Can Presidential Reference Change a Judgment?

General Studies Paper-2

Context

• The Supreme Court has issued notices to the Union Government and all States on Presidential reference on the President and Governor’s powers.
  • The SC seeks opinion on whether the President and Governors can be judicially compelled to act within prescribed timelines on Bills passed by State legislatures.

Background

• Recently, the Supreme Court verdict laid down a timeline for the President and governors to decide on state bills.
• Generally, the Governor is not bound by any time limit to act on a Bill.
  • This creates a situation where the Governor can simply not act on a Bill indefinitely this is referred to as a “Pocket Veto”, although the term is not officially used in the Constitution.
• The Supreme Court ruled that Governors cannot delay or withhold assent to Bills indefinitely once they are passed or re-passed by the state Assembly.
• The ruling set a timeline for the Governor to act on Bills:
  • One month for re-passed Bills.
  • Three months if the Bill is withheld contrary to Cabinet advice.
• It raises questions about the scope of judicial authority under Article 142, and whether the courts can enforce accountability on constitutional functionaries like Governors and the President.
• President Droupadi Murmu sought the Supreme Court’s advisory opinion under Article 143 on whether the President and governors need to follow timelines to decide on state bills.

Article 143 Presidential Reference

• Article 143(1): The President can refer any question of law or fact that is of public importance to the Supreme Court for its advisory opinion.
  • The Court may choose to answer or decline, however, if the court chooses not to respond, it must record its reasons.
  • The opinion is not binding, but is highly respected: In Cauvery Water Disputes Tribunal (1991), the court reiterated that advisory opinions are entitled to “due weight and respect” and are “normally followed.” However, it refrained from settling the question of their binding nature, observing that the issue could be revisited at a more appropriate time.
  • The court is bound to limit itself strictly to the questions referred by the President and cannot exceed the scope of the Reference.
• The Constitution extended the provision in the Government of India Act, 1935 to seek the opinion of the Federal Court on questions of law to questions of fact as well, including certain hypotheticals.
  • Article 145(3) requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion.
  • Need for the Article: Under the Constitution, the President acts on the aid and advice of the Cabinet.
  • The advisory jurisdiction allows the President the means to seek independent advice to act on certain constitutional matters.
• It is a power that the President has invoked on at least 15 occasions since 1950.

Can the court overturn its April 8 ruling through the Reference?

• In the Cauvery Water Disputes Tribunal Reference, the Supreme Court held that:
  • Article 143 cannot be used by the executive to seek a review or reversal of settled judicial decisions.
  • The Court warned against framing questions that indirectly reopen previously decided cases.
• In Natural Resources Allocation (2012), the SC clarified:
  • There is no constitutional bar on the Court refining or restating a legal opinion under Article 143(1).
  • This is permissible as long as the core reasoning and rights of parties in the original case remain unaffected.
  • Therefore, the April 8 judgment is final and binding. However, its legal findings may still be refined or elaborated upon by the Constitution Bench.
• The current Reference includes 14 questions of law, which are largely related to the April 8 ruling but are not limited to it.
• It raises broader issues on the scope and use of the Supreme Court’s discretionary powers under the Constitution.