Supreme Court News: The President had used his powers under Article 143 of the Constitution to seek advice from the apex court on 14 constitutional questions. The Supreme Court had constituted a Constitution bench of five judges headed by the CJI to find answers to these questions.
The Constitution bench of 5 judges of the Supreme Court said that the way of interpretation and working of the Constitution is ‘indigenous’. Responding to the President’s reference questions, the Constitution Bench said that unlike the English experience of an unwritten Constitution, India has a written constitutional text.
The bench said the American experience is very different because of the strict separation of powers between the executive and the legislature, which requires a presidential veto. CJI B.R., who is heading the Constitution bench. Gavai said that the Indian Constitution has not only brought about change in its adoption, but it has also been about to bring about change in its use and meaning and will continue to do so. He said it is leaving behind its colonial traces for a vibrant and growing indigenous foundation.
We proudly worked on the Constitution for centuries
The Constitution Bench said that in our view our constitutional integrity does not lie in either of these two extents, but is based on the fact that we have successfully and proudly worked on the Constitution for more than three-quarters of a century.
Law making happens only at the behest of the executive
The CJI said that on the other hand, the Indian Constitution has over the years transformed into a parliamentary model, where legislative agenda, work and law making are mostly done at the behest of the executive.
1. When a bill comes before the Governor under Article 200 of the Constitution, what constitutional options do he have?
The Constitution Bench said, once the bill is passed by the Assembly, the Governor can assent to it, withhold it or reserve it for the President’s approval. According to the first provision of Article 200, it is also necessary to send the bill back to the Assembly. The first provision says that the bill be sent back to the House. There is no fourth option in this. The Governor does not have the power to stop the bill without sending it back to the House.
2. Is the Governor bound to accept the aid and advice given by the Council of Ministers when a Bill is introduced?
The Constitution Bench said, the Governor acts under the advice of the Council of Ministers. The Governor exercises discretion under Article 200. In the second provision of the article his opinion is indicated by the use of words. The Governor has the discretion to return the bill or reserve it for the President.
3. Can the exercise of constitutional discretion by the Governor be judicially reviewed under Article 200?
The Constitution Bench said, there cannot be judicial review of the exercise of discretion by the Governor under Article 200. The court cannot enter into the merits and review of such decision. Can issue a limited mandamus to discharge the functions in case of apparent inaction of the Governor.
4- Is Article 361 a complete bar on judicial review in respect of the action of the Governor under Article 200 of the Constitution?
The Constitution Bench said, Article 361 imposes a complete ban on judicial review. However, this cannot be used to negate the limited scope of judicial review that it is empowered to exercise in cases of prolonged inaction by the Governor under Article 200.
5-7- Can a time limit be imposed for the exercise of all powers under Article 200? Is the exercise of constitutional discretion by the President justified under Article 201 of the Constitution of India? Can a time limit be imposed for the exercise of discretion by the President under Article 201?
The Constitution Bench has answered three questions 5, 6 and 7 together. The Constitution Bench has said that the text of Articles 200 and 201 has been prepared in such a way as to provide flexibility to the constitutional authorities to act. Without a time limit fixed in the Constitution, it would not be right for the Court to legally set a time limit for the exercise of powers under Article 200. According to the argument given for the Governor, the President’s approval under Article 201 is not within the scope of judicial review.
8- Is the President required to seek advice and opinion from the Supreme Court under Article 143 when the Governor reserves a Bill for the assent of the President or otherwise?
The Constitution Bench held that the President is not required to seek the advice of the Court every time a Bill is reserved by the Governor.
9- Are the decisions of the Governor-President under Articles 200 and 201 subject to judicial review at the stage of pre-enactment of the law?
Such decisions are not subject to judicial review at the stage of pre-enactment of the law, the Constitution bench said. Bills can be challenged only after they become law.
10- Can the exercise of constitutional powers and orders of the President/Governor be replaced in any way under Article 142?
The Constitution Bench said, such orders cannot be overridden by the Court in any way under Article 142. We clarify that the Constitution, particularly Article 142, does not allow the concept of ‘deemed assent’ to Bills.
11- Is a law made by the State Legislature a law applicable without the consent of the Governor?
The bench said, under Article 200, no question of implementation of a law made by the state assembly without the approval of the Governor arises. Under this, no other constitutional authority can change the executive role of the Governor.
12- Is it not necessary for any bench of this Apex Court to first decide whether the question involved in the proceedings before it is such that it involves essential questions of law regarding the interpretation of the Constitution?
The Constitution Bench returned this question without answering, because this question is not related to the nature of this context.
13- Are the powers of the Supreme Court under Article 142 limited to matters of procedural law?
The Constitution Bench said that its answer has been given in question number 10.
14- Does Article 131 bar any other jurisdiction of the Supreme Court to resolve disputes between the Central Government and State Governments other than litigation?
The Constitution Bench termed this question meaningless.