Advisory opinions can't overrule in Presidential assent reference: Supreme Court

India Today

12 hours ago

The Supreme Court, hearing a Presidential Reference on the powers of the President and Governors in granting assent to Bills, clarified on Tuesday that advisory opinions issued under Article 143 cannot overrule existing judgments.A Constitution Bench,includingJustices Surya Kant, Vikram Nath, PS Narasimha, AS Chandurkar, and led by the Chief Justice of India (CJI) B R Gavai highlighted the limitations of the court's advisory jurisdiction on Day 1 of the hearings.advertisementADVISORY OPINIONS NOT PRECEDENTS: COURTThe CJI emphasised that the court is not assessing the correctness of any specific verdict, including the Tamil Nadu judgment, but is only offering its view on questions of law.
Justice Kant stated, 'One thing is clear. We are in advisory jurisdiction, not appellate jurisdiction. We will answer if there is a question of law arisen and answer it.'Justice Narsimha added, 'This is only an opinion. When you refer an opinion of court and ask to take a different decision, the idea always is this cannot be a precedent.'The bench categorically held: 'You cannot ask this court to decide on conflicting judgments in a reference. For that there are larger benches. In advisory jurisdiction, the court may opine that a judgment does not lay down the correct law, but it cannot overrule.'Referring to the Tamil Nadu judgment, Justice Narsimha remarked that the case involved an egregious circumstance and did not set a legislative precedent. The bench also questioned what constitutional recourse existed in instances where a Governor fails to act in deference to constitutional norms.FRAMERS INTENDED NO TIMELINE FOR ASSENT: SOLICITOR GENERALSolicitor General Tushar Mehta, appearing for the Union of India, submitted that the Constitution was designed to preserve federal balance, even though 'there may be instances of errant Governors.'He pointed out that the Government of India Act, 1915 included timelines for assent, but these were consciously removed by the Constituent Assembly.'The Governor-General then was equivalent to the President now. That provision carried a timeline. But that timeline was consciously removed by the Constituent Assembly,' he said, adding that Dr B R Ambedkar replaced 'six weeks' with 'as soon as possible' in what became Article 111.Mehta argued that the removal of a fixed timeline reflected the framers' confidence that constitutional functionaries would act in 'right earnest.'He further noted the constitutional importance of the issue, stating, 'There have only been 15 Presidential References so far. The highest head of the executive is now seeking your Lordships' guidance because there are different benches, different opinions, and constitutional problems.'JUDICIARY CANNOT REWRITE THE CONSTITUTION: ATTORNEY GENERALadvertisementAttorney General R Venkataramani cautioned the court against entering the legislative domain. Responding to a question from the CJI, he said, 'It is a matter of textual amendment to the Constitution. Can the court go to the extent of taking pen and paper to rewrite the Constitution?'On the use of Article 142, he argued that the court's powers under it cannot be used to grant assent or issue directions that conflict with constitutional or statutory provisions. He emphasised that Article 142 is meant for doing 'complete justice' in matters properly before the court, and does not authorise the court to step into the legislative role.On Question 1 of the reference, the AG submitted that Article 200 offers the Governor four distinct courses of action: assent, withhold assent, reserve the Bill for the President, or return it. He said this view was supported by States like Kerala, Himachal Pradesh, and Meghalaya and was in contrast to the Tamil Nadu judgment, which recognised only three options.He further contended that the Governor is not bound entirely by the aid and advice of the Council of Ministers under Article 200. The discretion, he said, extends beyond repugnancy under Article 254(2) or issues affecting High Court powers, and may apply where constitutional doubt exists.advertisementOn Question 2, the AG pointed out that withholding assent would rarely be recommended by the Council of Ministers, as the Bill would have originated with their support. Thus, such a decision necessarily involves the Governor's independent judgment.On Questions 10 and 13, he reiterated that Article 142 powers are subject to constitutional and statutory limits and cannot be used to grant relief that contradicts existing law.The matter remains ongoing.- Ends