Pradeep Gupta
pardeep9419180772@gmail.com
On April 8th this year, a two Judge Supreme Court Bench, invoking its powers under Article 142 of the Constitution, while deciding the case relating to accord of assent to Bills passed by Tamil Nadu Assembly had set a timeline for the Governor to act on the pending Bills and further directed that the President decide on the Bills reserved by the Governor for his consideration within three months. Further stating that SC’s opinion under Article 143 could be sought for disposal of Bills so reserved. The Court held that Bills that remained pending would “deemed” to have been assented to when presented to the Governor after reconsideration by the State Legislature. No Bills could be reserved for President’s consideration after its reconsideration by the State Legislature.
Article 142 empowers the Supreme Court to pass an order for doing complete justice in any matter pending before it. As per Article 141, a law declared by the Supreme Court is binding on all courts in the country. Article 144 further adds that all authorities, civil and judicial, shall act in the aid of the Supreme Court. Article 143 of the Constitution lays down that the President may consult the Supreme Court if at any time it appears to the President that a question of law or fact of public importance has arisen and it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Supreme Court and the Court shall report to the President its opinion thereon. Taking recourse to this route, the Central Government in May this year made a Presidential Reference posing 14 queries to the Supreme Court instead of seeking a review of the impugned judgment of double bench in the Tamil Nadu case.
The Supreme Court answered the reference on 21st November broadly in the following terms: The Court has opined that as per Article 200, the Governor can either assent to the Bill, reserve it for consideration of the President, or withhold assent and return the Bill to the Legislature with comments; While exercising powers under Article 200 the Governor enjoys discretion and is not bound by the aid and advice of Council of Ministers; The discharge of Governor’s functions under Article 200 is not justiciable. However, in glaring circumstances of indefinite inaction, the Court has limited powers to issue a mandamus to the Governor to decide within a reasonable period of time; It is not appropriate to impose timelines under Article 200; President’s assent too is not justiciable; As per Article 201 the President cannot be bound by judicially prescribed timelines; The President is not required to seek SC’s advice, whenever the Governor reserves a Bill for President’s consideration. Subjective satisfaction of the President is sufficient; The decisions of the Governor and President under Articles 200 and 201 are not justiciable at a stage anterior to the law coming into force; The exercise of constitutional powers and orders by the President or Governor cannot be substituted in any manner under Article 142 nor does it allow for the concept of “deemed” assent of Bills; There is no question of a law made by a State Legislature coming into force without assent of Governor under Article 200; It has further been held that a Bill can be reserved for President’s consideration even after it is received by the Governor after reconsideration by the State Legislature. Although to an ordinary person this looks to be a delaying tactic since reference to the President could well be made in the first stage itself.
The two Judge Bench was largely driven to laying timelines due to delays on the part by of Raj Bhavans in clearing Bills passed by the State Legislature thereby stifling the democratic functioning of the State Legislature. The objective of laying strict timelines by the double bench though well-intentioned overstepped its constitutional mandate. While seeking to remedy the constitutional impasse, it tweaked with ‘separation of powers’ which constitutes the basic structure of the Constitution.
The opinion now rendered by the Supreme Court is balanced, in consonance with the provisions of the Constitution and strikes a conciliatory note. But it cannot be viewed as some kind of victory of Executive over Judiciary or Centre over States. If at all, it is reaffirmation of supremacy of Indian Constitution. Note has also to be taken that, in reply to 3rd query, the Supreme Court has said that in glaring circumstance of indefinite action, the Court has limited power to issue a mandamus to the Governor to decide within reasonable time period. This keeps a window open for Court’s intervention in glaring cases of inaction on the part of Governors in future.
In the view of the author the opinion rendered by the Supreme Court to the Presidential Reference does not ipso-facto override the double Bench judgment. But the opinion will carry a great persuasive value as and when the Central Government files a review petition to overrule the impugned judgment.
(The Author is a Law Student) in the University of Jammu)
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