A constitution bench of the Supreme Court on Thursday asked whether the judiciary should feel “powerless and sit idle” when another wing of democracy fails to discharge its constitutional duties, as it reserved judgment on a rare presidential reference questioning whether courts could prescribe timelines for the President and governors to act on state bills.
Following marathon hearings over 10 days, the five-judge bench led by Chief Justice of India (CJI) Bhushan R Gavai and comprising justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar reserved its opinion. The advisory opinion will have to be delivered before CJI Gavai demits office on November 23.
On the last day of arguments, Solicitor General (SG) Tushar Mehta urged the bench to hold that the Court’s April 8 judgment, which laid down deadlines for gubernatorial and presidential assent, “does not lay down the correct law” and should carry no precedential value. “The way this court decides will determine how the country is governed,” Mehta submitted.
CJI Gavai, however, posed a pointed question to the SG: “I publicly say that I am a strong believer in the doctrine of separation of powers and though judicial activism has to be there, it should not turn into judicial adventurism. But at the same time, if one wing of democracy fails in discharging its duties, would the court, which is the custodian of the Constitution, be powerless and sit idle?”
Mehta countered that issuing judicial directions to constitutional functionaries like governors or the President would violate separation of powers. “The executive and legislature are also custodians of the Constitution. Issuing a mandamus in a discretionary legislative function of a co-ordinate constitutional organ would upset the balance,” he argued.
The presidential reference was made by President Droupadi Murmu under Article 143, after a two-judge bench’s April 8 ruling in State of Tamil Nadu Vs governor of Tamil Nadu that imposed a one-month deadline on governors to act on re-enacted bills and a three-month limit on the President even though the Constitution itself is silent on timelines.
That case was about Tamil Nadu governor RN Ravi delaying his assent to bills almost interminably, and mirrored a recent trend in states ruled by parties other than the BJP or its allies, where Governors and the state government end up having an antagonistic relationship.
The judgment prompted the President to seek the top court’s opinion on 14 questions, including whether courts can fill constitutional silences by prescribing time limits, whether such directions impinge on discretion constitutionally vested in governors and the President, and whether assent-related functions are justiciable.
The SG also argued that the present bench has the authority, in its advisory capacity, to declare the Tamil Nadu ruling “not correct law,” relying on the precedent of the 2G spectrum reference. “Intra-party, the judgment is binding and final. But Your Lordships have the jurisdiction and power to say the Tamil Nadu judgment is incorrect. That is my respectful submission,” he said.
The 2G spectrum reference was to a February 2012 order, where the Supreme Court cancelled 122 telecom licences in the 2G spectrum case, ruling that natural resources must ordinarily be allocated through auctions to ensure transparency. In the aftermath, the then central government sought a presidential reference to clarify whether auctions were the only permissible method for disposing of natural resources across all sectors and in every circumstance. A five-judge bench, in its advisory opinion, held that auctions cannot be treated as the sole method in all cases, thereby softening the earlier ruling which had stressed that “while transferring or alienating natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”
Warning of practical consequences, Mehta said: “Visualise a situation where the judgment says the President must decide within three months. A state comes and prays, direct the governor to grant assent. Can a writ of mandamus be issued to the President or governor to grant assent? On the other hand, some MLAs may move another petition asking that the assent not be given. Would this Court then substitute what option the governor should exercise? This is not justiciable.”
He also posited extreme hypotheticals, such as a state legislature passing a bill declaring itself outside the Union of India. “Would the governor not be bound to withhold assent in such a shockingly unconstitutional situation?” Mehta asked.
Attorney General R Venkataramani argued that the court cannot remodel Article 200 to “make it look better.” “Courts can and must read rights into constitutional provisions, but here it is not a matter of rights. It is a matter of structural design,” he said. The independent discretion vested in governors under Article 200, he submitted, is integral to the constitutional framework and should not be curtailed by judicially imposed timelines.
Senior advocates appearing for various states, including Kapil Sibal for West Bengal, Abhishek Manu Singhvi for Tamil Nadu, and Arvind Datar for Punjab opposed the Union’s plea to reopen the Tamil Nadu ruling, insisting that Article 143 cannot be used to unsettle binding precedent. Apart from these states, Punjab, Telangana and Karnataka have also opposed the presidential reference.
Justice Surya Kant, during exchanges, noted that there could be a distinction between directing a governor to take a decision within his prerogative and dictating what that decision should be.
This is the first presidential reference in years and one that goes to the heart of Centre-state relations and constitutional checks and balances. The court’s advisory opinion, while not binding, will carry enormous persuasive weight. The verdict, once delivered, is expected to clarify whether constitutional courts can set enforceable timelines for assent, or whether such functions remain beyond judicial scrutiny, resting entirely within the political and constitutional discretion of governors and the President.
In the April ruling, the two-judge bench fixed a three-month deadline for the President to decide on bills referred by a governor, and one month for a governor to act on re-enacted bills. It had even invoked Article 142 to deem 10 Tamil Nadu bills as assented to, after holding that the governor’s prolonged inaction was “illegal”.