What is wrong in President seeking views of court? Supreme Court on Presidential reference in Governors' case

The Supreme Court on Tuesday prima facie expressed favourable view with regard to the maintainability of the reference made by President Droupadi Murmu under Article 143 in relation to the ruling that set timelines for Governors and the President to grant assent to bills passed by legislatures.

A Constitution Bench comprising Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar said there is nothing wrong in the President seeking the views of the Court on the issue.

The Court made the observation in response to the opposition by States like Kerala and Tamil Nadu which have questioned the maintainability of the reference.

"When the Hon'ble President is seeking views of this court, what is wrong in that. Are you really serious on [preliminary objections]," CJI Gavai remarked.

The Court also clarified it was sitting in advisory jurisdiction and not appellate jurisdiction. It added that the Court can render an opinion that a particular judgment is not right but the same will not overrule the existing judgment.

However, Solicitor General Tushar Mehta cited a precedent to argue that the Court can even overrule a judgment in advisory jurisdiction. At this, CI Gavai remarked,

"A view can be overruled, not decision."

The Presidential reference questions the top court’s top court's April ruling which prescribed timelines for the President and the Governor to decide on Bills and also held that the Governor’s inaction under Article 200 (Governor's powers regarding assent to bills passed by the State Legislature) was subject to judicial review.

A Bench of Justices JB Pardiwala and R Mahadevan held in State of Tamil Nadu v The Governor of Tamil Nadu & Anr that the Governor must act within a reasonable time and that constitutional silence could not be used to stall the democratic process.

The Court held that although Article 200 does not specify any time limit, it cannot be interpreted to allow indefinite delay by the Governor in acting on Bills passed by the State legislature.

With regard to the President’s powers under Article 201, the Court held that her decision-making is not beyond judicial scrutiny and must occur within three months. If there is any delay beyond that period, reasons must be recorded and communicated to the concerned State, it said.

Following the ruling, the President referred fourteen questions to the Supreme Court, raising concern over its interpretation of Articles 200 and 201. Among the questions referred are whether the Supreme Court can create procedural mechanisms in areas where the Constitution is silent, and whether imposing time limits encroaches upon the discretionary space constitutionally granted to the President and Governors.

In response, the State of Kerala filed an application questioning the maintainability of the reference. It urged the Supreme Court to return the reference unanswered, terming it an attempt to indirectly overrule binding judgments without disclosure.

The State of Tamil Nadu also moved an application opposing the maintainability of the Presidential reference. It similarly argued that the reference seeks to reopen and indirectly appeal a judgment of the Supreme Court that comprehensively addressed the constitutional position under Articles 200 and 201.

On the other hand, the Central government supported the reference, arguing that the power of Governors and the President to act on Bills is a “high prerogative” function which cannot be bound by judicial timelines.

Arguments on maintainability

Senior Advocate KK Venugopal, representing Kerala government, today began submissions in the case. He said the queries sent by the President are covered by the Tamil Nadu case.

"Once a judgment covers the issues, the issues are no longer res integra," he added.

Venugopal added that the Court is bound by the earlier decision. However, CJI Gavai asked whether the 5-judge bench was bound by a judgment rendered by a two-judge bench.

"Unless you overrule it," Venugopal said in response.

He also argued that the reference is made by the Government of India with President only as a referencing authority. President is bound by aid and advice of ministers and has to carry out what is stated by council of ministers, Venugopal further said.

"It is an attempt by the Government of India without filing review to overturn the judgment of Supreme Court," he added.

Senior Advocate Abhishek Manu Singhvi, representing Tamil Nadu government, similarly argued that all queries, except three, sent by the President are dealt with exactly by the judgment delivered by Justice Pardiwala-led bench.

"Substantially every issue para-wise is covered," Singhvi said.

Calling the reference an intra-court appeal, Singhvi said the President's advisory jurisdiction cannot substitute for a review plea. Singhvi added that the Constitution Bench was being asked to change the decision, merits and contents of the decision in Tamil Nadu case.

"It is purely appellate, howsoever nicely you may couch it. It is subversion of Supreme Court institutional integrity," the senior counsel said.

When Singhvi asked the bench to consider the institutional implications for having such an "intra-court appeal", Justice Nath said,

"You are making assumptions that the two judge bench decision will be set aside...why?"

CJI Gavai also said the Constitution Bench was deciding the reference and not the Tamil Nadu case. However, Singhvi said the nature of the present case is such that the bench may disturb the decision of Tamil Nadu case.

On the other hand, Attorney General for India (AG) R Venkataramani said the Court has gone into previous decisions in earlier references. There is no in-built limitation on Article 143, he added.

"In a given case of public importance, the Court can depart from the practice," Venkataramani submitted.

"Even if the field is occupied by the judgment and President feels there are multiple judgments.. one three or two judges bench judgment ...then such a reference is sought and the court can answer the questions," he added.

Solicitor General (SG) Tushar Mehta asked the Court to see the significance and importance of the reference.

"This is for the first time the President has felt there is a functional disharmony which has arisen and which will arise because there has been no authoritative judicial pronouncement," Mehta said.

Mehta argued that Article 143 does not prevent the Court from going into a particular judgment.

"It is a self imposed restriction that while exercising advisory jurisdiction, we will not go into the question of whether one particular judgment is rightly decided or wrongly decided," he said, adding that the 2G case judgment holds that even that is permissible.

He added that the Head of the State was approaching the Court stating that something has created a "constitutional functional problem".

Senior Advocate Neeraj Kishan Kaul represented the State of Madhya Pradesh. Senior Advocate Harish Salve appeared for State of Maharashtra. Senior Advocate Maninder Singh also made arguments in support of the maintainability of the reference.