Government Pushes Back Against the Judiciary

In April the Supreme Court delivered a far-reaching judgment that encroached greatly into the domain of the executive. In its judgment on the powers of the Governors to withhold assent to Bills, the court not only prescribed a time limit for a Governor to take a decision but also prescribed a time limit on the President to assent/withhold assent to a Bill reserved for her consideration.

The executive is now pushing back against the court’s over-reach. The Times of India on Thursday reported that the President has now invoked her powers under Article 143(1) of the Constitution to seek the Supreme Court’s opinion on its judgment. The article enables the President to seek the court’s opinion on a “…question of law or fact…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…” The President has sent a list of 14 questions concerning the judgment to the court.

Download: Reference in Tamil Nadu Case

In the April judgment, which originated in Tamil Nadu, involved the interpretation of Article 200 of the Constitution that deals with the powers of a Governor to give or withhold assent to a Bill. The original article in the Constitution, before it was interpreted by the Court in April, allowed for some discretion to the Governor in the matter. The court took away those discretionary powers. The article spelled that the Governor shall return the Bill “as soon as possible” to the state legislature in case he wants the latter to reconsider the Bill. The court interpreted “as soon as possible” to imply a time limit of three months. It prescribed the same time limit for the President to take a decision in case the Bill is reserved for her consideration by the Governor. The President’s powers in this respect are outlined in Article 201. In case the Governor returns it Bill to the state legislature and it is passed again, he has only one month to give assent to the Bill after the court’s interpretation.

The Constitution does not list any time limits in these articles for the President and the Governor to take a decision.

The 14 questions listed by the President are exhaustive. They fall in two buckets. The first set involves specific questions about the powers of the Governor and the President on Bills. The second set, raises questions about the powers of the court and the limits on these power from an interpretive perspective.  For example, one question is “Is Article 361 an absolute bar to judicial review in relation to the actions of a Governor under Article 200?” Article 361 gives protection to the President and Governors for actions taken by them while performing their duties. Article 361(1) states that, “The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:” In its judgment in April, the Supreme Court did not consider this provision to be a bar while prescribing time limits for the President and Governors.

Another, very important, question deals with Article 145(3). That article and the particular clause, state that, “[The minimum number] of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:” The President’s question is “In view of Article 145(3) is it not mandatory for any bench of the Supreme Court to first decide whether the question involved in the proceedings before it is of such nature which involves substantial questions of law as to the interpretation of Constitution and to refer it to a bench of minimum five judges?” The court’s judgment on the powers of the President and the Governors was decided by a two-judge bench.

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