Presidential Reference: Five-judge Constitution Bench to commence hearing on Tuesday

The Supreme Court will on Tuesday commence hearing on the Presidential Reference to examine issues arising out of the top court’s recent verdict setting deadlines for assent to state Bills by governors and the President under Article 200 and Article 201 of the Constitution. Headed by Chief Justice of India BR Gavai, the Bench includes Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.

CJI Gavai called on President Droupadi Murmu at Rashtrapati Bhawan here on Monday. Incidentally, the meeting happened on the eve of the crucial hearing.

Noting that Article 142 does not empower the Supreme Court to create a concept of “deemed assent,” turning the constitutional and legislative process on its head, Solicitor General Tushar Mehta has warned the top court of “a constitutional disorder”.

In his written submissions filed in the Supreme Court last week, Mehta said, “The grant of assent to a Bill by a Governor being a legislative function, there is no purely judicial direction that can be issued to achieve the same result….”

“It is respectfully submitted that this Hon’ble Court cannot, by itself, even under Art. 142, cannot assume the power granted by Art. 200 exclusively to the Governor and declare that a Bill is deemed to have been assented by the Governor, and, that it has, consequently, become an Act...,” he submitted.

“The alleged failure, inaction, or error of one organ does not and cannot authorise another organ to assume powers that the Constitution has not vested in it. If any organ is permitted to arrogate to itself the functions of another on a plea of public interest or institutional dissatisfaction or even on the justification derived from the Constitution ideals, the consequence would be a constitutional disorder not envisaged by its Framers,” the Solicitor General said.

The top court had on April 8 set aside Tamil Nadu Governor RN Ravi’s decision to withhold assent for 10 Bills and reserving them to the President even after they were re-enacted by the state assembly, terming it “illegal and erroneous”.

Invoking Article 143 of the Constitution, President Murmu had in May sought the Supreme Court’s opinion on 14 questions arising out of the verdict fixing deadlines for Governors and the President to take a call on Bills passed by state Assemblies.

The Supreme Court’s opinion on a Reference under Article 143 is not binding on the President and it’s not a binding law within the meaning of Article 141. It’s open to the top court to answer the reference or not. However, in case it does not want to answer the Reference, the court has to give reasons.

“The only course open to this Hon’ble Court under Art. 142 is a declaration as to the constitutional duty of the Governor…, coupled with a ‘request’ to the Governor to decide the same “as soon as possible”, just as is done routinely by this Hon’ble Court in its requests to various High Courts...,” Mehta submitted.