The Supreme Court on Tuesday issued notice to the Centre and all states on the reference made to it by President Droupadi Murmu under Article 143 of the Constitution, following its verdict that fixed timelines for the President and governors to act on Bills passed by state assemblies. Article 143 refers to the President’s power to consult the top court.
A Constitution Bench of Chief Justice of India B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha, and A S Chandurkar, which took up the matter, said it will fix timelines for the hearing next week. CJI Gavai said, “Tentatively, we propose to start (the hearing) somewhere in mid-August.”
The counsels appearing for Kerala and Tamil Nadu said they propose to question the maintainability of the reference. The CJI asked them to reserve their arguments for the hearing.
In the reference made under Article 143(1) of the Constitution, President Murmu has posed 14 questions over the top court’s April 8 verdict. The President sought to know whether the actions of governors and the President are justiciable (whether courts can look into it) and whether such timelines can be imposed on them in the absence of any such provision in the Constitution.
The reference pointed out that “there are conflicting judgments of the Supreme Court as to whether the assent of the President of India under Article 201 of the Constitution of India is justiciable or not”. Under Article 145 (3), when the President makes a reference for the court’s opinion, it is placed before a five-judge bench.
On April 8, the Supreme Court had set a timeline for governors to act on pending Bills, and for the first time, prescribed that the President should take a decision on the Bills, reserved for consideration by the Governor, within three months from the date on which such reference is received. Under Article 201 of the Constitution, no timeframe has been set for a President’s decision.
The Supreme Court had said that “in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed” to the state concerned.
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The April 8 ruling by a two-judge bench, headed by Justice J B Pardiwala, set aside Tamil Nadu Governor R N Ravi’s decision to withhold assent to 10 Bills for consideration of the President in November 2023 after they had already been reconsidered by the Assembly, and said that the action was illegal and erroneous.
In her reference to the apex court, President Murmu sought to know: “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?”
Article 201 prescribes the powers of the President and the procedure to be followed while assenting to Bills or withholding assent therefrom, but “does not stipulate any time frame or procedure to be followed by the President for the exercise of constitutional options.”
President Murmu pointed out that Article 200 of the Constitution, which prescribes the powers of the Governor and the procedure to be followed while assenting to Bills, withholding assent to Bills and reserving a Bill for the consideration of the President, “does not stipulate any time frame upon the Governor for the exercise of constitutional options”.
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“Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable? Is Article 361 of the Constitution of India an absolute bar to judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India? 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?” the President sought to know.
Murmu asked whether “in light of the constitutional scheme governing the powers of the President”, she “is 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?”
“Are 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 to the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?”
The President also asked: “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?”
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Some of the other questions referred to the top court are: “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 reference pointed out that the Constitution enlists numerous instances where the assent of the President has to be obtained before a legislation can take effect in a state.
It said that “the exercise of constitutional discretion by the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, are essentially governed by polycentric considerations, inter alia being federalism, uniformity of laws, integrity and security of the nation, doctrine of separation of powers”.
The President said, “States are frequently approaching the Supreme Court of India invoking Article 32 (Right to Constitutional Remedies) of the Constitution of India (and not Article 131 which states that the Supreme Court has exclusive jurisdiction over legal issues between states or between states and the Union), raising issues which by their very nature are federal issues involving interpretation of, inter alia, the Constitution of India.”
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The reference also said that “the contours and scope of provisions contained in Article 142 of the Constitution of India in context of issues which are occupied by either constitutional provisions or statutory provisions also needs an opinion of the Supreme Court of India.” Article 142 refers to the enforcement of decrees and orders of the apex court.
The President also said that “the concept of a deemed assent of the President and the Governor is alien to the constitutional scheme and fundamentally circumscribes the power of the President and the Governor”.
