Supreme Court of India
NEW DELHI: Keeping aside objections of Kerala and Tamil Nadu govts on the maintainability of the Presidential reference, Supreme Court on Tuesday said it would give its opinion on the President’s 14 queries if it finds these raising important questions of law on SC’s power to fix timelines for her and governors in granting, withholding or refusing assent to bills passed by assemblies. After hearing senior advocates K K Venugopal for Kerala and A M Singhvi for TN, a five-judge bench of CJI B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar asked, “Are you really serious in raising preliminary objections?” CJI said, “We are not deciding the validity of the (April 8) Tamil Nadu judgment (regarding its governor’s role on bills). We are only deciding Presidential reference and will be giving an advisory opinion.” Kant said, “We will first decide whether a question of law of public importance has been raised in the reference.” Opinion given by a Constitution bench of SC is binding on all, Mehta tells court Singhvi said SC cannot overturn the two-judge bench’s April 8 judgment in the Tamil Nadu case through an advisory opinion and that if the opinion expresses a view contrary to that expressed in the Tamil Nadu case, then there would be two sets of constitutional laws – one for TN on the governor’s role on bills and the opinion applicable to all other states. Solicitor general Tushar Mehta cited a few judgments to argue that the opinion given by a Constitution bench of SC is binding on all and can even overturn views expressed by a bench on similar issues. Both AG R Venkataramani and Mehta, supported by senior advocates Harish N Salve, N K Kaul and Maninder Singh, argued in support of the Presidential reference and said in the light of the two-judge bench’s judgment, but without referring to the facts of that case, the President felt an authoritative pronouncement from SC was needed given that there had been a series of disjointed pronouncements on the core issue.Venkatramani’s arguments outlined the Centre’s unease over SC, through its April 8 judgment, foraying into the legislative domain and amending constitutional provisions on the roles of governors (Article 200) and the President (Article 201) in relation to their power to give or deny assent to bills passed by legislatures, and said the two-judge bench should have referred the constitutional issues to a five-judge bench as mandated by Article 145(3) of the Constitution and not ventured to decide them. By prescribing timelines, “SC looked upon the President as an ordinary statutory authority and asked her to give assent to a bill within a specified time without examining whether the bill is unconstitutional, against the national policy framed by the Union govt or against the national interest,” the AG said. Venkataramani also faulted SC using its exclusive powers under Article 142 to mandate the President to seek advisory opinion of the court under Article 143 whenever she had doubts about constitutionality of a bill. “SC robbed the highest constitutional authority of the power to think, and decide the legality or constitutionality of a bill,” he said, adding that another unthinkable part of the SC judgment was the use of Article 142 powers to grant ‘deemed assent’ to bills. Without referring to facts of the case where the TN governor had long delayed granting assent to bills, the bench asked the AG, “If the facts of a case on egregious delay (on the governor’s part) comes for adjudication before a constitution bench of SC, can you suggest what should be the court’s approach?” The AG said even if a constitution bench can examine the issues, under no circumstance could the court either amend the Constitution or assume the role constitutionally assigned to the governor to grant “deemed assent” to bills. “If this is permissible, then for every small mistake or delay, the states would approach SC for grant of deemed assent.” Mehta supplemented the AG’s arguments and said the CJI-led five-judge bench could keep the TN facts aside and give an ideal interpretation of Articles 200 and 201. “Some mistakes committed by a governor or a minister or anyone in a given case should not be the guiding factor for interpreting constitutional provisions,” he said. The SG will continue his arguments on Wednesday.
