16th May 2025 (15 Topics)
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President's reference to the Supreme Court (Article 143)
Context
President Droupadi Murmu has invoked Article 143 of the Constitution to seek the Supreme Court’s advisory opinion on 14 constitutional questions. This move follows a landmark judgment of the Supreme Court that imposed timelines on the President and Governors for deciding on state bills—a ruling that has triggered significant constitutional debate.
Brief Background:
- In recent years, several state governments have accused Governors of delaying or obstructing the assent to bills passed by their legislatures. One prominent instance involved the Tamil Nadu Governor withholding assent to 10 bills passed by the state assembly.
- In April 2024, a two-judge bench of the Supreme Court ruled that Governors and the President must act within defined timelines when dealing with bills:
- A Governor must give assent, withhold assent, or reserve the bill for the President’s consideration within three months.
- If a state re-enacts an identical bill, the Governor must act within a month.
- The President must decide within three months on a bill reserved by the Governor.
- The Court also held that in certain cases, assent would be deemed to have been given—a concept not explicitly mentioned in the Constitution.
- This prompted the President to seek clarity from the Supreme Court through a Presidential reference, as the judgment raised concerns about its alignment with constitutional provisions.
What is a Presidential Reference (Article 143)?
- Article 143 empowers the President to refer questions of law or fact to the Supreme Court for its advisory opinion.
- This is not a judicial proceeding but a constitutional consultation.
- The President may seek advice:
- (1) If it is of public importance or involves substantial questions of law, especially on constitutional interpretation.
- (2) After the enactment of any law, to understand its constitutional validity.
- The Supreme Court’s opinion under Article 143 is not binding on the President, but it holds persuasive value and is considered with great respect.
- The President has raised 14 important constitutional questions, indicating that the SC judgment has raised legal uncertainties, particularly because:
- The Constitution does not mention specific timelines for Governors or the President to act on bills.
- The SC’s direction to “deem assent” is being questioned as it may curtail constitutional discretion.
- There’s ambiguity over judicial review of decisions made by the President and Governors, who enjoy constitutional protections.
- Federal balance, judicial activism, and constitutional interpretation are under scrutiny.
Key-Constitutional Provisions Involved
|
Article |
Subject |
|
Article 200 |
Powers of the Governor on state bills: assent, withhold, return, or reserve for the President |
|
Article 201 |
When a Governor reserves a bill, the President can either assent or withhold. |
|
Article 143 |
President can seek advisory opinion of the Supreme Court. |
|
Article 142 |
Supreme Court's power to pass any order necessary to do complete justice. |
|
Article 361 |
Immunity for President and Governor from legal proceedings. |
|
Article 131 |
Supreme Court’s exclusive jurisdiction over Centre-State disputes. |
|
Article 145(3) |
Requires a five-judge bench for cases involving substantial questions of constitutional interpretation. |
Judiciary and Executive
- At the heart of this controversy lies the balance of power between the judiciary and the executive in interpreting and exercising constitutional discretion—particularly the role of the President and Governors in the legislative process.
- The key issues include:
- Whether timelines for granting assent can be judicially imposed when the Constitution does not explicitly mention them.
- Whether the concept of “deemed assent”, introduced by the Court, is constitutionally valid.
- The scope of judicial review over the discretionary powers of constitutional authorities like the President and Governors under Articles 200 and 201.
- The limits of judicial intervention under Article 142, which gives the Supreme Court power to do "complete justice".
- The proper forum and bench size (minimum five judges) for deciding such substantive constitutional questions.
Constitutional Discretion VS Judicial Review
|
Constitutional Discretion |
Judicial Review |
|
|
- This raises the question: Can courts dictate how constitutional discretion should be exercised, especially when timelines are not mentioned in the Constitution?
- The presidential reference argues that this judicial activism may erode the discretion granted by the Constitution and disrupt the federal balance.
- On the other hand, the judiciary views inordinate delays in giving assent as subverting democratic processes and harming the will of the elected legislature.
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