstained in the House.

Resignation ends it: Justice Soumitra Sen resigned in 2011 after the Rajya Sabha voted.

The threshold is very high: Misbehaviour must be proved, and nothing lesser is available.

The in house procedure

What it does: The Chief Justice may seek a reply and appoint a committee of judges.

What it can order: It may advise resignation, or recommend that removal be set in motion.

It was used recently: In 2025 an in house inquiry into a High Court judge led to a motion.

Its weakness: It has no statutory basis, and the report is not always published.

The Constitution offers removal or nothing. A graded statutory mechanism, with removal kept for the gravest cases, would serve both independence and accountability.

Decode

Three demands. The concept, the removal mechanism, and the in house procedure.

Implicit demand

The gap is the absence of anything between doing nothing and removing a judge.

Architecture

What accountability means → the removal mechanism → why it has never worked → the in house procedure → verdict.

Articulation

Anchor: Articles 124 and 217, the Judges (Inquiry) Act, the Ramaswami and Soumitra Sen cases, the 2025 inquiry. Money line: the Constitution offers removal or nothing.

The removal mechanism

The inquiry committee has a Supreme Court judge, a Chief Justice and a jurist.

The special majority is a majority of the total membership. Two thirds of those voting must also agree.

Sub Committee on Judicial Accountability, 1991: the process is partly judicial, not wholly political.

Justice V. Ramaswami is the only judge against whom an inquiry committee found misbehaviour proved.

Justice P. D. Dinakaran resigned in 2011 while the inquiry was under way.

The same provisions apply to the Comptroller and Auditor General and the Chief Election Commissioner.

The in house procedure

It was adopted in 1997 along with the Restatement of Values of Judicial Life.

Additional District Judge v. High Court of Madhya Pradesh, 2015 recognised the procedure.

The Chief Justice may withdraw judicial work. That is the only interim sanction.

The report of the committee is not required to be published, which invites criticism.

A judge who has retired cannot be reached by the procedure at all.

Reform and the wider debate

The Judicial Standards and Accountability Bill, 2010 proposed a complaints scrutiny panel. It lapsed.

It would have allowed minor measures such as advisory warnings and censure.

CPIO v. Subhash Chandra Agarwal, 2019: the office of the Chief Justice is a public authority.

Declaration of assets by judges remains voluntary, on a 1997 resolution.

A cooling off period before post retirement appointments is a recurring proposal.

The NJAC judgment, 2015 struck down the appointment reform. Accountability reform must now come from within.