Tamil Nadu, Kerala oppose Presidential reference on state Bills

The governments of Tamil Nadu and Kerala on Tuesday opposed Presidential reference on Bill timelines even as the Supreme Court wondered what was wrong in the President seeking to know from it if fixed timelines could be imposed on governors and the President for acting on bills passed by state legislatures.

As a five-judge Bench led by CJI BR Gavai commenced hearing, senior counsel KK Venugopal and AM Singhvi, representing governments of Kerala and Tamil Nadu respectively, raised questions as to maintainability of the Presidential reference.

Singhvi said there cannot be an “intra-court appeal directly or indirectly” by filing the reference under Article 143. “This court is being asked to change the contents and substance of a judgment between two different parties and this is a subversion of institutional integrity…. This is an appeal... howsoever nicely you camouflage it,” he told the Bench which also included Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.

The power under Article 143 cannot be used as an intra-court appeal and nor is it a substitute for review or curative powers, Singhvi argued.

Venugopal said similar questions regarding Article 200 of the Constitution, which requires governors to act “as soon as possible” on state bills, were already interpreted by the top court in cases concerning Punjab, Telangana and Tamil Nadu. “Once judgments cover the field, a fresh presidential reference cannot be entertained,” he said, adding the Centre should have sought a formal review instead of invoking Article 143 to seek a Reference by the President.

“When the President herself is seeking reference, then what is the problem? Are you really serious about contesting this? It is very clear that we are sitting in an advisory jurisdiction,” the Bench said at the outset, clarifying that it will express its views only on questions of law and not on the April 15 verdict in the Tamil Nadu case.

Attorney General R Venkataramani opposed the submissions of Venugopal and Singhvi.

"Can the court go to the extent where it says let me take pen and paper and rewrite the constitution?" Venkataramani asked and went on to say that Article 142 cannot be used to create a new edifice ignoring constitutional provisions.

The Bench sought to know from the Attorney General what would be the constitutionally permissible recourse if the court was confronted with a situation where the Governor was keeping Bills pending for several years. “If the Court is wrong in declaring ‘deemed assent’ for the Bills, what should be the next option? It asked.

Venkataramani said even in such an undesirable fact situation, the court cannot take over the functions of the Governor and declare assent for the Bills. "You bind the hands of the President. The highest consideration of whether to assent or not must remain open," he said.

Solicitor General Tushar Mehta submitted that the Constituent Assembly had consciously decided not to set timelines for the President and Governors to act on Bills. "There was a timeline proposed. It was done away with consciously… conscious omission on the part of the Constituent Assembly," he submitted. Dr. BR Ambedkar had moved an amendment to delete the time limit of six weeks proposed for the President to grant assent to money bills under Article 111, he said. The hearing will resume on Wednesday.

Under Article 143 of the Constitution, the Supreme Court can render an opinion that a certain judgment does not lay down the correct law but it will not overrule the judgment, Justice Kant 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 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.