Presidential reference has echoes of a review petition

Hindustan Times

16-05-2025

Many issues arise from the presidential reference listing 14 questions that was made to the Supreme Court this week, in the aftermath of the apex court's judgment in the case involving the pendency of gubernatorial assent for a clutch of Bills passed by the Tamil Nadu assembly. As is often said, the Supreme Court is also a political power centre. The drastic effects of the judgment by the Pardiwala-Mahadevan Bench that evolved the idea of deemed assent for 10 Tamil Nadu Bills that were pending with the governor are quite visible. Within hours of the judgment, Tamil Nadu notified all the laws that had been detained by the constitutional procedure of gubernatorial assent for quite a long time. Deadlines were set by the court for gubernatorial and presidential (upon referral of a Bill to the President by the governor) assent. It was the outcome of an apparent activist posture by the Supreme Court.
An elementary issue that arises from the presidential reference in this instance is whether matters that are already adjudicated by the Supreme Court can be posed again before the Court by way of presidential reference. A perusal of the questions in the reference will show that a substantial number of them are answered in the Tamil Nadu Governor judgment or in the earlier decisions of the Supreme Court.
For instance, the question of whether the governor is bound by the aid and advice tendered by the Council of Ministers has been answered by a Constitution Bench -- in the affirmative -- in Shamsher Singh (1974). The exceptions to this general rule as provided in the Constitution were highlighted in the Tamil Nadu verdict and also in some previous pronouncements like Nabam Rebia (2016). In Madhya Pradesh Special Police Establishment (2004), the Court held that the governor has discretion in deciding on the question of sanctioning the prosecution of ministers in a Cabinet as it involves a constitutionally permitted exception.
The justiciability of the discretion exercised by the governor also has been discussed in the recent Tamil Nadu Governor judgment, based on earlier judgments such as Rameshwar Prasad (2006). The fixing of a time-limit for gubernatorial and presidential decisions has been done in the Tamil Nadu judgment by exercising the Court's adjudicatory jurisdiction, based on certain recommendations by government-appointed bodies such as the Sarkaria Commission (1988). For this, the practice in other jurisdictions such as the US was relied on. The Court also referred to the earlier verdicts in Perarivalan (2023) and Keisham Meghachandra Singh (2020). Another issue is whether there can be a substitution of the power of the President or governor by a judicial order. The fact is the Tamil Nadu Governor judgment did not say so but only evolved the idea of deemed assent, given the facts of that particular case. That it was done by invoking Article 142 of the Constitution implies that it is not a precedent laying down the law for the future; rather it is a direction issued to do complete justice to the parties in a given situation. Many other questions, such as whether there could be a law without presidential assent, arise from the same erroneous assumption about the content of the Tamil Nadu judgment. The reference essentially seeks a review of the judgment: It is a review petition in the guise of reference.
The principle that the Supreme Court cannot be asked to re-decide matters already decided at the adjudicative level was laid down by the apex court in the matter of Cauvery Water Disputes Tribunal (1991). In that case, lawyer Fali S. Nariman argued that the President can refer any question under Article 143, and, therefore, ask the Supreme Court to reconsider any of its decisions. This contention was rejected by the Court. The Court deconstructed Article 143 to say that once a question is adjudicated by the Court, it is no longer 'a question of law or fact which has arisen, or is likely to arise', as stated in the text of the Article. The Court held: 'When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law' warranting a reference.
The advisory jurisdiction under Article 143 if of British origin. Commonwealth countries like Canada and India followed the practice of constitutional court advising the executive on substantial legal issues. The US, on the other hand, rejected this practice, fearing it could meddle with the idea of separation of powers and independence of judiciary. In the Indian context also, what follows a reference is only an opinion by the Court, either answering or refusing to answer a reference. It is not a judgment or decree that binds the government or even the other courts in the country. Given the nature of the jurisdiction, the general principles of law laid down in Tamil Nadu Governor case are unshakable. About a dozen prominent presidential references since the formation of the Indian republic will show that a reference is not supposed to upset or torpedo the law already laid down by the Court.
There are questions in the reference that are not pointedly answered in the Tamil Nadu Governor case. The question on the need to place a case before a Constitution Bench with five or more judges under Article 145(3), if it involved 'substantial questions of law regarding interpretation of the Constitution' is curious. This has been answered in the affirmative, right in the text of Article 145(3) and therefore, no reference is even called for. Regarding the Tamil Nadu Governor case, neither the parties nor the Court had ever suggested that apart from procedural law, there are issues demanding an interpretation of the Constitution. Even otherwise, whether a given case falls under the ambit of Article 145(3) can only be decided on a case-to-case basis and no general principle can be laid down.
When Kerala sought to withdraw its petition seeking an early decision by the Governor on its Bills on the ground that the Tamil Nadu Governor judgment covers the issues, the Centre, quite strangely, opposed it and the case was adjourned. The present reference order that was issued subsequently might be used by the Centre against Kerala's plea. Ideally and legally, a party is entitled to get the benefit of the law as interpreted by the Supreme Court or at least to withdraw petitions based on what has been held in the case.
Kaleeswaram Raj is a lawyer at the Supreme Court of India. The views expressed are personal