New Delhi: President Droupadi Murmu has sought the Supreme Court’s opinion or clarification on whether fixed timelines can be imposed by the judiciary on the President and Governors of states for granting assent to bills without any constitutional provision to that effect.
The Presidential Reference with 14 questions on the matter has been sought under Article 143(1) of the Constitution, which entails the President’s power to consult the top court in certain situations.
The President’s questions refer to the top court’s landmark ruling from 8 April in the plea against Tamil Nadu Governor R.N. Ravi by the state government for withholding assent to 10 bills passed by the assembly. A two-judge bench had ruled that Governors cannot sit over bills passed by the state legislature, while imposing a timeline of three months for them to give their assent. In the same order, the court had set a three-month timeframe for the President to act on bills sent by a Governor in case the latter finds a state legislation to be inconsistent with a central law.
The division bench of Justices J.B. Pardiwala and R. Mahadevan had ruled that Governor Ravi’s action of withholding or sitting over ten bills was not only “erroneous”, but also “illegal”.
“There is no expressly specified time limit for the discharge of the functions by the Governor under Article 200 of the Constitution. Despite there being no prescribed time limit, Article 200 cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay, and essentially roadblock law-making machinery in the state,” the court had ruled.
Article 200 deals with assent to bills passed by state legislatures, and entails the Governor’s powers regarding these bills, including whether to grant or withhold assent, or reserve the bill for the President’s consideration.
Justice Pradeep Nandrajog, former chief justice of the high courts of Bombay and Rajasthan, told ThePrint, “Such a Presidential Reference had come up even during former CJI Justice Madan Mohan Punchhi’s time, when five judges’ names were sent by him for appointment, causing a lot of hue and cry. The Presidential Reference in the Second Judges case questioning his recommendations was politically motivated as it took away the CJI’s primacy and vested it with the collegium.”
One of the 14 questions that President Murmu has asked in her Reference is: “In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?”
A similar question has been raised linked to the timeframe set for the President with reference to Article 201. While Article 200 deals with the Governor’s powers to give assent to a state bill, Article 201 relates to similar powers that can be exercised by the President.
Although no time limit has been prescribed for the Governor or President to give his assent to a bill, Justice Nandrajog pointed to the general principle of law which says that where no time limit is prescribed, the act will be presumed to be done in a reasonable time. “So if there is no time limit prescribed, it means the bill should be considered within a reasonable time, and not sat on indefinitely.”
Underlining that the Reference forgets the issue that the Governor doesn’t have any legislative power, as opposed to elected representatives, he said, “So, if the elected representatives have made a law, you can flag something unconstitutional about the law, and refer it to the President, but you cannot just say that I will sit over it for two-three years.”
What Article 143(1) says
Broadly, Article 143 relates to the President’s power to consult the Supreme Court. According to Article 143(1), when questions of law or fact arise, and the President considers such them to be of public importance, it is “expedient” or suitable to obtain an opinion of the Supreme Court. This can be done by referring such questions of fact or law to the court for consideration, following which the court will report its opinion to the President.
The Supreme Court, however, has the discretion to decide whether to respond to the Reference or decline to send a report to the President.
In the 1993 Ayodhya ruling, the top court had refrained from giving its opinion upon the President’s Reference. On 24 October, 1994, the top court had declined to answer “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid” in the area on which the structure stood.
The Supreme Court had also refused to answer a Presidential Reference that dealt with the provisions of the Kashmir Grant of Permit for Resettlement in the State Bill, 1980, which aimed to control the return or resettlement in Jammu and Kashmir of persons who had migrated to Pakistan between 1947 and 1954.
Presidential References in the past
There have been at least 14 Presidential References since Independence. The first one came in 1951 in response to a Supreme Court ruling in the matter of Delhi Laws Act, 1912, which related to the law in force in the Province of Delhi, as it was then known. The issue dealt with the concept of delegated legislation, and led a seven-judge bench to hold that Parliament cannot delegate or assign someone its primary legislative functions.
Seven years later, in 1958, a Reference was made on certain questions of considerable public importance that arose from provisions of the Kerala Education Bill, 1957, which intended to regulate the state’s education sector and address issues like private sector malpractices. The bill had provisions for standardising syllabus, pay structures, teachers appointments and management of educational institutions. However, it wasn’t passed eventually, owing to widespread opposition.
One of the questions which came before the court was whether the provisions of the bill went against Article 30(1) of the Constitution, which states, “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
During this Reference, a bench of Justices B.P. Sinha, J.L. Kapur and S.K. Das ruled that the court has the discretion to express any opinion on the question or even decline from doing so, after giving valid reasons for the same.
This opinion of the court is not binding in nature, which means that it cannot be enforced or executed as it is not an order or judgment—a fact affirmed by the Supreme Court, while dealing with a Presidential Reference on the Special Courts Bill in 1978, where a seven-judge bench led by then CJI Y.V. Chandrachud had to decide whether the bill, or any of its provisions, if enacted, would be constitutionally invalid.
The 1978 bill spoke of the creation of special courts for speedy trial of offences, especially those that were committed by persons holding high political and public offices during the Emergency.
In 1992, the Supreme Court also answered a question about the Cauvery Water dispute, a long-standing conflict between Karnataka, Tamil Nadu, Kerala and Puducherry, over the sharing of water from Cauvery river, and said that states cannot reject orders passed by tribunals.
Apart from this, a Reference was made under Article 143(1) in connection with the 2G spectrum judgment, where the top court had in 2012 termed the allocation of 2G spectrum by the government “illegal” and an arbitrary exercise of power.
In the 2012 ruling, the court had cancelled all 122 telecom licences allotted on or after January 10, 2008 to 11 companies during the tenure of the former telecom minister, A. Raja. This had prompted the then Union government of the United Progressive Alliance to file a Presidential Reference, seeking clarity on whether the apex court could interfere in policy matters.
The question before the court was if all natural resources should be auctioned transparently, according to the mandate laid down in the court’s 2G scam case ruling, or if the directive should be confined to the spectrum auction.
A five-judge bench of the court responded to this by saying that auctions are not the only permissible method for disposing of natural resources across all sectors and in all circumstances. This went against the top court’s 2012 ruling which had explicitly said, “While transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”
Experts’ view
P.D.T. Achary, former secretary general of the Lok Sabha told ThePrint, “The President is well within her right to seek advice of the Supreme Court under Article 143 on issues of great public importance, but this opinion is not mandatory or binding on anyone. Under Article 141, however, all decisions and orders are binding or mandatory in nature, unlike this.”
Underlining that it is probable that the President must have been advised by the government to consult the court, Achary said, “Why has the government chosen to do this? A judgment can be reviewed by the same judges only on a limited ground, like if there is an irregularity or something, that’s why the government possibly did not take the revision route.”
Whatever opinion the court gives, the government may give an undertaking that the opinion is acceptable to it, he added. “However, it is up to the Supreme Court whether or not it wants to give an opinion, in such cases.”
Achary also said that once the Supreme Court decides to give an opinion of the question that requires consideration, a five-judge or Constitution bench will be constituted by the CJI to deliberate on the same.
Supreme Court lawyer Rohin Bhatt mentioned that asking the top court to reconsider its month-old ruling could be a way to circumvent the formal procedure of review. “What the executive branch is doing is subverting the procedure established by law, which would be to file a review. They have not done it, and want to bypass the review petition by this reference, which is merely advisory and not binding. This is legal legerdemain to meet ends that are suitable to the government, and has potentially a disastrous effect,” the Delhi-based lawyer said.
Adding that such a Reference should be returned, Bhatt said, “The questions there have been answered clearly in a judgment of the court in the State of Tamil Nadu v. Governor of Tamil Nadu. The judgment is law declared under Article 141 of the Constitution of India and is binding. The only way to upend this is either by filing a review petition or a future bench of two or more judges doubting the correctness of this decision.”
(Edited by Mannat Chugh)
Also Read: ‘Governor must be the catalyst, not inhibitor’—Inside SC’s ruling in plea against TN Governor