President questions if Supreme Court can impose timelines for clearing bills
A bench of justices on April 8 said that if a gov withholds assent or reserves a bill for the president’s consideration, this must be done within three months
President Droupadi Murmu has exercised a rare constitutional provision and sought the Supreme Court’s advisory opinion on 14 questions to settle the law on whether the president and governors need to follow timelines to decide on state bills referred for consent when the Constitution does not prescribe it.
A May 13 (Tuesday) presidential reference listed these questions following the April 8 judgment that laid down a timeline for the president and governor to decide on bills. The questions relate to constitutional options before the governors and the president after a state government presents a bill for consent. A governor can reserve a bill for the president’s consideration under the Constitution’s Article 201.
A bench of justices JB Pardiwala and R Mahadevan on April 8 said that if a governor withholds assent or reserves a bill for the president’s consideration, this must be done within three months of its presentation. It added that a governor must grant assent “forthwith” or within a month if a state legislature re-enacts an identical bill.
The court said the president must decide within three months of receiving a bill from a governor, as it laid down such a timeline for the first time. It asked that the president’s office convey reasons to the concerned state if there is any delay beyond this period.
The issue before the court related to 10 bills that the Tamil Nadu government referred to the governor for assent. The court used its extraordinary powers under the Constitution’s Article 142. It called the withholding of consent on the bills “illegal”. The court said that the bills would be “deemed” to have been assented to.
The court suggested that when the president receives a bill from a governor because it appears to be “patently unconstitutional”, it would be “prudent for the president to obtain the advisory opinion of this court” under the Constitution’s Article 143, which deals with the Supreme Court’s advisory jurisdiction.
The Union government is yet to file a review petition challenging the April 8 judgment, as the scope under review is limited, and the same bench that delivered the verdict would hear the matter in chamber.
The presidential reference filed under Article 143 said the concept of a deemed assent of the president and the governor is alien to the constitutional scheme and fundamentally circumscribes their power.
It referred to the court’s conflicting judgments as to whether the president’s assent can be gone into by courts, the absence of timelines under the Constitution’s Articles 200 and 201, and the frequency with which states are approaching the court to challenge the governor’s actions on bills. “It appears to me that...questions of the law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon.”
The reference, a copy of which HT has seen, cites the absence of a constitutionally prescribed timeline and the manner of exercise of the president’s powers. “...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?”
A similar question on timelines relates to the context of the governor’s power to consent on bills under Article 200.
The reference questioned the court verdict. “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?” it asked. “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?”
The reference questioned whether the courts could adjudicate on a bill even before it becomes a law. It referred to the extraordinary power the April 8 judgment exercised to grant deemed consent to the bills. “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?” it asked. “Is a law made by the state legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?”
The reference asked the court to consider the scope of power under Article 142. It sought an opinion on whether the power the Supreme Court exercised under Article 142 can extend to “issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?”
The reference asked whether it was right for a bench of two judges to decide on the dispute involving the Tamil Nadu governor and state government when the Constitution’s Article 145(3) requires a bench of a minimum of five judges to decide on a matter involving “substantial question of law”.
The reference questioned if the disputes between the Union government and states that require the Supreme Court adjudication in a suit instituted under the Constitution’s Article 131 bar the court from resolving such federal disputes in any other way besides Article 131.
It asked if the governor is bound by the council of ministers’ aid and advice while exercising options under Article 200. The reference sought to know whether the governor’s exercise of “constitutional discretion” can be questioned in the court.
The reference cites the Constitution’s Article 361, which provides immunity to the president and governors against judicial proceedings. “The President, or the Governor of a state, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties,” it said. “Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?” The reference asked whether the exercise of the president’s constitutional discretion under Article 201 is justiciable.
A bench of minimum five Supreme Court judges is required to decide on a presidential reference involving a substantial question of law. The decision is not binding on the president since it is pronounced as part of the court’s advisory jurisdiction.
