Presidential Reference: Solicitor General warns of ‘constitutional disorder’ due to misuse of Article 142

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, 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.

A five-judge Constitution Bench of the Supreme Court will commence hearing on August 19 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.

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 Droupadi 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 Solicitor General said, “While there may be some limited issues in the operationalisation of assent procedure, power in certain hypothetical situations, the same cannot result in relegating the high position of gubernatorial office to a subservient one. The position is politically plenary and represents high ideals of democratic governance. The perceived issues, if any, deserve political answers and not necessarily judicial.”

“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...”

In exercise of its powers under Art. 142, the top court “cannot assume the (Governor’s) power to grant assent to a Bill under Art. 200, which is the sole preserve of the Governor” as a writ of mandamus cannot lie to the Governor, he said.

The Supreme Court, under Art. 142, cannot derogate from a constitutional provision, especially if it’s an embodiment of a basic feature of the Constitution, such as the separation of powers, he submitted.

Mehta sought to emphasise that no parallel can be drawn with the directions issued in A.G. Perarivalan (Rajiv Gandhi’s killer’s case), “which was a case of distinct jurisdictions with an overlapping result.”

Exercising its powers under Article 142 , the top court had set him free in May 2022 in view of inordinate delay on the part of the Governor in deciding his mercy petition under Article 161. Two-and-a-half-year after the recommendation of the State Cabinet to release him, the Governor had referred the issue to the President.