P Chidambaram: ‘Presidential Reference is unusual… Government is saying SC order was wrong’

If aggrieved, the government should have sought a review of the original judgement (by the Supreme Court, settling timelines for Governors and Presidents on Bills). Failing the review, the government could have filed a curative petition. A Presidential Reference is, in my view, unusual on the facts and circumstances of the matter.

* What questions asked by the President, you think, are valid, Constitutional ones?

The issues that have been posed by the President to the Supreme Court are questions that concern the interpretation of the Constitution. They are indeed relevant, but they have been answered by the Supreme Court. The government is actually saying that the original judgment of the Supreme Court is ‘wrong’. If that is the contention, the government should have filed a review petition.

* In Question No. 13 in the Presidential Reference, the government has sought to know if the ‘powers of the Supreme Court under Article 142 of the Constitution are limited to matters of procedural law or Article 142’, or extended to issuing directions or passing orders that ‘are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force’.

I am afraid Question No. 13 is rather convoluted. Article 142 confers power upon the Supreme Court to pass a decree or make such order. The use of the words ‘decree’ and ‘order’ indicate that the power under Article 142 can be used in cases involving substantive questions of law and cases concerning procedural questions.

* Do you agree with the argument that in its order, in the case between Tamil Nadu Governor R N Ravi and the DMK government, the Supreme Court gave itself a toehold in the law-making process? 

The Supreme Court judgement, by and large, confined itself to the process of the Governor giving assent to a Bill, or returning the Bill to the Legislature for reconsideration, or referring it to the President. The issue that may be debatable is advising the President to seek the opinion / advice of the Supreme Court. The principal issue in the case before the Court was about the powers of the Governor under Article 200 of the Constitution. The language of both Articles 111 and 200, insofar as it concerns assent to a Bill, is the same. I think the same principles will apply to Articles 111 and 200.

* What do you think of the guardrails imposed on the Governor and a three-month timeline set for the President? 0

If Governors sit on Bills indefinitely and exercise a ‘pocket veto’, the only way out of the impasse is to fix a time limit (for the Governor). In my view, there is no error committed by the Court in fixing a time limit.

* What do you see as the best outcome of the Presidential Reference?  

The Supreme Court may accept some questions and render an opinion or advice, and decline to accept some questions. I cannot speculate on what the Supreme Court will do.