New Delhi, India – The Supreme Court of India on Tuesday, said it would begin lengthy hearings on the extraordinary presidential reference about the powers of governors and the President over state bills. On August 19, a five-judge Constitution bench will hear the important case that looks into whether these constitutional agencies can be forced by the courts to act on state assembly legislation within set time frames.
The bench, which is led by Chief Justice of India Bhushan R. Gavai and includes Justices Surya Kant, Vikram Nath, PS Narasimha, and Atul S Chandurkar, has set up a long nine-day hearing schedule that will last till September.
The court agreed to first hear preliminary objections from the states of Kerala and Tamil Nadu over whether the reference could be maintained. This will happen before the Union government and any groups that support it are allowed to make their case.
Senior lawyers KK Venugopal, who is from Kerala, and Abhishek Manu Singhvi, who is from Tamil Nadu, were able to articulate why they think the reference should be returned right away. They say that it is an attempt to re-litigate settled law and that it is really an appeal that is being passed off as a constitutional reference.
The Constitution bench has told everyone to turn in their written arguments by August 12. Then, on August 19, 20, 21, and 26, the hearings will continue with arguments from the Union government and states that support it. States that don’t agree with the reference have been given the dates of August 28, September 2, 3, and 9. On September 10, the Union administration will then give its arguments in response.
Advocate Aman Mehta will be the main lawyer for the people who support the reference, while Misha Rohatgi will be the main lawyer for the people who are against it. The bench stressed how important it was to stick to the schedule by saying in its order, “The time fixed shall be scrupulously followed and parties shall complete their arguments within the stipulated time.”
Understanding the Presidential Reference and How It Came to Be
This important hearing is the result of a one-of-a-kind presidential reference under Article 143 of the Constitution. President Droupadi Murmu sent 14 constitutional questions to the Supreme Court. All of these questions came from the court’s own ruling on April 8 of this year. The two-judge panel of Justices JB Pardiwala and R Mahadevan made that earlier decision, which was the first time constitutional bodies had to follow enforceable deadlines for acting on state bills.
The April 8 decision said that governors must act “forthwith” or within one month on re-passed measures and must decide within three months whether to sign them or hold them for the president’s review. Most importantly, the court also said that “inordinate delays” might lead to “deemed assent,” using Article 142 to make sure the constitution works and stop the legislature from becoming paralyzed.
The first decision came from a petition filed by the Tamil Nadu government, which said that its governor had unfairly delayed approval of ten crucial state measures. After that, the court called the governor’s lack of action “illegal” and told him to do something by a certain date. This decision started a widespread debate over the separation of powers and how much jurisdiction the courts have to review the actions of high-ranking constitutional officials.
On July 22, the Supreme Court sent notifications to the Union and all state governments, saying that the constitutional issues at stake went well beyond Tamil Nadu and affected the whole country. “We are going to decide for everyone, not just Tamil Nadu,” the bench said at the time, setting the hearing dates for Tuesday to finish up.
KK Venugopal and Abhishek Manu Singhvi repeated their significant concerns to the reference’s maintainability during Tuesday’s hearing. Kerala has accused the Union government of misleading the court in an effort to overturn the April 8 ruling, while Tamil Nadu has already filed a request to have the reference thrown out completely.
However, Solicitor General Tushar Mehta asked the court to look at both the merits of the case and whether it could be heard, saying, “In the past, all issues have been decided together.” The panel did, however, agree to give Venugopal and Singhvi an hour on August 19 to make their case for why the reference should be kept.
Important Constitutional Issues at Stake
The presidential reference has brought up a number of important constitutional questions that the five-judge bench will now discuss. Some of these are:
If a “deemed assent” clause, as required by the April 8 verdict, is allowed by the Constitution.
If the Supreme Court can tell the President or governors what to do in terms of procedures.
Is it possible to use Article 142 to get around clear constitutional rules?
Are there deadlines or judicial review that limit the President’s power under Article 201?
Article 145(3) says that at least five judges must hear important legal problems, therefore the April 8 decision should have been made by a larger bench.
If decisions made by governors and the President under Articles 200 and 201 can be reviewed by a court before the statute goes into force.
Article 142 lets courts tell the President or governor what to do or change their mind.
Whether Article 361’s constitutional immunity stops this kind of judicial review completely.
Should Article 131 of the Constitution (which deals with conflicts between states and the Union) be the exclusive way to settle these kinds of problems, or can the Supreme Court do so through writ jurisdiction or other means?
Does the governor have to follow the advice and help of the state’s council of ministers when making decisions under Article 200?
An insider said, “This concern (about Article 145(3)) is being taken very seriously, and the registry’s review of precedent is very important to figure out how to move forward procedurally.”
Since India became independent, the President has used Article 143 at least 14 times to ask the Supreme Court for advice on difficult legal and public issues. Even though the President doesn’t have to follow the court’s ruling in these cases, they have historically been very important in influencing how the Constitution and the law are understood in India.