In a challenge to the replacement of governors of states as political decisions, courts have ruled that no decision of the government, including a decision to replace a governor can be arbitrary, yet ruling that the decision cannot be interfered with. It is likely that the pending litigation over whether legislation that are nowhere near Money Bills can be passed by Parliament as if they were Money Bills, would meet the same fate.
This contrivance aimed at simply circumventing the Rajya Sabha has been resorted to in the past. The Foreign Exchange Management Act, 1999, had been passed by both Houses of Parliament as a non-criminal law to replace the dreaded criminal law contained in the Foreign Exchange Regulation Act, 1974. That was not a Money Bill. That had been a major milestone in India’s legislative and economic policy history. Two years ago, provisions criminalising exchange controls were brought into FEMA through a Money Bill. No consent of the Rajya Sabha was taken.
These infractions of law were not challenged since they were not politically correct for challenge. Now that a bigger gauntlet has been thrown, it is possible that some may challenge it. The history of constitutional challenges to the creation of tribunals has itself had a chequered history at the hands of courts. The National Tax Tribunal could not be set up due to such a challenge. The National Company Law Tribunal could indeed be set up although in its new form it is in conflict with earlier rulings of the Supreme Court rendered when dealing with earlier attempts to set up the Tribunal. There are as many views on interpreting the Constitution as there can be benches of the Supreme Court and of multiple high courts.
All of this is not to say that all the changes sought to be brought in are bad. There are some laudatory amendments — one is the retirement age of the presiding officer has been extended to 70 years. Some changes are horrible. The tribunals listed in the Finance Act, 2017, are not the only ones whose constitution has been disturbed. A provision entitling government to similarly merge other tribunals not named for now, by a simple executive fiat has also been passed as a part of the Money Bill.
The Finance Act, 2017, is a quiet power-grab in the conflict between arms of the state. If the judiciary wrested control back by striking down the National Judicial Appointments Commission, the executive has sought to strike back by giving itself powers over vast areas of quasi-judicial territory.