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Top law officials joined forces to frame President Murmu’s questions
President Droupadi Murmu's 14 questions to the Supreme Court stem from a month of collaboration on a landmark ruling regarding state bill timelines.
The 14 questions put forth by President Droupadi Murmu in her presidential reference to the Supreme Court were the result of a month-long effort involving brainstorming, research, and coordination between multiple government departments and the offices of the top two law officers of the Centre, people aware of developments said on Thursday.
The questions deal with the constitutionality and reach of an April 8 judgement by the Supreme Court, setting deadlines for governors and the President to clear state bills.
The efforts – which included several rounds of meeting involving the offices of attorney general R Venkataramani, solicitor general Tushar Mehta, and the legislative wing of the Union law ministry – began shortly after the government received a certified copy of the judgment on April 12 and ended just a week before it was filed in the top court’s registry on May 14, said the people cited above.
“The copy of the judgment arrived on April 12 and there was contemplation of filing a reference,” said one of the persons cited above. “The question of filing a review was not under consideration at any point of time,” the person referred above added.
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Under top court rules, the presidential reference is considered by a five-judge Constitution bench set up by the Chief Justice of India. A review petition would ordinarily be considered – either in chambers or open court – by the same bench that passed the original verdict.
On May 14, Murmu posed 14 questions to the Supreme Court over the landmark April 8 verdict that fixed timelines for governors and the President to act on bills passed by state assemblies. Exercising her power under the rarely used Article 143 (1), Murmu said in the present circumstances, it appeared that important questions of law had arisen requiring the opinion of the Supreme Court of India . Article 143 (1) of the Constitution deals with the power of the President to consult the Supreme Court.
Shortly after the judgement’s copy was received on April 12, a legal team in Mehta’s office tasked with preparing the draft of the reference was asked to cull out the “questions of law” arising from the judgment, said people aware of developments. This exercise took some time as several legal questions were framed initially. Venkatramani’s office was kept in the loop and the draft issues were shared by the offices of the two senior law officers with the government, said the people cited above.
“There were a few meetings held with the government in which the draft versions prepared under the guidance of AG R Venkatramani and SG Tushar Mehta were discussed,” people aware of the matter said.
By the first week of May, the questions in the reference were refined, and by May 7, the final draft was shared with the government, they said. It was then sent to the President’s secretariat, from where the reference was filed in the top court on May 14, they added.
On April 8, the Supreme Court pulled up Tamil Nadu governor RN Ravi for attempting to thwart the will of an elected legislature, declared his decision to reserve 10 re-passed bills for presidential assent as “illegal”, and laid down timelines to curb inaction by governors across the country, in a landmark judgment that sought to reassert constitutional discipline, curtail gubernatorial overreach, and reiterate India’s federalism. It commented on Ravi’s obstructionism in first withholding the bills, then sending them for re-consideration, and finally claiming they needed presidential assent .
If acting on the advice of the state cabinet, the governor must assent, withhold assent, or reserve the bill for the President within one month, held the two-judge bench of justice JB Pardiwala and R Mahadevan. It added that if withholding assent is contrary to cabinet advice, the governor must return the bill with a message within three months. The judgment further said that if the governor is reserving the bill for the President contrary to cabinet advice, such reservation must also happen within three months. Similarly, if the bill is re-passed by the legislature, the governor must grant assent within one month. Any violation of these timelines, the court warned, would attract judicial review and scrutiny by constitutional courts.
Then, in the detailed verdict uploaded on April 11, the court extended this timeline discipline to the President and held that Rashtrapati Bhavan must decide within three months of receiving a bill from a governor. If there is any delay beyond this period, the President’s office will be required to convey reasons to the concerned state.
Experts have pointed out that a reference cannot be directly used to challenge the correctness of a judgment already delivered.
The present reference is by far among the more exhaustive ones sought, dealing with multiple constitutional provisions – Article 200 (power of governor to assent to bills), Article 201 (bills reserved for consideration of President), Article 142 (power of Supreme Court to pass orders to do complete justice), Article 361 (protection of President and governors against judicial scrutiny for any act done in official capacity), Article 145(3) (substantial questions of law to be determined by a bench of minimum five judges), and Article 131 (original jurisdiction of Supreme Court to decide suits arising from a dispute between Government of India and one or more states or between two or more states).
“Presidential references are generally pointed. This is the most exhaustive by far,” said constitutional expert and senior lawyer Rajiv Dhavan.
Dhavan said that the top court reserves the right to decide the reference in any manner, refuse to answer, or ask the President to reframe the questions. In the Presidential reference case on Special Courts Act (1978), the top court asked the President to reframe the issues, Dhavan said. In the 1993 Presidential reference on the Ram Janmabhoomi-Babri Masjid matter, the top court refused to answer the reference.
“Out of deference to the President, the Supreme Court will certainly have to constitute a bench. As it is a Presidential reference, the same has to be urgently considered,” he added.
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