Supreme Court: ‘President ought to seek our opinion if Governor reserves Bill claiming it is unconstitutional’

Article 143 deals with the power of the President to seek the SC’s opinion on important questions of law or fact.

Acknowledging that it’s not mandatory for the government to accept its opinion, the SC added that the same “holds high persuasive value and should ordinarily be accepted by the legislature and the executive” and “merely because the jurisdiction under Article 143 is not binding does not undermine the principles used by this Court to determine the constitutionality of the bill.”

“We are of the considered view that although the option to refer a Bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of Bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality.”

It pointed out that in the 1978 decision in ‘In Re: The Special Courts Bill’, “the view taken” by the SC “was that consultative jurisdiction under Article 143 may avoid any possible challenges to the vires of a bill if it becomes an Act. On basis of the dictum in the said reference, we are of the considered view that constitutional courts are not precluded from making suggestions or opining about the constitutional validity of a bill before the same becomes a law.”

The top court said, “This is because preventing a patently unconstitutional bill from being enacted saves not only public resources but also respects the wisdom of the legislature by providing the constitutional functionaries associated with the process of passage of a legislation, to review the bill and take appropriate actions…The President’s recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government’s approach to bills reserved under Article 200.”

The SC said that “in such cases where a bill has been reserved majorly on the grounds of not being in consonance with the constitutional principles and involves questions of constitutional validity, the executive is supposed to exercise restraint. It is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143. We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill.”

The SC said seeking such legal opinion “is all the more necessary as there is no mechanism at the State level for the Governor to refer bills to the constitutional courts for their advice or opinion thereupon. Under the scheme of the Constitution as we see it, there is only one possible way for the Governor to ascertain the palpable constitutionality of a bill, which is by way of reserving it for the consideration of the President who in turn is then expected to invoke Article 143.”

Writing for the bench, Justice Pardiwala pointed out that such “constitutional obligation” can also be found in Sri Lanka and Republic of Kiribati.

“This very same constitutional obligation cast on the President is also provided in Article 154H of the Constitution of Sri Lanka wherein if the Governor is of the opinion that a statute enacted by a provincial council is unconstitutional, then he may refer the bill to the President who in turn is obligated to make a reference to the Supreme Court of Sri Lanka for obtaining pronouncement on the constitutional vires of such bill. Where the Supreme Court holds the statute to be constitutional, then the Governor is bound to grant assent,” the top court pointed out.

It added, “a similar framework is followed in the Republic of Kiribati where Section 66 of the Constitution of Kiribati allows the Beretitenti, who is the constitutional head of the State, to withhold assent to a bill only if he believes that such bill is inconsistent with the constitution. In such a case, he may return the bill back to the Parliament however, if the bill is passed again then the only option left with the Beretitenti is to either assent or to refer its vires to the High Court for a declaration. If the court declares the bill to be constitutional then the assent must be granted forthwith.”

The Supreme Court pointed out that both the Sarkaria and Punchhi Commissions had “categorically recommended the President to seek the opinion of this Court under Article 143 in respect of bills that may be apprehended to be patently unconstitutional.”

It said, “we are in agreement that one of the object of Article 201 is also to prevent a bill that is perilous to democratic principles. However, we are also of the view that a bill appearing to be unconstitutional must be assessed by a judicial mind. It is for this reason that both the Sarkaria Commission and the Punchhi Commission categorically recommended the President to seek the opinion of this Court under Article 143 in respect of bills that may be apprehended to be patently unconstitutional.”

The ruling also spoke of the manner in which the SC would exercise its power in case of such a reference.

It said that the court “in such situations…has to be mindful as to whether the reference received from the President under Article 143 pertains to pure legal questions regarding interpretation of the Constitution or questions that are in the nature of a policy consideration. In case of the latter, the Supreme Court, having regard to the relevant facts and circumstances, can refuse to express its advisory opinion upon being satisfied that the questions presented to it are purely socio-economic or political questions and have no relation to the Constitution.”

The judgement added that “the exercise of a self-imposed restraint by the court in matters involving purely political considerations is in consonance with the doctrine of political thicket, that is, the courts do not venture into areas of governance in which the Constitution gives a prerogative solely to the executive.”

It said, “for instance, the question whether a State legislation repugnant to a Central law should be assented to by the President or not under Article 254(2) is largely a policy decision on part of the Union Government. In such matters, the court has its hands tied and does not attempt to encroach into the functions of the executive wing.”