Presidential Reference | Issues Raised & Key Observations By Supreme Court

The Presidential Reference on 14 questions referred by the President Droupadi Murmu concluded on September 11, after 10 days of hearing. A five-judge bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing the reference made a month after the Tamil Nadu judgment was delivered wherein, a bench comprising Justice JB Pardiwala and Justice R Mahadevan declared 10 Bills as having got "deemed assented" noting the Governor acted mala fide in sitting over Bills, the oldest pending since 2020, and then reserving it for the President after they were re-enacted by the Tamil Nadu State Assembly. The two-judge bench laid down timelines, stating that the President must decide on the reserved Bills within three months, and if the Governor decides to withhold assent or reserve for the President upon the aid and advice of the Council of Ministers, he must choose forthwith within one month. If the Governor reserves the Bill for the President's consideration on grounds of patent unconstitutionality, the latter ought to seek the Court's advice under Article 143. It was also held that the actions of both the President and the Governor are amenable to the Court's jurisdiction. During the 10 days of hearing, Attorney General for India R Venkataramani, Solicitor General Tushar Mehta, Senior Advocates Harish Salve(for Maharashtra), Siddharth Luthra (for Andhra Pradesh), Maninder Singh (for Rajasthan), Mahesh Jethmalani(for Chhattisgarh), Additional Solicitor General KM Nataraj (for Orissa and Uttar Pradesh), Neeraj Kishan Kaul, and Additional Solicitor General Vikramjit Banerjee(for State of Goa) argued in favour of the reference. Senior Advocates KK Venugopal (for Kerala), Gopal Subramanium (for Karnataka), Kapil Sibal (for West Bengal), Dr Abhishek Manu Singhvi (for Tamil Nadu), Arvind P Datar(for Punjab), and S Niranjan Reddy (for Telangana) argued opposing the reference.Here is the summary of the brief arguments led by the parties:Can the Court sit in intra-Court appeal over Article 143 jurisdiction?Union: By taking support from the 2G reference, the Union argued that although the two-judge bench judgment in the Tamil Nadu Governor's case is binding on the parties, nothing prevents the Court from holding that the view of law expressed is wrong. It was submitted that the Court can even overrule a previous decision because it is doing so by exercising its inherent jurisdiction. Since "functional disharmony" has arisen as there is no authoritative pronouncement in this matter, the Court can decide the case for once and all.States: States argued that the issues raised in the reference are more or less settled issues of law after the Tamil Nadu, Punjab and Telangana judgments, and the Court can't sit over appeals in advisory jurisdiction because the law laid down in these judgments is binding under Article 141. It also raised why the Union neither filed a review nor a curative. States like Tamil Nadu and Kerala raised preliminary objections that this reference is nothing but an "appeal in disguise". A reference in this regard was made to the Cauvery dispute to support their arguments. The State of West Bengal also argued that the issues raised in the reference are vague and general, unlike any other reference made in the past, where only specific issues were raised and the Court was not asked to opine based on the likelihood of something happening in the future. Court: On Day 1, the Court clarified that it would express its view on the law and not sit as an appellate court over the Tamil Nadu judgment.Is the nature of powers exercised by the Governor executive or legislative under Article 200?Union: Union argued that the Governor exercises legislative powers under Article 200.States: It was argued that the Governor is a part of the legislative process because under Part VI, from Article 196 onwards to Article 200 is named as 'Legislative Procedure'. But he does not exercise legislative powers. What options do the Governor have in Article 200?Union: This is one specific issue where the arguments are more or less different from counsel to counsel. The Union and the Attorney General endorsed the "four-option theory". As per this four-option theory, the Governor can either grant assent, reserve it for the President in case of repugnancy, etc, or withhold the Bill in which case it lapses. It was argued that there was a fourth option by which the Governor can return the Bill to the Assembly for curable defect. If he exercises this option and if the Bill is returned to him unmodified or not upon his satisfaction, he can still exercise the power of reserving the Bill for the President's consideration.States: States opposing the reference argued that the Governor does not have four options. He has limited options, and in choosing those limited options, he is not exercising discretion but performing a "constitutional duty". As per States, the...

Presidential Reference | Issues Raised & Key Observations By Supreme Court

Gursimran Kaur Bakshi

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