Manas Dasgupta
NEW DELHI, Aug 19: A five-judge Constitution Bench of the Supreme Court headed by the Chief Justice of India BR Gavai on Tuesday began hearing the Presidential Reference on the apex court’s April 8 judgement fixing the timeline for the President and the Governors for clearing bills passed by the state legislatures.
The hearing opened with Kerala and Tamil Nadu raising preliminary objections to its maintainability, arguing that the questions referred by the President were no longer res integra or unsettled questions of law.
The Attorney General and the Solicitor General made their submissions on why a timeline should not be given to President and Governors on disposing of the Bills. The arguments briefly also recalled the constitutional debates on Article 200 that deals with the powers of the Governor regarding Bills passed by the Legislature.
Two States, Kerala and Tamil Nadu, are asking whether the Centre, through the rare Presidential reference mechanism was egging the Supreme Court on to give an “opinion” which would overrule its own “binding” judgment. The States argue the judgment in the Tamil Nadu Governor case has comprehensively answered constitutional questions about the powers and discretion of the President and State Governors while approving, withholding or reserving assent to proposed State laws.
On April 8, a two-judge bench comprising Justices JB Pardiwala and R. Mahadevan, had fixed three-month timelines for the President and the Governors to deal with State Bills under Article 200 and 201 of the Constitution. It arose from a petition filed by the Tamil Nadu government challenging Governor R.N. Ravi’s over three years delay in granting assent to ten Bills that had been re-passed by the State legislature, and his subsequent decision to reserve them for Presidential consideration. The judges held that the Governor’s prolonged inaction was illegal and, for the first time, imposed judicially enforceable timelines on Governors and the President to act on State Bills.
“Are you really serious…” an incredulous CJI Gavai asked the Kerala government. Why can’t a five-judge bench hear when the president is asking (a question)? What is wrong with that?” the Chief Justice asked ahead of a potentially landmark hearing concerning power to assent (or withhold assent) to bills passed by state governments, and the larger question of whether the Supreme Court can fix timelines for the President or a Governor to act on a bill.
The Chief Justice’s incredulity was in response to former Attorney General KK Venugopal, appearing for the Kerala government, referring to a ‘series’ of earlier verdicts by the top court that held of a presidential reference was not maintainable. To this the Chief Justice asked, “… these judgments you are relying on… are they five judges?”
Mr Venugopal said, “No… three and two judges. The question of a five-judge bench would arise if a substantial question of law arises”, and the Chief Justice shot back, “But when the President is asking, what is wrong?” In its April 8 order, in a case related to Tamil Nadu’s ruling DMK and Governor RN Ravi, the Supreme Court had sought to regulate this process and ordered that the constitutional heads follow a timeline to clear the pending bills.
It ordered, “We deem it appropriate to adopt the timeline prescribed by the Ministry of Home Affairs… and prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received.”
The judgment drew pushback, with President Droupadi Murmu raising queries to the Supreme Court over the constitutionality of such timelines. Under Article 143 of the Constitution, the President posed 14 questions to the top court, seeking its opinion on the powers of the President and Governors under Articles 200 and 201 in dealing with bills passed by the state legislatures.
In July, the Five-Judge Bench headed by the CJI and also comprising Justices Surya Kant, Vikram Nath, PS Narasimha, and Atul S Chandurkar, had fixed a time schedule to hear the Presidential reference case and decide on the questions referred to it by the President.
The timelines were not an invention of the Supreme Court, something pulled out of thin air. They were based on twin Office Memorandums issued by the Home Ministry in February 2016 highlighting the problem of “undue delay” caused by the President and Governors in taking a final decision on State Bills. The States highlighted the fact that the Union government has not assailed the April 8 judgment in a review or a curative petition. This would necessarily mean the Centre has accepted the timelines. If so, what is the need for a Reference now.
The Constitution Bench had agreed to give the two States first audience to argue the maintainability of the Presidential Reference. A Reference made by the President to the Supreme Court under Article 143 of the Constitution was contingent on the fact that ‘a question of law or fact has arisen, or is likely to arise’ and hence was not res integra (unsettled law). The States have argued that 11 of the 14 questions raised by the President in the reference have already been answered in the April 8 judgment.
Kerala and Tamil Nadu point out that the questions referred to the Supreme Court ex facie show that no question of law or fact had arisen, or was likely to arise. “As the very questions stand conclusively and determinatively answered by the Supreme Court in the Tamil Nadu Governor case judgment,” they point out.
The States have urged the court to reject the Reference as a gambit by the Centre to overrule a judgment already delivered. They want the Reference to be returned unanswered. Besides, the two States have asked how an opinion of the court on a Presidential Reference could overrule a binding judgment.
A nine-judge Bench of the Supreme Court in Ahmedabad St. Xavier’s College Society v. The State of Gujarat has held that a report made to the President in a reference was entitled to “great weight”, but could not supplant a judgment. The Tamil Nadu Governor case judgment was ‘law’ declared by the Supreme Court under Article 141, and binding upon the Council of Ministers.
“An opinion rendered by the current Constitution Bench in its advisory jurisdiction under Article 143 cannot supplant or supersede or override such law, and being only an opinion, and not being law under Article 141, would not bind the President,” the States have argued. Incidentally, Kerala and Tamil Nadu have criticised the Presidential Reference for “suppressing” the very existence of the Tamil Nadu Governor case judgment of April 8. This alone, they say, was ground enough for the Constitution Bench of the apex court to reject the Reference.