Explained: SC to hear President’s reference to it on timeline to assent to bills

President Droupadi Murmu on May 13 invoked the Supreme Court’s advisory jurisdiction on the time limit to assent to bills. This was done under Article 143(1) of the Constitution, wherein the President may refer a “question of law or fact” to the Supreme Court for its opinion. The opinion, unlike a ruling, is not binding.

The reference was made five weeks after the SC’s April 8 ruling in which it fixed a three-month deadline for the President to clear Bills reserved for her consideration by the Governor. That ruling, by a two-judge Bench headed by Justice J B Pardiwala, set aside Tamil Nadu Governor R N Ravi’s decision to withhold assent to 10 pending Bills.

What is the SC’s advisory jurisdiction?

The Constitution extended the provision in the Government of India Act, 1935 to seek the opinion of the Federal Court on questions of law to questions of fact, including certain hypotheticals.

A question under Article 143 may be referred if it “has arisen, or is likely to arise”, and “which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court”.

Article 145(3) requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion.

Under the Constitution, the President acts on the aid and advice of the Cabinet. The advisory jurisdiction allows her the means to seek independent advice to act on certain constitutional matters. It is a power that the President has invoked on at least 15 occasions since 1950.

Can the SC decline to answer a presidential reference?

Article 143(1) states the court “may, after such hearing as it thinks fit, report to the President its opinion thereon”. The word ‘may’ indicates that it is the court’s prerogative to answer the reference. The SC has so far returned at least two references without answering.

🔴 In 1993, then President Shankar Dayal Sharma asked the SC “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid…in the area on which the structure stood.”

The SC unanimously refused to answer this as a civil suit on the dispute was already pending before the courts.

Justices AM Ahmedi and S P Bharucha declined to answer also on the grounds that the reference was against secularism, and hence unconstitutional. The judges also expressed apprehension that the government could use the SC opinion as a springboard to politically negotiate the issue.

🔴 The SC did not answer a 1982 reference made by President Giani Zail Singh on the constitutionality of a proposed law that sought to regulate the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947 and May 14, 1954 to Jammu and Kashmir.

However, after the President’s reference, the Bill was passed for a second time, and the Governor gave his assent. Petitions challenging the validity of the laws were also moved before the SC.

Since advisory jurisdiction is not binding as a precedent, even if the SC had held the law to be unconstitutional in the Article 143 reference, it would still have to decide its validity in the other batch. The SC’s opinion would also be futile since the issue was no longer before the President.

Can the SC overturn its April 8 decision through the presidential reference?

In its 1991 opinion on the Cauvery Water Disputes Tribunal, the SC said that Article 143 is not a mechanism for the executive to seek review or reversal of established judicial decisions of the Supreme Court.

“When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is,” the opinion said.

The SC also said it could not “countenance a situation” where a question in a reference “may be so construed as to invite our opinion” on a settled decision of the court.

“That would obviously be tantamount to our sitting in appeal on the said decision which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said decision through a Reference under Article 143…,” the court said.

The government can, however, file for a review of the April 8 ruling, and can move a curative petition in an attempt to reverse it.

Since the judgment was by a two-judge Bench, and similar cases from other states, including Kerala and Punjab, remain pending, it is possible that another Bench might refer it to a larger Constitution Bench.

Is the presidential reference only about the April 8 ruling?

The reference contains 14 questions of law, which are mostly drawn from the April 8 ruling, but are not limited to it. The last three questions raise larger issues on how the SC exercises discretionary powers provided by the Constitution.

🔴 Question 12 asks whether the SC must first determine if a case involves a “substantive question of law” or requires “interpretation of the Constitution” that only a larger Bench can hear. This question essentially asks whether smaller Benches can hear such important matters.

🔴 In Question 13, the reference raises questions on the use of Article 142 of the Constitution, which is the discretionary “power to do complete justice”.

🔴 The last question asks the SC to define the contours of Centre-state disputes that can be heard by any court. Article 131 states that “subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute.”

What is the broader context behind the presidential reference?

The issues in the R N Ravi case essentially arise out of the interplay of powers between the Centre and Opposition-ruled states. Governors, who are appointed by the Centre, are seen to be undercutting elected state governments by their refusal to clear Bills passed by the Assembly.

While the SC addressed this issue in its April 8 judgment, it extended its scrutiny to the powers of the President as well, and set a three-month timeline to clear Bills reserved for her consideration by the Governor. Governor Ravi, under fire from the SC for withholding assent, had referred 10 Bills to the President.

The SC in its ruling allowed states the right to seek a “writ of mandamus” from the SC against the President. This is essentially a right to knock on the doors of courts seeking a directive against the President if she does not decide on the Bills within the prescribed time limit.

The government used the ruling to argue that the judiciary was undermining Parliament or the people’s mandate. Attorney General for India R Venkataramani said the President “was not heard” before the SC passed directives for her office to follow.

Vice President Jagdeep Dhankhar criticised the ruling. He has raised the issue of “Parliamentary supremacy” on several occasions, and called for limited judicial review and greater adherence to the separation of powers.

That said, such tussles between Parliament and the judiciary are as old as the Constitution itself.

In the first three decades after Independence, courts and the government sparred on the interpretation of the right to property, leading to constitutional amendments and adverse court orders. Eventually, in the landmark 1973 Kesavananda Bharati ruling, the court allowed land reforms, watering down the fundamental right to property, but severely restricted Parliament’s powers to tinker with any other fundamental right.

This is an updated version of an explainer first published on May 15.