The Supreme Court on Thursday reserved its decision on the reference made by President Droupadi Murmu, even as it repeated the query as to whether it was powerless to act when other organs of the state failed in discharging their duties. The Centre, meanwhile, argued that the court issuing mandamus to a coordinate constitutional organ would violate the principle of separation of powers.
“I publicly say that I am a strong believer in the doctrine of separation of powers, and though judicial activism has to be there, it should not turn into judicial terrorism…at the same time, if one wing of the democracy fails in discharging its duties, would the court which is the custodian of the Constitution be powerless and it will have to sit idle…?” Chief Justice of India (CJI) B R Gavai, presiding over the five-judge Constitution bench which heard the reference, asked.
The query came as Solicitor General Tushar Mehta, appearing for the Centre, told the bench also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar that “the question is would one constitutional organ issue a mandamus to another coordinate constitutional organ when there is a discretion available, when there are four options, where there are no time limits prescribed by the Constitution….?”
Responding to the CJI’s comments, Mehta said, “Let us be very clear. Not only the court, the executive is also a custodian of the fundamental rights of the citizens; the legislature is also custodian of fundamental rights of citizens, every three organs is… My respectful submission is that issuing a mandamus with regard to a legislative discretionary function of a co-ordinate constitutional functionary would violate the theory of separation of powers, which is a part of basic structure.”
Mehta also recalled the April 16, 2022, judgment in P Ramachandra Rao vs State of Karnataka, wherein the Supreme Court had laid down that a time limit cannot be fixed for the conclusion of trial proceedings.
On April 8 this year, a two-judge Supreme Court bench while hearing the case related to pending Bills in Tamil Nadu, had set a timeline for governors to act on pending Bills, and, for the first time, prescribed that the President should take a decision on the Bills reserved for consideration by the governor within three months from the date on which such reference is received. In a reference to the Supreme Court in May, President Murmu posed 14 crucial questions on the verdict.
The Constitution bench began hearing in the matter on August 19.
Winding up arguments on Thursday, Mehta told the bench, “Lordships have the jurisdiction and power to declare that the Tamil Nadu judgment is not the correct law.”
He said, “There was an extreme argument that you cannot do anything about Tamil Nadu view; I am not talking about the judgment. Intra-party, the judgment is final. That is the law of the land; it binds us. We cannot argue contrary to it. But my lordships have the jurisdiction and power to declare that the Tamil Nadu judgment is not the correct law. That is what, as a last proposition, I would like to submit…”.
Senior Advocate Kapil Sibal, appearing for West Bengal, however, said this was not a question referred to the bench. The CJI then said that it will only be answering those questions asked in the reference.
Mehta pointed out that Senior Advocate Arvind Datar, who appeared for Punjab, had taken the stand that the reference bench cannot undo the Tamil Nadu judgment. The senior law officer said that the court had inherent powers “to reverse the earlier view expressed while maintaining the decree intra-parte…”. He urged the bench, “Please say, it is not the correct law which is laid down.”
Mehta also said that the Tamil Nadu judgment fixing timelines would lead to unwanted litigation. “Visualise a situation. The judgment of this court in Tamil Nadu says that if the President does not decide within three months or the governor does not decide within one month, you can come to us. Now, the state comes before Your Lordships and the prayer would be to direct the governor to grant assent…Can that be done? Can a writ of mandamus be issued to either the hon’ble President or the governor to grant an assent?”
The problem would not end with that, he added. “Somebody moves an application or files a separate petition that no, prevent the governor from granting assent and to refer the Bill to the President because there is repugnancy (with a central law). Thus, two petitions will be listed and there will be some MLAs who will file a separate petition that no, prevent the governor from either to grant assent or refer it (to President), but ask him to return it to the House because when the Bill was passed, the chief minister was enjoying the majority confidence, now we don’t want that to happen. Would then your lordships be in a position to substitute what option the governor would exercise?” he said.
Hearing the reference on September 9, the bench too had flagged concerns that the Tamil Nadu verdict could lead to a lot of litigation. “The fear is you are dragging the court into a situation where the legislative process is getting completely monitored and controlled through the processes of the court…there is expediency and requirement for legislative process to be completed within a time, but to fix a time schedule, the biggest risk the court takes more than anybody,” Justice Narasimha had said then.
