NEW DELHI: Can Supreme Court force the President to approach SC under Article 143 of the Constitution seeking its opinion on constitutionality of a bill ? This is one of the key questions that has emerged on a closer study of the SC's recent judgment on the President's powers regarding bills passed by state legislatures.
Article 201 of the Constitution does not prescribe a time limit or warrant the President to provide a reason for withholding assent to a bill reserved for her by governors. But a bench of Justices J B Pardiwala and R Mahadevan asked the President to do what is not mandated by the Constitution - to specify elaborate reasons for withholding assent to a bill or returning it to the state legislature.
SC also appeared to have stepped into the legislative process, that includes assent of the President, when it said, "We are also of the view that a bill appearing to be unconstitutional must be assessed by a judicial mind. The President is not just precluded but constitutionally expected to refer the question of vires of a bill to this court as the apex judicial institution to ascertain the constitutionality thereof and accordingly enable President to act in respect of the said bill under Article 201." This has raised eyebrows as there is no concept of 'advance ruling' in constitutional litigation, as is available under the GST and income tax laws. "We are of the considered view that constitutional courts are not precluded from making suggestions or giving opinion about constitutional validity of a bill before the same becomes a law," the court said, inserting itself into a process that is hardly its domain.
Teaching prudence to the President, SC said she ought to "seek an opinion under the said provision in respect of bills that have been reserved for consideration of the President on grounds of perceived unconstitutionality...President's recourse to Art 143 also palliates any apprehensions of bias or mala fides in the central govt's approach to bills reserved under Article 200".
Article 143 makes no mention of bills or the question of constitutionality. It provides: "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of SC upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the President its opinion thereon." SC judgment said "where the bill upon becoming law would be a peril to democracy, the decision of the President must be guided by the fact that it is the constitutional courts that have been conferred with the ultimate authority of interpretation of the Constitution and the laws", its remarks seemingly reflecting the assumption that the Union, its law ministry and top law officers lacked understanding of the intricacies of the Constitution and were incompetent to tender proper advice in a matter involving intricate play of constitutional provisions.
"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 a 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 bench said, knowing full well that the SC's opinion under Article 143 is not binding on the govt.
There are 28 states and if five bills passed every year by each state legislature are reserved for the President by the governor on grounds of its constitutionality, then going by the court's reasoning, President ought to seek the opinion of SC on all 140 bills, a law ministry source said.
For the record, the President had sought SC's opinion in 2004 on the Punjab Termination of Agreements Act which annulled water sharing agreements with neighbouring states. SC gave its opinion 12 years later in 2016.
Article 201 of the Constitution does not prescribe a time limit or warrant the President to provide a reason for withholding assent to a bill reserved for her by governors. But a bench of Justices J B Pardiwala and R Mahadevan asked the President to do what is not mandated by the Constitution - to specify elaborate reasons for withholding assent to a bill or returning it to the state legislature.
SC also appeared to have stepped into the legislative process, that includes assent of the President, when it said, "We are also of the view that a bill appearing to be unconstitutional must be assessed by a judicial mind. The President is not just precluded but constitutionally expected to refer the question of vires of a bill to this court as the apex judicial institution to ascertain the constitutionality thereof and accordingly enable President to act in respect of the said bill under Article 201." This has raised eyebrows as there is no concept of 'advance ruling' in constitutional litigation, as is available under the GST and income tax laws. "We are of the considered view that constitutional courts are not precluded from making suggestions or giving opinion about constitutional validity of a bill before the same becomes a law," the court said, inserting itself into a process that is hardly its domain.
Teaching prudence to the President, SC said she ought to "seek an opinion under the said provision in respect of bills that have been reserved for consideration of the President on grounds of perceived unconstitutionality...President's recourse to Art 143 also palliates any apprehensions of bias or mala fides in the central govt's approach to bills reserved under Article 200".
Article 143 makes no mention of bills or the question of constitutionality. It provides: "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of SC upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the President its opinion thereon." SC judgment said "where the bill upon becoming law would be a peril to democracy, the decision of the President must be guided by the fact that it is the constitutional courts that have been conferred with the ultimate authority of interpretation of the Constitution and the laws", its remarks seemingly reflecting the assumption that the Union, its law ministry and top law officers lacked understanding of the intricacies of the Constitution and were incompetent to tender proper advice in a matter involving intricate play of constitutional provisions.
"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 a 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 bench said, knowing full well that the SC's opinion under Article 143 is not binding on the govt.
There are 28 states and if five bills passed every year by each state legislature are reserved for the President by the governor on grounds of its constitutionality, then going by the court's reasoning, President ought to seek the opinion of SC on all 140 bills, a law ministry source said.
For the record, the President had sought SC's opinion in 2004 on the Punjab Termination of Agreements Act which annulled water sharing agreements with neighbouring states. SC gave its opinion 12 years later in 2016.
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