During the debate on the now-deferred Judges (Assets and Liabilities)Bill, 2009, the Leader of the Opposition in the RS, Arun Jaitley made the point that it was perhaps the first time a Bill, before it was introduced in the House, was circulated to judiciary to secure its consent, and it was on its insistence that the objectionable clause 6 denying public access to Judges' assets declaration, had been introduced. He was suggesting that such a step could have compromised the legislative competence of Parliament. The Law Minister, in his reply, denied that the Bill was circulated among the Judiciary before its introduction.
Not all Bills are opposed at the introduction stage, on the ground that they are ultra vires.. Therefore, the opposition to the introduction of the Judges Bill makes one curious. The Minister denied the suggestion that the Bill was ultra vires.
He also claimed that Entries 77 and 78 (wrongly printed in the debates as 28) of the Union List provide for this. I remember during the debate on the First Amendment in the Lok Sabha, specific suggestions were made by some Members that the Bills could be vetted by the Supreme Court, before they were introduced, so as to make sure they were not ultra vires. Those Members were opposing the inclusion of the Ninth Schedule in the Constitution, to keep certain laws out of Judicial review. The Law Minister may be correct that the Bill was not circulated among the Judiciary. But did he discuss the contents of the Bill with the CJI and his brother Judges informally? It also raises the question whether it is wrong to discuss a Bill with its stake-holders before it is introduced. Obviously, there is no harm if a Draft Bill is circulated among the Judiciary to elicit its views.
The Law Minister, in defence of clause 6, has said the Bill only gives statutory support to the in-house mechanism of the Judiciary for declaration of assets. Therefore, if the in-house mechanism is not ultra vires, then the Bill cannot be opposed on that ground.
The Deputy Chairman has cited a 1947 ruling of the Speaker, Lok Sabha and 1956 ruling of the Rajya Sabha Chairman to suggest that he must allow the introduction of the Bill, if the Minister wanted, and it was for the House to reject it. Sensing the mood of the House in which the ruling party does not enjoy a clear majority, the Minister deferred the introduction of the Bill. But the question, though academic, remains: Can the Members insist on a vote to oppose the introduction of a Bill in the House? What if Moily insisted on introducing the Bill, and the Members wanted a division on the question of introduction? Was the Dy.Chairman left with no precedent to rely on?
Parliament's website has this to say on the First Reading a of Bill:
The legislative process starts with the introduction of a Bill in either House of Parliament-Lok Sabha or Rajya Sabha. A Bill can be introduced either by a Minister or by a private member. In the former case it is known as a Government Bill and in the latter case it is known as a Private Member's Bill.
It is necessary for a member-in-charge of the Bill to ask for leave to introduce the Bill. If leave is granted by the House, the Bill is introduced. This stage is known as the First Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may, in his discretion, allow brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Where a motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation outside the legislative competence of the House, the Speaker may permit a full discussion thereon. Thereafter, the question is put to the vote of the House. However, the motion for leave to introduce a Finance Bill or an Appropriation Bill is forthwith put to the vote of the House.
Clearly, on August 3, the Members were questioning the legislative competence of the House before the introduction of the Bill. Therefore, was the Deputy Chairman correct to rely on the 1947 and 1956 precedents to suggest that he had to allow the Minister to introduce the Bill, if he wanted?
The Rajya Sabha debate on introduction of the Judges (Declaration of Assets and Liabilities) Bill, 2009 [pp.26-38][Synopsis: 561-562]
The CJI here admits that the Judiciary wanted such a Bill, and defends it without suggesting that he had gone through the draft Bill.