Bulwark against Delay Tactics

The judiciary has once again come under the national spotlight following the President's reference to the Supreme Court under Article 143 of the Constitution. The President has exercised her advisory jurisdiction to raise 14 significant issues, stemming from the Supreme Court's April 2024 judgment in the Tamil Nadu Bills case. In this landmark ruling, the apex court deemed the withholding of 10 bills passed by the Tamil Nadu legislature as "illegal and arbitrary" and directed the Governor to take decisions on assent within three months.

The judgment elicited mixed reactions, with some state governments, such as West Bengal, where bills have languished for months awaiting assent, welcoming the verdict. However, the Vice President criticised the judiciary, labelling it a "super Parliament" and expressing concerns about the extraordinary judicial powers vested in the top court under Article 142. He likened these powers to a "nuclear missile" available to the judiciary 24/7, potentially undermining democratic forces.

The Issue at Hand

The imposition of a timeline has been a central issue in the debate. The apex court justified this move by noting that the absence of a timeline for the Governor and the President to decide on state bills creates uncertainty, potentially delaying the enactment of laws and impacting governance. This logic appears sound and reasoned.

Article 143 allows the executive to seek the opinion of the apex court on critical legal and constitutional questions. Given the non-binding nature of the court's opinion and the judicial discretion involved, it can be inferred that the framers of the Constitution intended for the court to be the final arbiter of its jurisdiction. This provision serves as a bridge between the executive and the judiciary, enabling the executive to govern the country in accordance with the rule of law and popular mandate.

Context of the Reference

The presidential reference has been made amid growing tensions between state governments and Raj Bhavans across India, with several bills pending approval for extended periods. This referral is a rare and significant moment in India's constitutional jurisprudence. The President has sought clarity on several key questions, including whether judicial review can occur before a bill becomes law, and whether the Supreme Court can override the constitutional powers of the Governor or the President under Article 142.

The President has also queried whether a state law can be valid without the Governor's assent, and whether Governors must strictly follow the advice of the council of ministers, with their discretion being subject to judicial review despite constitutional safeguards. Additionally, the President has raised questions about the imposition of a timeline by the judiciary in the absence of a constitutionally prescribed time limit, and the manner of exercise of power by the Governor in giving assent to bills. Overall, the President's reference seeks to clarify the boundaries of executive discretion, judicial review, and the justiciability of presidential and gubernatorial acts.

One general criticism against this reference is that the Centre has opted for a Presidential reference instead of seeking a review of the verdict. Notably, review petitions are typically heard by the same set of judges in the apex court in chambers, whereas Presidential references are considered by a five-judge Constitution bench. Significantly, the apex court is not obligated to answer all or any of the questions posed.

Since the Constitution's inauguration, 10 Presidents have invoked this provision at least 14 times. While the Court has provided answers to the questions raised in all references, it refrained from doing so in the Ayodhya case in 1993. The present reference is one of the most exhaustive, dealing with multiple constitutional provisions, including Articles 200, 142, and 145(3).

Presidential references have served as constitutional safety valves in various disputes, ranging from taxation conflicts (Sea Customs Act, 1962) to energy regulation disputes (Gujarat Gas Case) and attempts to prosecute political leaders through special courts (1979 reference). Although the opinions rendered are not legally binding, their moral and institutional weight has often guided Parliament and the executive.

Constitutional Framework

India's Constitution establishes a federal system, where states enjoy autonomy in legislating on matters enumerated in the State List. Every bill passed by a state legislature must receive the Governor's assent before becoming a law. As the constitutional head of the state, the Governor performs a role analogous to that of the President at the Union level.

In the absence of a specified timeframe, Governors could potentially delay bills for months, sometimes for political reasons, which could have adverse consequences for citizens. While the Constitution may not explicitly address this issue, the judiciary, as its guardian, is expected to intervene when necessary. No constitution can anticipate every future scenario, and the Supreme Court has played a crucial role in interpreting the Constitution to meet emerging challenges.

Some argue that the issues raised in the presidential reference touch upon the basic structure doctrine, which was established by the Supreme Court in the Keshavananda Bharati case. This doctrine emphasises foundational principles such as judicial independence, federalism, and separation of powers as essential to India's democracy. The apex court has consistently upheld these principles as indispensable to the country's constitutional framework.

The Role of the Supreme Court

In a parliamentary democracy, the legislature is sovereign and accountable to the people. However, the Governor, as a political appointee, is not directly accountable to the people and often acts on the Centre's instructions. If a Governor indefinitely delays or withholds assent to bills, it can impede good governance and public interest, which the Supreme Court, as the guardian of the Constitution, cannot ignore.

In Tamil Nadu and West Bengal, the Governors' withholding of assent to bills related to educational institutions has had significant and long-term consequences for academic administration and students. Such situations cannot persist indefinitely, and the Supreme Court must intervene to set things right.

Justice JB Pardiwala, who authored the verdict in the Tamil Nadu case, emphasised that Article 142 was invoked to do complete justice in the public interest of the people of Tamil Nadu. The Court's role in ensuring that the constitutional machinery functions properly is crucial in such instances.

Fr. John Felix Raj is the Vice Chancellor, and Prabhat Kumar Datta is an Adjunct Professor at Xavier Law School, both at St. Xavier’s University, Kolkata. Views expressed are personal