New Delhi: Perturbed by Supreme Court’s 8 April ruling, which fixed timelines for the Governors of states as well as the President of India to decide on bills cleared by state legislature, the Centre has, through President Droupadi Murmu, sought an opinion or clarification from the top court on whether such deadlines can be fixed judicially.
In a Presidential Reference made to the Supreme Court under Article 143(1) of the Constitution, President Murmu wants the court to clarify whether the ruling would count as a “justiciable” action, particularly as the Constitution is silent on the matter.
“Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable? In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?” the President has sought to know.
Instead of invoking the review jurisdiction of the Supreme Court, which allows a contesting party to ask the court to reconsider its decision, the government chose the route of Article 143(1).
Under Article 143(1) of the Constitution, the President can seek clarity on myriad constitutional issues. It’s a mechanism for the Centre to seek advisory through the President, when there is doubt on any question of law or fact.
The judgment on which the Reference raises doubt had declared Tamil Nadu Governor R.N. Ravi’s refusal to assent 10 state bills as unconstitutional. In the process, the court had reshaped the contours of the powers of the Governor as well as the President by laying down time-bound guidelines under Articles 200 and 201. It had also invoked Article 142 to declare that the 10 bills passed by the Tamil Nadu assembly and pending with the Governor were deemed to be assented.
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.
Under Article 200 on presentation of a bill passed by an assembly, a Governor is required to grant assent “as soon as possible” or return the bill, excluding Money bills, for reconsideration by the House. The provision specifically says that the Governor “shall not withhold assent” when the bill, after reconsideration, is sent back to him/her.
The Governor can refer the bill, in case it is in conflict with a central legislation, to the President, who then, under Article 201, has the mandate to assent or withhold.
The genesis of the judgment lay in the standoff between the Governor and Tamil Nadu government over bills that were pending before the former for his approval. It came after a protracted litigation between the two constitutional bodies.
The ruling had taken a dim view of the Governor’s obstructionist approach in the matter, while observing that his inaction could potentially cause an executive paralysis in the state. It said that the Governor could not have referred the bills to the President in the second round, when they were sent back to him after reconsideration by the state legislature.
The verdict then became a flashpoint between the judiciary and Bharatiya Janata Party-ruled central government, with Vice President Jagdeep Dhankar, on several occasions, describing it as judicial overreach.
14 questions
The Presidential Reference frames 14 questions for the Supreme Court to answer. Pendency of several petitions to the dispute between various Opposition-ruled states and their respective Governors before the top court has necessitated the Reference, which also raises an eyebrow over states resorting to Article 32, instead of Article 131, to file these cases in the Supreme Court.
Article 32 is a provision used to approach Supreme Court and high courts for enforcement of fundamental rights, whereas Article 131 grants the top court original jurisdiction to hear disputes between Centre and state governments.
Besides raising the issue with regard to deadlines for Governor and President, the Reference also wants to understand the scope of Article 142 of the Constitution that allows the apex court to invoke its special powers to administer justice. It is a power that can be exercised to give direction on issues that may not have been a core discussion point in a case.
“Can the exercise of constitutional powers and the orders of/by the President/Governor be substituted in any manner under Article 142 of the Constitution of India?” the Reference asks, while also seeking to know if it is “permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law.”
The Reference also touches upon another point of friction, between judiciary and executive, arising out of the judgment. In the decision, the Supreme Court had suggested that in case of a conflict between a central law and state legislation, the President can seek advice from the top court through a Reference under Article 143.
The Reference seeks to know: “In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?”
Some of the other questions referred to the court include: “What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India? Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?”
The Presidential Reference also asks the Supreme Court whether the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, “justiciable at a stage anterior into the law coming into force”, or before the law coming into force.
(Edited by Mannat Chugh)
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If Her excellency agrees with the legality of a bill, she can assent to the bill, if she doesnt then she can send it back. What constitutional purpose could ever be possibly served by sitting on a bill passed by the people’s assemblies?