President Ought to Seek Supreme Court’s Opinion When Governor Reserves Bill on Ground of Unconstitutionality: SC

Another key takeaway from the supreme court’s judgement in the Tamil Nadu governor case is its observation that when a Governor reserves a Bill for the President’s assent on grounds of perceived unconstitutionality, the President ought to seek the Supreme Court’s opinion.

Article 143 of the Indian Constitution grants the President the power to seek advisory opinions from the Supreme Court on matters of public importance. This advisory jurisdiction allows the President to consult the Supreme Court on questions of law or fact.

The Supreme Court has ruled that when a Governor reserves a bill for the President’s assent on grounds of perceived unconstitutionality, the President should seek the Supreme Court’s opinion. This is according to Article 143 of the Indian Constitution, which grants the President the power to seek advisory opinions from the Supreme Court on matters of public importance.

“Constitutional Clarity: President’s Role in Bill Approval”

This exercise will prevent a patently unconstitutional bill from becoming a law and thus save public resources, the Court opined. The President’s recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government’s approach to bills reserved under Article 200. The Court said that in such situations, 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.

Since the constitutionality of a bill is a matter which falls within the exclusive domain of the courts, the opinion rendered by the Supreme Court under Article 143 holds high persuasive value and should ordinarily be accepted by the legislature and the executive.

The President can deviate from the Court’s opinion only if there are policy considerations other than legal questions involved. Even then, the President must assign cogent reasons for rejecting the Court’s view.

“Checks and Balances: SC’s Crucial Ruling on Bill Assent”

In a significant ruling, the Supreme Court on Tuesday slammed Tamil Nadu Governor RN Ravi for withholding action on state bills and declared his move to refer 10 re-adopted bills to the President as ‘illegal and erroneous.’ 

A bench comprising Justices JB Pardiwala and R Mahadevan said the Governor had no authority to reserve bills for the President’s assent if those bills were passed again by the state Assembly without any substantial change. “The reservation of 10 bills by the Governor for the President’s assent was illegal and, therefore, liable to be set aside,” the court held. 

The Supreme Court clarified that the Governor is constitutionally bound to act on the advice of the Chief Minister and the council of ministers under Article 200 of the Constitution. “There is no discretion left with the Governor in such matters,” the bench noted. 

The bench also ruled that the 10 bills returned earlier and re-adopted in a special Assembly session are now deemed to have received the Governor’s assent from the date they were re-submitted to him. “The Governor did not act bona fide,” the court said in its judgment. 

In its detailed observations, the court said a re-adopted bill can only be reserved for the President if it is significantly different from its earlier version. It also rejected any interpretation that allows the Governor to withhold assent without informing the state government. 

During the hearings, Justice Pardiwala questioned the delay by the Governor, asking

 “If the Governor is prima facie of the view that the bill suffers from repugnancy, should it not be brought to the notice of the state government? How is the government expected to know what is in the mind of the Governor?” He further added, “If repugnancy is something that troubled the Governor, the Governor should have immediately brought it to the notice of the government, and the Assembly could have reconsidered the bills.” 

The Tamil Nadu government had filed a writ petition accusing the Governor of acting like a ‘political rival’ to the elected government. The state alleged that the Governor had returned 10 of the 12 bills pending with him only after the Supreme Court issued notice on the plea. 

After this, the Tamil Nadu Assembly held a special session and passed the bills once again, only for the Governor to refer several of them to the President, prompting judicial scrutiny. 

The top court had also questioned the Governor’s inaction since 2020. “These bills have been pending since January 2020. It means that the Governor took the decision after the court issued the notice. What was he doing for three years? Why should the Governor wait for the parties to approach the Supreme Court?” the court asked.