File photo: President Droupadi Murmu
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PTI
President Droupadi Murmu has sent a Presidential Reference to the Supreme Court for its opinion on whether the court can employ its inherent powers under Article 142 to “impose” timelines and prescribe the manner of conduct of Governors and the President while dealing with State Bills sent to them for assent or reserved for consideration.
The Reference, issued under Article 143 of the Constitution to the Supreme Court, has sought clarity on the Constitutional options before a Governor when a Bill is presented to him under Article 200.
Broadly, the Presidential Reference has asked if judicial orders can dictate by what time and how the President and Governors should function under Articles 200 and 201 (when Bills are reserved by Governors for Presidential assent).
The President’s Reference said there were “conflicting judgments” of the Supreme Court as to whether the assent of the President under Article 201 was justiciable or not. The Reference has also sought the court’s opinion on the contours and scope of Article 142 of the Constitution.
The Reference is dated May 13, the last working day of Justice Sanjiv Khanna as Chief Justice of India. The responsibility would now fall on incumbent Chief Justice BR Gavai to form a Constitution Bench to consider and answer the Presidential Reference.
The President’s move to seek clarity arises from an April 8 judgment of a Supreme Court Bench of Justices JB Pardiwala and R. Mahadevan in a petition filed by the Tamil Nadu government challenging the Governor’s delay in clearing 10 re-passed Bills and his subsequent action to reserve them for consideration by the President. The judgment had declared his action as unconstitutional and invoked Article 142 to set timelines for the President and Governors to act on State Bills.
Pointing to this judgment, the Presidential Reference said the “concept of deemed assent” of the President and the Governor was alien to the Constitutional scheme and fundamentally circumscribed the power of the President and the Governor. The apex court judgment in the Tamil Nadu Governor’s case had held that assent to Bills would be deemed if no action was taken on them by the President or Governor within the prescribed timeline of three months.
The Presidential Reference highlighted that States were resorting to approach the apex court under Article 32, and not Article 131, to raise issues “which by their very nature are federal issues involving interpretation of the Constitution”.
President Murmu has listed a series of 14 questions for the Supreme Court to consider and give an opinion under Article 143.
They are:
What are the Constitutional options before a Governor when a Bill is presented to him under Article 200 for assent?
Is the Governor bound by the aid and advice tendered by the Council of Ministers?
Is the exercise of Constitutional discretion by the Governor under Article 200 justiciable?
Is Article 361 of the Constitution (immunity given to President and Governors from legal action while in office) an absolute bar to judicial review in relation to the actions of a Governor under Article 200?
In the absence of any Constitutionally prescribed time limit or manner of exercise of powers by a Governor, can time limits be imposed and manner of exercise of powers be prescribed through judicial orders?
Is the exercise of Constitutional discretion by the President under Article 201 (dealing with Bills reserved by a Governor for consideration by the President) justiciable?
Can judicial orders impose timelines and manner of exercise of powers by the President under Article 201?
Is the President required to take advice from the Supreme Court when a Bill is reserved by a Governor for the President’s assent?
Are decisions of the Governor and the President under Articles 200 and 201, respectively, justiciable at a stage prior to even the Bill in question becoming a law. Is it permissible for the courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?
Can the Constitutional powers of the President/Governors be substituted by a judicial order exercising Article 142?
Is a law made by the State Legislature a law in force without the assent of the Governor?
Is it not mandatory for a Supreme Court Bench to examine if a case involved substantial questions of law regarding interpretation of the Constitution and refer the case to a Bench of a minimum five judges under Article 145(3)?
Is Article 142 limited to matters of procedural law or does it extend to issuing directions “contrary to or inconsistent with existing substantive or procedural provisions of the Constitution”?
Is there a bar on the Supreme Court from deciding between the Centre and States other than by way of filing an original suit under Article 131?
Published on May 15, 2025