15-05-2025
After President Murmu seeks advisory opinion from SC, can court overturn its R N Ravi decision?
President Draupadi Murmu has on Tuesday invoked the Supreme Court's advisory jurisdiction on whether timelines could be set for the President and Governors to act on Bills sent by state Assemblies.
As per Article 143(1) of the Constitution, the President may refer a 'question of law or fact' to the Supreme Court for its opinion. The SC's opinion, unlike a ruling, is not binding in nature.
Significantly, President Murmu made the reference just five weeks after the SC's controversial April 8 ruling in which it fixed a three-month deadline for the President to clear Bills reserved for his/her consideration by the Governor. The ruling by a two-judge Bench headed by Justice J B Pardiwala also set aside Tamil Nadu Governor R N Ravi's decision to withhold assent to 10 pending Bills.
The Government of India Act of 1935 had similar provisions to seek the opinion of the Federal Court but only on questions of law. The Constitution extended this to both questions of law and fact, including certain hypotheticals.
A question under Article 143 may be referred if it 'has arisen, or is likely to arise,' and 'which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court.'
The SC returns the reference to the President with the majority opinion. Article 145(3) requires five judges to hear any such reference.
The Constitution prescribes that the President act on the aid and advice of the Union Cabinet. The advisory jurisdiction is a sparsely invoked power to ensure that the President has means to seek independent advice to act on certain constitutional matters.
Article 143 states the Court 'may, after such hearing as it thinks fit, report to the President its opinion thereon.' The use of the word 'may' indicates that it is the Court's prerogative to answer — or not to answer — the reference.
However, the SC almost always answers the reference. In at least 14 Presidential references made since 1950, the apex court has returned only one without answering, and that too for technical reasons.
The SC did not answer Special Reference No 1 of 1982 which was made by then President Giani Zail Singh on whether the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Bill, 1980, or any of its provisions, would be constitutionally invalid, if enacted. The law sought to regulate the resettlement or permanent return of individuals (or their descendants) who had migrated to Pakistan between March 1, 1947 and May 14, 1954.
However, after the President's reference, the Bill was passed for a second time and the Governor gave his assent. Petitions challenging the validity of the laws were also moved before the SC.
'Having regard to the fact that the Bill became an Act as far back as in 1982, it appears to us inexpedient to answer the question posed to us in the Reference. Even if we were to answer the question in the affirmative, we would be unable to strike down the Act in this proceeding. We think, therefore, that the Reference must be, respectfully, returned unanswered,' it said in 2001.
Since advisory jurisdiction is not binding as a precedent, even if the SC held the law to be unconstitutional in the Article 143 reference, it would still have to separately decide the validity of the law. The SC's opinion to the President would also be futile since the issue was not before the President anymore.
The SC in its 1991 opinion involving the Cauvery Water Disputes Tribunal, has said Article 143 is not a mechanism for the executive to seek review or reversal of established judicial decisions of the Supreme Court.
'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 or the same is res integra so as to require the President to know what the true position of law on the question is,' the opinion had said.
The SC had also said that it cannot 'countenance a situation' where a question in a reference 'may be so construed as to invite our opinion' on a settled decision of the SC.
'That would obviously be tantamount to our sitting in appeal on the said decision which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said decision through a Reference under Article 143 of the Constitution,' the Court had said.
The government can still file a review of the SC's April 8 ruling, and even move a curative petition to reverse it. Since the judgment is by a two-judge Bench and similar cases from other states, including Kerala and Punjab, are pending, it is possible that another Bench may refer it to a larger constitutional bench.
However, the present reference contains 14 questions of law, which are mostly drawn from the April 8 ruling but are not limited to it. The last three questions raise larger issues on how the SC exercises its discretionary powers provided by the Constitution.
In Question 12, the reference asks whether the SC must first determine if a case involves a 'substantive question of law' or requires 'interpretation of the Constitution' that only a larger Bench can hear. This is essentially questioning whether smaller benches can hear such important issues.
In Question 13, the reference raises questions on the use of Article 142 of the Constitution, which is the discretionary 'power to do complete justice.'
The last question also asks the SC to define the contours of Centre-state disputes that can be heard by any court. Article 131 of the Constitution states that 'subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute.'
Why has the reference been made?
Issues in the R N Ravi case essentially involved the interplay between the Centre and opposition ruled states. Governors who are appointed by the Centre were seen to be undercutting elected state governments by simply not clearing Bills passed in the Assembly.
While the SC addressed this issue, it extended its scrutiny to the role of the President's powers as well, setting a three-month timeline to clear Bills reserved for his/her consideration by the Governor. The SC's reason for involving the President was because Governor Ravi, under fire from the SC for withholding assent, had referred 10 Bills to the President. This was seen by the SC as an artful tactic to stall bills by involving the President.
The SC in its ruling allowed states the right to seek a 'writ of mandamus' from the SC against the President. This is essentially a right to knock on the Courts seeking a directive against the President if she does not decide on bills within the prescribed time limit.
The ruling came under criticism from the government with Vice President Jagdeep Dhankar raising the issue in Rajya Sabha. Attorney General for India R Venkataramani too criticised the ruling as the President 'was not heard' before the SC passed directives for her office to follow.
The ruling also gave fresh impetus for the government to attack the judiciary on the grounds that it was undermining Parliament or the people's mandate. Dhankar has raised the issue of 'Parliamentary supremacy' several times in the past, and called for limited judicial review and greater adherence to the separation of powers.
However, these fissures between the Parliament and the judiciary are as old as the Constitution itself. In the first three decades since independence, the courts and successive governments sparred on interpretation of the right to property, leading to constitutional amendments and their striking down.
Eventually, in the landmark 1973 Kesavananda Bharati ruling, the SC allowed land reforms, watering down the fundamental right to property but severely restricted the Parliament's powers to tinker with any other fundamental right.
Apurva Vishwanath is the National Legal Editor of The Indian Express in New Delhi. She graduated with a B.A., LL. B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. She joined the newspaper in 2019 and in her current role, oversees the newspapers coverage of legal issues. She also closely tracks judicial appointments. Prior to her role at the Indian Express, she has worked with ThePrint and Mint. ... Read More
