Opinion Presidential reference in TN Governor case puts a stark choice before Supreme Court
Court can uphold its directions (however modified) and risk being accused of overreach, or allow a fundamental breakdown of constitutional order.
A matter as important as this ought to have been referred to a five-judge Bench in the first place. 
Can the Union government, through a Presidential Reference under Article 143 of the Constitution, ask the Supreme Court to overturn the two-judge bench judgment curbing the powers of the Governor to refuse assent to legislation? The short answer is “no”. Article 143 relates to the Supreme Court’s “advisory” jurisdiction. An advisory cannot overturn a verdict that has attained finality.
The Supreme Court also said as much in its judgment In re Natural Resources Allocation (2012) — this was the last time a Presidential Reference was made. Then President Pratibha Patil made such a reference after the apex court had set aside the 2G spectrum allocation process and ruled that auctions were the only way to distribute telecom spectrum. Like in State of Tamil Nadu vs Governor of Tamil Nadu, this reference, too, was perceived as bench-hunting by the United Progressive Alliance (UPA) government in a bid to overturn the 2G spectrum verdict. However, the five-judge Bench hearing the reference held that while the 2G spectrum verdict had attained finality, the finding of law could be made clearer: Auctions were not the only way to distribute scarce natural resources, provided there was a good justification for not doing so.
Therefore, while the judgment of the two-judge bench of the SC in the Tamil Nadu Governor case is final, its findings on the law may still be tweaked by the five-judge Bench hearing the Presidential Reference. The Natural Resources Allocation case is one instance where the five-judge Bench subtly changed the legal position laid down by an earlier bench.
In 1998, another Presidential Reference was used to modify the ruling of a previous Bench on judicial appointments. While upholding the collegium system of judicial appointment (first laid down in the Supreme Court Advocates on Record case in 1993), the SC modified the composition of the collegium and other elements of the process.
Should the Supreme Court modify the law laid down in the TN Governor case, merely because it can do so? The Court could very well refuse to answer the questions posed to it (as it did in the Ismail Faruqui case in the context of the Babri Masjid dispute). It could ask whether it is necessary to re-examine the guidelines (for the Governor and the President), as they have not yet led to any problem.
However, there are two good reasons, I would argue, why the Court should take up this reference and send a detailed opinion to the President. I have, in an earlier article in this newspaper (‘Court gives itself a power too many’, IE, April 18), outlined my concerns with the law laid down by the two-judge Bench. Two of these concerns, I believe, can be addressed by the SC in its advisory opinion.
First, a two-judge Bench holding that the Court can issue a mandamus to the President to clear a bill goes against the grain of the constitutional position and role of the President. While the concern before the Bench is valid — can the Union government be allowed to stall state laws for partisan reasons — the solution proposed, where the President now acts on the Supreme Court’s “advice” or “direction”, is perhaps not the best possible one. Perhaps a more acceptable and constitutionally viable solution can be found — a solution that does not potentially hinge on the apex court having to issue orders of contempt to the President.
Second, a matter as important as this ought to have been referred to a five-judge Bench in the first place. This is because the fundamental presumptions behind the idea of a larger Bench are that more judges on a Bench lead to better reasoning and more diverse points of view being expressed. As legal scholars Nick Robinson and Jyotika Randhawa have pointed out in a recent article, there are, unfortunately, no clear guidelines on the matter as to how and when a case should be referred to a larger Bench when a substantial question related to the interpretation of the Constitution arises. There is, therefore, an opportunity for the apex court here to also lay down comprehensive guidelines for itself on how a case should be referred by a two-judge Bench to a larger Bench, especially when it relates to the interpretation of the Constitution.
In answering the reference, the most important thing the Court ought to keep in mind is that it is not just dealing with issues of federalism and the powers of the judiciary versus those of the executive. It is confronting and trying to prevent a complete breakdown in the constitutional order — a breakdown that is caused by authorities who simply refuse to carry out their constitutional duties out of pure partisan considerations. The Court is, therefore, faced with a stark choice — uphold the directions (however modified) and risk being accused of overreach or allow a fundamental breakdown of constitutional order.
One hopes that the Court finds the judicial courage to stare down the (inevitable) criticism and do what is necessary to uphold the constitutional order.
The writer is a co-founder of the Vidhi Centre for Legal Policy and an advocate
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