New Delhi: The Constitution Bench of the Supreme Court on Tuesday clarified that its role in the ongoing Presidential Reference regarding timelines for Governors and the President to act on Bills is strictly advisory and not appellate. The clarification came amid strong objections from states including Kerala and Tamil Nadu, which questioned the maintainability of the reference.
Chief Justice of India B. R. Gavai, who is heading the Bench, emphasized that the Court was not sitting in appeal over the Tamil Nadu Governor case, where a two-judge bench had laid down timelines for gubernatorial and presidential action on Bills. “We will be expressing just a view of law, not on the decision in the Tamil Nadu case,” the CJI remarked. Justice Surya Kant added that under Article 143, the Court could opine that a particular judgment does not lay down correct law, but it cannot overrule it in this jurisdiction.
The five-judge bench also includes Justices Vikram Nath, P. S. Narasimha, and A. Chandurkar.
Senior Advocates K. K. Venugopal (for Kerala) and Dr. Abhishek Manu Singhvi (for Tamil Nadu) argued that the issues raised in the Presidential Reference had already been conclusively decided in the Tamil Nadu Governor case, and thus could not be re-examined under Article 143. Venugopal stressed that a judgment of any bench of the Supreme Court, regardless of its size, binds all under Article 141 of the Constitution.
Singhvi cautioned that using Article 143 to revisit the earlier ruling would effectively turn the advisory power into an intra-court appeal mechanism, which was never intended. He pointed out that in earlier references, such as Cauvery and 2G, the Court had only clarified points of law without disturbing the binding nature of past judgments.
Attorney General R. Venkataramani defended the maintainability of the reference, noting that he had earlier requested a larger bench to examine the issue during the Tamil Nadu Governor case, which was not considered. He argued that the President has the prerogative to seek guidance under Article 143, especially when conflicting judgments from benches of varying strengths create constitutional uncertainty.
Supporting him, Solicitor General Tushar Mehta maintained that the Court is not barred from revisiting earlier rulings in its advisory jurisdiction, describing past limitations as self-imposed and not jurisdictional. “For the first time, the President has felt functional disharmony due to conflicting judgments. This is a constitutional problem that needs authoritative resolution,” Mehta stated.
While Singhvi and Venugopal urged restraint, several other senior advocates including Harish Salve, Neeraj Kishan Kaul, and Maninder Singh supported the government’s position. They argued that the Court, while exercising its advisory function, could depart from earlier precedents in matters of public importance.
After considering the preliminary objections, the Bench began hearing the Attorney General’s arguments on the merits of the reference. The Court has indicated that it remains conscious of the limited contours of its jurisdiction under Article 143 but will proceed to provide clarity on constitutional questions raised by the President. The hearing is ongoing.
Source: LiveLaw