President asks SC on assent to Bills: Can court impose timelines to decide?

The reference pointed out that “there are conflicting judgments of the Supreme Court as to whether the assent of the President of India under Article 201 of the Constitution of India is justiciable or not”.

Under Article 145 (3), when the President makes a reference for the court’s opinion, it is placed before a five-judge bench. In the Ayodhya dispute, the apex court, citing pendency of the case, had declined to answer the question referred to it on whether a temple existed below the disputed structure.

Article 143 (1), which was invoked by the President to seek the court’s opinion, says that “if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is  of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon”.

On April 8, the Supreme Court 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. Under Article 201 of the Constitution, no timeframe has been set for a Presidential decision.

The top court had said that “in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed” to the state concerned.

The court, in its ruling, declared the action of Tamil Nadu Governor R N Ravi as illegal and erroneous in reserving 10 Bills for consideration of the President in November 2023 after they had already been reconsidered by the Assembly.

In her reference to the Supreme Court, President Murmu sought to know: “Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable? ?In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?”

“Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable? Is Article 361 of the Constitution of India an absolute bar to judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India? ???In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?”

President Murmu asked whether “in light of the constitutional scheme governing the powers of the President”, she “is required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?”

“Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?”

The President also asked: “Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?”

Some of the other questions referred to the top court are: “??What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?; ???Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?”

President Murmu pointed out that Article 200 of the Constitution, which prescribes the powers of the Governor and the procedure to be followed while assenting to Bills, withholding assent to Bills and reserving a Bill for the consideration of the President, “does not stipulate any time frame upon the Governor for the exercise of constitutional options”.

Article 201 prescribes the powers of the President and the procedure to be followed while assenting to Bills or withholding assent therefrom, but “does not stipulate any time frame or procedure to be followed by the President for the exercise of constitutional options under” it.

The reference pointed out that the Constitution enlists numerous instances where the assent of the President has to be obtained before a legislation can take effect in a State.

It said that “the exercise of constitutional discretion by the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively are essentially governed by polycentric considerations, inter alia being federalism, uniformity of laws, integrity and security of the nation, doctrine of separation of powers”.

The President said, “States are frequently approaching the Supreme Court of India invoking Article 32 [and not Article 131] of the Constitution of India raising issues which by their very nature are federal issues involving interpretation of, inter alia, the Constitution of India.”

The reference also said that “the contours and scope of provisions contained in Article 142 of the Constitution of India in context of issues which are occupied by either constitutional provisions or statutory provisions also needs an opinion of the Supreme Court of India.”

The President also said that “the concept of a deemed assent of the President and the Governor is alien to the constitutional scheme and fundamentally circumscribes the power of the President and the Governor”.