"Can Timelines Be Imposed?" President's Big Question To Supreme Court

A month after the Supreme Court's landmark verdict in the Tamil Nadu case, which effectively set a deadline for the President and Governors to clear Bills passed by the legislature, President Droupadi Murmu has written to the top court and asked if timelines could be imposed on Governors.

President Murmu has sought the Supreme Court's opinion under Article 143 of the Constitution, which gives the President the power to consult the court on legal issues or matters of public importance.

"Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?" the President asked the Supreme Court.

President Murmu asked if a Governor's exercise of constitutional discretion is justiciable -- subject to a trial in court. She cited Article 361 of the Constitution, which says the President or the Governor shall not be answerable to any court for the exercise of the powers and duties of office.

"In the absence of a constitutionally-prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?" President Murmu asked the Supreme Court, seeking its opinion on the matter.

In April, a bench of Justice JB Pardiwala and Justice R Mahadevan had used the court's special powers to resolve a face-off over stalled Bills between the DMK government in Tamil and Governor RN Ravi. The court said the Governor's refusal to approve 10 Bills was "illegal and arbitrary" and set a three-month deadline for the President and Governors to clear Bills passed by the legislature for a second time.

The judgment also said the President must consult the courts on constitutional matters.

The bench said that if the matter pertains to policies, the Supreme Court can refuse to express its advisory opinion. "The exercise of a self-imposed restraint by the court in matters involving purely political considerations is in consonance with the doctrine of political thicket, that is, the courts do not venture into areas of governance in which the Constitution gives a prerogative solely to the executive."

"However, in certain exceptional circumstances, the Governor may reserve a bill for consideration of the President on the grounds that the bill is perilous to the principles of democracy and an interpretation of the Constitution is necessary to ascertain whether such legislation should be granted assent or not. In such cases where a bill has been reserved majorly on the grounds of not being in consonance with the constitutional principles and involves questions of constitutional validity, the executive is supposed to exercise restraint," it said.

"It is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143. We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill," the judgment said.

The order underlined that the court is aware of the "non-binding nature" of its advisory jurisdiction. "However, merely because the jurisdiction under Article 143 is not binding does not undermine the principles used by this Court to determine the constitutionality of the bill," it said.

The order noted that the "only reason" for which the legislative or the executive wing may not take note of the Supreme Court's opinion "is when the grounds on which a State bill was reserved for the consideration of the President, are not purely legal but also involve certain policy considerations, which may outweigh the issue of constitutionality". "In such cases, if the President acts contrary to the advice of this Court and withholds assent to a bill, he must record cogent reasons and materials that justify not granting assent," the order said.

It is now the Supreme Court's prerogative whether it sets up a Constitution bench to look into the issue raised by the President or reiterates its earlier two-judge bench's judgment. This comes at a time when the top court has got a new head in Chief Justice of India BR Gavai, who took the oath yesterday.