Presidential Reference-Much Ado About Nothing

The present reference is one under Art 143(1). The Supreme Court may refuse to give its opinion under clause (1) of Article 143. But ordinarily, the Court will not decline to give its opinion. The Court may in a proper case decline to answer a question if it is purely political in nature, or where it is incapable of being answered or where the question is speculative or vague. But under clause (2), the Court is bound to give its opinion. The opinion in any case would not be a judicial pronouncement. But the Court has laid down that the views expressed by it in exercise of its advisory jurisdiction are binding on all other courts in the territory of India. Curiously even if the President consults the Supreme Court for advice, the advice rendered is not binding on the President- the executive. Nor does the advisory opinion operate as res judicata since there are no parties before the Court.

Certain legal/constitutional positions are too well settled. Seeking opinion on such matters is virtually seeking to reopen the constitutional debate or rewrite the Constitution. This can have serious, unnecessary consequences and adversely impact the polity.

The Constitution has adopted the Cabinet form of representative democratic government tersely described as based on the 'Westminster model' where the King reigns but does not rule, the real power being vested in the Council of Ministers on whose aid and advice he is to act. “He can do nothing contrary to their advice nor can he do anything without their advice.” It is now well established that the position of the President (and the Governors) is akin to that of the constitutional monarch in Britain. It is settled and clear that they have to exercise their powers and discharge their functions on the basis of Ministerial advice by which they are generally bound except where it is otherwise prescribed constitutionally or in exceptional cases which by their very nature are not amenable to Ministerial advice. That is the basic major premise. Articles 74, 75, 77, 78 with regard to the Union and Articles 163, 164, 166, 167 concerning the States capture and embody the essence and nuances of the parliamentary system which the Constitution has adopted. These Articles are all pervasive and do not make any distinction between one function and another. That the President and Governors have to exercise their powers in accordance with ministerial advice holds good even in the matter of assent to Bills. Real power vests in the Council of Ministers headed by the Prime Minister/Chief Minister; the President/Governor is only the ceremonial Head of State. The Constituent Assembly Debates and the judgments underscore this position.

The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Article 163(2), for, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that the President/Governor has general discretionary power to act against ministerial advice. The area of discretion is clearly defined and confined. Art 200 is not in the domain of discretion.

Another fundamental concept underlying the Constitution is that what obtains is limited government. Powers are distributed among the different wings of the State and between the Centre and the States. The Constitution envisages not only a democracy of men but also of institutions. In that sense no institution, wing or office is supreme or conferred with absolute authority or unlimited power. All are creatures of the Constitution subject to constitutional limitations and should function as such. The President and the Governors too are expected to act in consonance with the spirit and ethos of the Constitution and constitutionalism.

It is clear from the constitutional position of the President/Governor that their powers have to be exercised in accordance with ministerial advice. The only powers which the Head of State can, as per settled constitutional law and conventions, exercise in his discretion are: appointment of the Prime Minister/Chief Minister; dismissal of the Government when it has lost its majority in the House but refuses to quit; dissolution of the Lower House of the Legislature; granting sanction to prosecute a Minister; and in the case of a Governor making a report under Art 356 regarding failure of the constitutional machinery in the State; apart from those expressly conferred by the Constitution like Arts 103/192. The function of granting assent is not one such to be exercised dehors the advice of the Ministers. Art 111 or 201 is not an exception, nor is Art 200. The Constituent Assembly Debates and the judgements make this position unambiguous. This has been explicitly laid down in Samsher Singh. The discretionary power of the Governor is defined by Art 163 itself. The power to assent is not one of the functions which the Governor is by or under the Constitution required to exercise in his discretion. Granting assent is not really a discretion. It is the constitutional duty and obligation of the Head of State. Unfortunately, a myth has been created and the duty has been converted into a perceived discretion. It is significant that unlike the corresponding provision – Sec 75 of the Government of India Act, 1935, the words 'in his discretion' have been omitted in Art 200. One of the situations where the Governor can act in his discretion is the second proviso to Art 200- reserving for the consideration of the President, a Bill, which in the opinion of the Governor would derogate from the powers of the High Court.

In the debate on Draft Article 175 which is Art 200, it was stated by Dr. Ambedkar that “the old proviso contained three important provisions. The first was that it conferred power on the Governor to return a Bill before assent to the Legislature and recommend certain specific points for consideration. The proviso as it stood left the matter of returning the Bill to the discretion of himself..... It was felt then that in a responsible Government there can be no room for Governor acting on discretion. Therefore, the new proviso deletes the words 'in his discretion'.” (14.6.1949 Vol IX CAD p 41)

Participating in the debate Sri T.T. Krishnamachari said, “I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The Governor is no longer vested with any discretion. If it happens that as per amendment no. 17, the Governor sends a Bill back for further consideration he does so expressly on the advice of his Council of Ministers. The provision has merely been made to be used if an occasion arises when the formalities envisaged in Art 172 (present Art 197) which has already been passed do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the Governor to hold up the further proceedings of the Bill and remit it to the Lower House with his message. If my Hon. Friend understands that the Governor cannot act on his own, he can act only on the advice of the Ministry then the whole picture will fall clearly in its proper place before him. It may happen that the whole procedure envisaged in Art 172 also goes through and then again something might have to be done in the manner laid down by the particular proviso but it is perhaps unlikely. It is a saving clause and vests power in the hands of the Ministry to remedy a hasty action or meet the popular opinion reflected outside the House, that it does not detract from the power of the lower House or confer any more power on the Governor.” (p 61 of Vol IX CAD). In principle the position would be the same with regard to other provisions of Art 200 as also those of Arts 201 and 111.

It has been stated by Sir Alladi that “Art 74 is all pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill..... The expression 'aid and advise' in Art 74 cannot be construed so as to enable the President to act independently or against the advice of the Cabinet.....” In Art 111 dealing with the power to remit a Bill for reconsideration, “the President is not intended to be a revisional or appellate authority over the Cabinet. A Bill might have been introduced either by a private member or a member of the Cabinet. It may be rushed through in the Parliament. The Cabinet might notice an obvious slip or error after it has passed the Houses. This power vested in the President is as much intended to be exercised on the advice of the Cabinet as any other power.”

All this has been referred to with approval by the Supreme Court in Samsher Singh v State of Punjab (1974) 2 SCC 831: We have no doubt that deSmith's statement regarding royal assent and it has been stated: We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations...... We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course-a highly improbable contingency- or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.” It has been expressly stated that the function under Art 200 belongs to the species of power where the Governor is bound to act on the aid and advice of the Council of Ministers. It has also been observed that if this were not the legal position, democracy itself would be in peril. For, the Governor not being answerable to anyone will become all powerful which is an antithesis to the concept of democracy.

This has been referred to and followed by a five judge Bench in Madhya Pradesh Special Police Establishment v State of Madhya Pradesh, (2004) 8 SCC 788. In a still later case in State of Gujarat v. R.A. Mehta, (2013) 3SCC 1 the Supreme Court following the earlier decisions reiterated the legal position that the Governor is bound to act on the aid and advice of the Council of Ministers unless he acts as a persona designata under a particular statute or acts in his own discretion under the exceptions carved out by the Constitution itself and that Art 200 does not belong to the exceptions.

Of course, when a Bill is returned, reconsidered and presented to the President (Art 111) or to the Governor (Art 200) he is bound to assent. Apart from the express language of the articles, that position stems from the principle underlying the conventional role and rights of the Head of State- to be consulted, to encourage, to warn, to seek information, to offer suggestions and advice and ultimately be bound by the formal advice tendered to him.

In the light of the foregoing discussion and the well settled constitutional position, questions 1 and 2 answer themselves. The constitutional options before a Governor when a Bill is presented to him under Art 200 are: The Governor shall declare that he assents or withholds his assent. In the case of non-Money Bills, the Governor may, as soon as possible after the Bill is presented to him, send the Bill back to the Legislature with a message for reconsideration. If the Bill is, on such reconsideration, again passed by the Legislature with or without amendment and presented to the Governor he has to declare his assent. Thus when a Bill is presented to the Governor for a second time he is bound to assent. Besides the three courses of action as stated above which the Governor may adopt under Art 200, he may reserve a Bill for the consideration of the President. But the Governor does all this only on the aid and advice of the Council of Ministers. In case a Bill derogates from the powers of the High Court, the Governor shall not assent but reserve it for the President's consideration. As stated in the CAD, if we bear in mind that the Governor cannot act on his own, he can act only on the advice of the Ministry, then the whole picture will fall clearly in its proper perspective. Thus the constitutional options available to a Governor when a Bill is presented to him under Art 200 and he is bound by the aid and advice of the Council of Ministers while exercising those options are crystal clear. There is no room for any doubt and the answers to the questions are obvious.

The third, fourth and sixth questions may be conveniently taken up together. The third question is whether the exercise of constitutional discretion by the Governor under Art 200 is justiciable; and the sixth is if the exercise of constitutional discretion by the President under Art 201 is justiciable. The fourth question is whether Art 361 is an absolute bar to judicial review in relation to actions of a Governor under Art 200.

First, as stated, there is no discretion under Art 200. Further, the concepts of limited government and judicial review constitute the essence of our constitutional system as Durga Das Basu points out and it involves three main elements: 1) a written constitution setting up and limiting the various organs of government; 2) the constitution functioning as a superior law or standard by which the conduct of all organs of the government is to be judged; 3) a sanction by means of which any violation of the superior law by any of the organs of the government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is “judicial review”. The judiciary is constituted as the guardian of the Constitution and the arbiter of the functions of all organs and the limits of their powers as grantees under the Constitution. To the judiciary is committed the function and responsibility of interpreting the Constitution. The purpose of public law is to discipline the exercise of power. Judicial review is the means of achieving that objective. Constitutionalism is limited government under a fundamental law. Judicial review is an incident of and flows from the concept of the Constitution being the fundamental higher law.

“Judicial review has developed to the point where it is possible to say that no power—whether statutory or under the prerogative—is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. Even when discretionary powers are engaged they are not immune from judicial review.” [DeSmith, Judicial Review] “No power is inherently unreviewable and in a constitutional democracy wedded to the rule of law, unfettered and unreviewable discretion is a contradiction in terms.” [Wade & Forsyth, Administrative Law] All this has been quoted with approval by the Supreme Court. [cf, inter alia, B.P.Singhal v Union of India, (2010) 6 SCC 331] This is the position even in England without a written constitution and Bill of Rights. The position is all the more reinforced in India. Judicial review is enshrined in our Constitution. The position is the same with regard to the President functioning under Art 201.

It is in the backdrop of such fundamental settled position that we must analyze the constitutional provisions and find answers to the questions, also noting and keeping in view the earlier judgments and development of the law.

The Supreme Court declared the law in Samsher Singh: We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional....” The only sequitur is that refusal of assent is justiciable. This is because refusal of assent would be unconstitutional means that such refusal can be judicially scrutinised and so declared by the court. In the light of this unequivocal enunciation of the constitutional position the President or the Governor cannot decline to assent to a legislation validly passed and if he does so, such action is justiciable and can be declared unconstitutional and he be compelled to grant assent.

Art 201- President's assent to State legislation is a slippery slope. The President has to act on the aid and advice of his Council of Ministers. No grounds are indicated in the Constitution upon which the President can refuse assent. There are also no guidelines regarding the consideration which the Union Government applies to examine a Bill reserved for the President's assent. Thus even in the matter of assent to a State Bill the President is to be guided and bound by the advice of the Union Government, but he is not expected to refuse assent to nullify laws passed by the representative State legislature. Two constitutional principles would then come into play and conflict. If the President, on the advice of the Union Government, refuses assent to a State legislation, his action will not be unconstitutional as he is bound by the advice of the Cabinet; but such action will be detrimental to the interests of federalism and the democratic principle. It will be, therefore, susceptible to scrutiny and correction in judicial review.

In countries with a written constitution and an entrenched, justiciable Bill of Rights and all the more in a federal polity, the doctrine of separation of powers with the judiciary constituted as the guardian and interpreter of the Constitution and the arbiter of the actions of all organs of the State is recognized as a necessary concomitant and is of vital significance. The principle of separation of powers is a constitutional fundamental. As the Supreme Court observed, a reign of law, in contrast to the tyranny of power, can be achieved only through separating appropriately the several powers of government. The doctrine is not a mere theoretical, philosophical concept; it is practical, work-a-day principle. It may be said that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or autocratic. There can be no legislative or executive determination of legal rights nor judicial legislation stricto sensu. The executive or the legislature cannot be the judge of the validity of its own actions. That is the domain of the judiciary. “It is emphatically the province and duty of the judicial department to say what the law is.” It is the Court that would have to determine whether an action is reasonable and valid: That necessarily includes decision/action under Arts 111, 200 and 201. And that means they are justiciable.

The answer to the third and the sixth questions is clearly in the affirmative.

The passing observation in some earlier judgements that assent is not justiciable is not really the ratio. The question did not directly arise and was not put in issue and decided in those cases. There is no discussion to reach such a conclusion and those casual observations are really obiter. A proper and closer reading of the judgments will indicate that the position is otherwise.

In Purushothaman Nambudiri v State of Kerala (AIR 1962 SC 694), the Court only observed that the Constitution does not impose any time limit within which the Governor should make any of the declarations (and similarly in the case of the President also) –para 16. The issue was whether a Bill lapses with the prorogation or dissolution of the House. All this was over 60 years ago.

In Hoechst Pharmaceuticals Ltd. v State of Bihar (AIR 1983 SC 1019: (1983) 4 SCC 45 again the contention was that the law was relatable to a subject in the State list and there was no necessity or occasion for the Governor to have referred the Bill to the President for his assent. It was held in that context that the assent of the President is not justiciable and 'no infirmity arising out of his decision to give such assent could be spelled out.' These last words contain the key to the decision and indicate that in the circumstances there was no infirmity in giving assent. It would thus be possible to examine if there is any infirmity and decide the matter which indeed is justiciability of assent.

In Bharat Seva Ashram Sangh v State of Gujarat (AIR 1987 SC 494): (1986) 4 SCC 51 there is only an incidental observation following and quoting Hoechst Pharmaceuticals Ltd. that assent is not justiciable. The question did not at all arise.

These decisions do not detract from the tenability and appropriateness of the earlier discussion. The judgement in Samsher Singh {in 1974 by a 7 Judge Bench} has not been noticed in Hoechst Pharmaceuticals {in 1983 by 3 Judges} or in Bharat Seva Ashram {in 1986 by 2 Judges} in which cases it has been casually observed that assent is not justiciable. In any event the later judgement in MP Special Police Establishment (2004) 8 SCC 788{by a 5 Judge Bench} should clinch the issue.

The answer to the fourth question also follows in the same way.

The constitutional position is settled that the President is only a ceremonial, titular head. He is a metaphor for the Union Council of Ministers. Further a variety of Presidential/Gubernatorial powers and functions have been the subject of judicial review over the years: Actions under Art 356-imposition of President's rule, proclamations under Art 356 have been held to be unconstitutional; Art 156-pleasure doctrine-removal of Governors, withdrawal of President's pleasure was held to be open to judicial review; Art 72 & 161- power of pardon, impugned orders have been held as unsustainable and set aside. These are some areas where the Court has scrutinised the actions of the President or the Governor and issued directions. Therefore, while there is immunity under Art 361, such immunity does not take away the power of judicial review by constitutional courts enabling examination of the validity of an action of the President/Governor. There is thus no bar to judicial review re: actions under Art 200/201; any direction to grant assent is clearly permissible and legitimate.

Judicial review is constitutionally entrenched in India and it is well recognized that the range of judicial review exercised by the superior judiciary in India is perhaps the widest and the most extensive known to the world of law. It is significant to note that even in UK where the concept of Parliamentary supremacy exists and judicial review is to that extent limited, the UK Supreme Court in R (on the Application of Miller) v The Prime Minister [2019] UKSC 41 ruled that the royal prerogative of prorogation of Parliament was amenable to judicial review and the impugned prorogation was held to be unlawful and it was declared that there was no prorogation.

The fifth and the seventh questions go together: In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor/the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor/the exercise of discretion under Art 201 by the President?

It is now well settled that every State action has to be reasonable. The reasonable exercise of power inheres its exercise within a reasonable time. Where no time limit is fixed for the exercise of power, it has to be exercised within a time that can be held to be reasonable. The exercise of power under Arts 111,200,201 is no exception. That must also pass the same test of reasonableness. It is true that no express time limit is prescribed for the discharge of functions under Arts 200 or 201. But it is equally true that these functions have to be discharged and these powers exercised within a reasonable time for such action to be reasonable. What is reasonable will depend on the facts and circumstances and vary from case to case. No timelines can be imposed/prescribed except by statute; it cannot be done by judicial fiat. But a court of judicial review can fix a standard/timeline by which the reasonableness of the action/exercise of power may be examined. That furnishes the answer to questions 5 and 7.

It is, however, significant to note that the questions do not really arise in the backdrop of the Tamil Nadu case. The Court laid down certain timelines regarding exercise of power under Arts 200 and 201, not to fundamentally change the procedure and mechanism stipulated by these provisions but only to lay down a determinable judicial standard for ascertaining the reasonableness of the exercise of power. The court of judicial review is the arbiter of the reasonableness of the exercise of power. The court cannot simply say that the power is exercised unreasonably. Some standard or yardstick is required to determine the reasonableness. The timelines have been laid down for that purpose. That has been done taking into consideration the recommendations of the Sarkaria and Punchhi Commissions as also guidelines issued by the Union Home Ministry in this behalf. They are fixed more as a yardstick for the Court to determine in judicial review whether the action/exercise of power is reasonable, as is clear from the judgment. The observations in paras 237 to 241 are unmistakable. It is not an amendment to the Constitution. No words are added to the constitutional text of Arts 111, 200 & 201.

As regards the eighth question, it cannot be said that the President is mandatorily required to seek the advisory opinion of the Supreme Court under Art 143 when the Governor reserves a Bill for the President's assent. He may do that if it is deemed necessary and appropriate. It cannot be said to be a constitutional requirement. The judgment in the Tamil Nadu case has only laid down that it would be prudent under such circumstances for the President to seek the advisory opinion under Art 143. It cannot be anything more.

With respect to the ninth question, the position is clear that the decisions of the Governor/President under Art 200/201 are justiciable at a stage anterior to the law coming into force. The question is very unhappily worded. The decisions/actions under Art 200/201 are necessarily before a law coming into force. Arts 200, 201 are concerned only with assent. The Bill becomes a law when assent is granted. It comes into force right then if it is so provided in the Bill or from such date as may be notified. As seen and discussed earlier, assent is justiciable. That is certainly before the law comes into force. The declaration of the law in Samsher Singh makes that clear: We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional....” The only sequitur is that refusal of assent, i.e., decision under Art 200/201 is justiciable. The courts cannot and do not undertake judicial adjudication of the contents of a Bill before it becomes law. Needless to state, judicial review/justiciabilty of decisions/actions under Art 200 or 201 is not adjudication of the contents of the Bill. It is only examining whether the refusal of assent is justified and valid in law.

The answer to the tenth question in theory is that the exercise of constitutional powers and the orders of/by the President/Governor cannot be substituted in any manner under Art 142. The judgment in the Tamil Nadu case must be seen and understood in its context. It is to be remembered that every interpretation is in its context. “In law context is everything.” There is an underlying principle and purpose behind Constitutional provisions. The constitutional underpinning in the Tamil Nadu case is that in a democracy a Bill which is passed by the legislature cannot be stifled or rendered nugatory. The question of its constitutionality or otherwise is for the courts once it becomes a law after assent is given. What the Court did was only to imbue the gaps and silences in the Constitution with substantive content by infusing them with a meaning which enhances the rule of law and promotes a constitutional culture.

Art 200 clearly lays down that the only course of action open to the Governor after a Bill has been reconsidered and passed by the legislature and presented to him again is to assent. He cannot then reserve it for the consideration of the President. The concluding words of the first proviso to Art 200 emphatically lay down that the Governor shall not withhold assent. Thus the Governor has no other option in that circumstance. In the factual context of the case, the Bills having been presented to him the second time after they were passed by the House, the assent of the Governor was a mere formality and deemed assent inevitably follows in such case. That flows from Art 200. It is against this background the Court held there was deemed assent. The only sequitur in the context was deemed assent. Recourse to Art 142 was not really necessary. Even without recourse to Art 142, the same result would follow-the Bills would be deemed to have been assented.

It is only in the very special and bizarre circumstances and the Governor's conduct (despite the law laid down) which the Court found “as it clearly appears from the events that have transpired even during the course of the present litigation has been lacking in bona fides” that the Court in exercise of powers under Art 142 declared that the Bills are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered. In any event Art 200 expressly mandates that he shall assent when the Bills are reconsidered and passed by the legislature and again presented to him.

Question 10 does not really arise.

The eleventh question is again inelegantly worded. A Bill is introduced in the legislature and passed as required under the Constitution. It is then presented to the Governor for his assent. The Bill becomes an Act-a law after assent is granted to it. While making of a law is legislative activity within the domain of the legislature, the process of law making is complete and the law is said to be enacted and brought into force when it obtains assent. A law made by the State legislature or more appropriately a Bill passed by the legislature is not a law in force without the assent of the Governor.

In our constitutional scheme assent by the President or the Governor, as the case may be, is an essential pre-requisite for any Bill to become law. The policies and programmes of a democratically elected Government find expression in legislation which is brought to fruition only on receiving assent. Without assent the Bill passed by the legislature becomes a sonnet writ on water and the Government's programmes remain illusory. In all constitutional democracies where assent by the Head of State is required for any legislative measure passed by the competent legislature to become law, such assent is almost a matter of course and the exercise of the power is hedged in by express limitations or conventions and the power is not intended to be exercised and is not exercised to undermine democracy or defeat or undo legislation made by democratically elected representatives.

Re: question 12- Whether it is not mandatory for any bench to first decide whether the question before it is of such a nature which involves a substantial question of law as to the interpretation of the Constitution and refer it to a bench of minimum five judges. Art 145 (3) prescribes the minimum number of judges to decide a case involving a substantial question of law as to the interpretation of the Constitution as five. This begs the question as to what is a case involving a substantial question of law as to the interpretation of the Constitution. The question of interpretation can arise only if two or more possible constructions are sought to be placed on a provision. A substantial question of law cannot arise where the law has finally and authoritatively decided by the Supreme Court. Where the question raised has already been decided and what remains is only the application of the principle laid down to the facts of a particular case, it would not be a substantial question of law as to interpretation of the Constitution.[see, inter alia, Abdul Rahim v State of Bombay, AIR 1959 SC 1315; State of J & K v Ganga Singh Thakur, AIR 1960 SC 356; Ram Chandra v State of Bihar, AIR 1961 SC1629; Chunilal Mehta v Century Spg & Mfg Co, AIR 1962 SC 1314; Bhagwan v State of Maharashtra, AIR 1965 SC 682; Madras Bar Association v Union of India, (2014) 10 SCC 1].

Seen in this light the Court in the Tamil Nadu case has not laid down anything new or different. It has not really expounded the law; it has only applied and amplified and taken the law further. That assent, or more correctly, refusal of assent is justiciable was unequivocally laid down long ago in Samsher Singh and reiterated subsequently. The language of Art 200 is clear and mandatory that when a Bill returned by the Governor is considered and passed by the legislature and again presented to him, the Governor shall not withhold assent. Further it long since settled that every State action and exercise of power must be reasonable and that takes within it the exercise in a reasonable time. Hence in this background there was no constitutional requirement or compelling need to refer the case to a Constitution Bench.

The answer to question 13 as to whether the powers of the Supreme Court under Article 142 are limited to matters of procedural law or Article 142 extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force is already available in the earlier judgments of the Court.

The jurisdiction and powers of the Supreme Court under Article 142 of the Constitution are supplementary in nature and are provided to do complete justice between the parties. The article gives flexibility to the Supreme Court to formulate orders and directions to meet unexpected situations. But the Court cannot ignore substantive statutory provisions dealing with the subject. The power is complementary to statutory powers exercisable when it is just and equitable to do so. The purposed constitutional plenitude of the powers of the Supreme Court to ensure due and proper administration of justice is intended to be coextensive in each case with the needs of justice and to meet any contingency. The power under Article 142 is intended to supplement the legal framework to do full and complete justice and not to supplant the law of the land. It is curative in nature and conceived to meet situations which cannot effectively and appropriately be tackled by the existing provisions of law. It is, therefore, advisable to leave this power undefined and uncatalogued so that it remains elastic enough to be moulded to suit the given situation.

To define is essentially to limit. As Sir Asutosh Mookerjee observed, the court must avoid the danger of crystallising into a rigid definition that judicial power and discretion which the law has left undetermined and untrammelled. To adapt the language of Cardozo, J, it is not a doctrinaire concept to be made use of with pedantic rigour; there must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities, which cannot foresee today the developments of tomorrow in their nearly infinite variety.

It has been stated that the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of “complete justice” of a “cause or matter”, the Supreme Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to powers of the Court under Article 142, but only to what is or is not “complete justice” of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power, no question of lack of jurisdiction or of nullity can arise.

The fourteenth question is: Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

The original jurisdiction of the Supreme Court is essential for deciding disputes between the Union and the constituent units. Such a jurisdiction is very essential in a federal Constitution. Hence, disputes between the Union and the State or States and States, etc. come within the original jurisdiction of the Supreme Court. Article 131 provides for that. It refers to disputes which arise in the context of the Constitution and the federalism it sets up. The disputes must also be in respect of legal rights and not disputes of a political character. The term “State” used in this article is not to be understood in the light of the definition of the term given in Article 12 of the Constitution.

It is important to note that when a Governor does not accord assent to a Bill it is not a dispute between the Union and the State government, though the Governor is a representative of the Union government and in that sense it could be seen as a dispute between the Union and the State government. But it is essentially a dispute between the legislature and the Ministry on one hand and the Governor on the other. A suit under Art 131 is, therefore, ruled out. Where assent to a State legislation is refused by the President, it may be a dispute between the Union and the State government. Even so, Art 131 does not explicitly bar recourse to any other remedy available at law. The existence of an alternative remedy is not a bar to invoking and exercising the writ jurisdiction. And in matters of such grave concern touching federalism and constitutionalism there can be no objection or impediment to pursuing the writ remedy.

Apart from the fact that answers to the questions referred are clear and available, it is to e noted that the Constitution does not lay down that the opinion submitted by the Supreme Court will be binding on the executive. It would be merely an opinion and nothing more than that. While the earlier view was that opinions under Art 143 being advisory do not lay down any law and are not binding, the Supreme Court laid down in the Special Courts Bill Reference, (1979) 1 SCC 380 that such an opinion is binding on all the courts in the territory of India, other than the Supreme Court. And in the Cauvery Water Disputes Tribunal Reference, 1993 Supp (1) SCC 96 it was observed that advisory opinions are entitled to due weight and respect and normally would be followed and that the said view which holds the field might usefully continue till a more opportune time.

There is something far more fundamental and having a bearing on the advisory jurisdiction which was laid down in the Cauvery case and which requires to be noticed: Art 143(1) empowers the President to refer for the Supreme Court's opinion a question of law or fact which has arisen or is likely to arise. When the Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is. The decision of the Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when the Court has not decided it. Secondly, a decision given by the Court can be reviewed only under Article 137 read with the relevant Supreme Court Rules and on the conditions mentioned therein. Further, when the Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision, it does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. Under the Constitution such appellate jurisdiction does not vest in the Court; nor can it be vested in it by the President under Article 143. To accept such a position would mean that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of the Court over its own decision between the same parties and the executive has a power to ask the Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the independence of judiciary. Furthermore, where the Court has noticed all the relevant statutory/constitutional provisions and there is no violation of any of the principles of natural justice or of any provision of the Constitution and the decision does not transgress the limits of the jurisdiction of the Court, that decision being inter-parties operates as res judicata on the said point and it cannot be reopened.

In the light of the foregoing, the reference is not maintainable. The judgment in the Tamil Nadu case is a well considered decision after hearing all the parties. References under Art 143 are made and Constitution Benches are constituted and sit and decide matters to illumine and resolve a constitutional issue, to harmonize conflicting views and to settle the law. But doubts should not be contrived and the legal landscape left dismal and cloudy. The effect of the present reference would be that only. To adapt the language of Dr. Radhakrishnan, when power outstrips reason and expediency outstrips constitutionalism the picture is not rosy. The answers to the questions referred are available. The Court should only reiterate that position or better still decline to answer the reference.

The Constitution contains a mélange of powers. No single institution or branch of government is even remotely supreme. Any talk about supremacy of any wing is totally puerile. Democracy and democratic values and principles underpin our Constitution. The Constitution has devised a structure of power relationship with checks and balances. Some tension and struggle occasionally arise. Reciprocal influence is a continuing process. That is good for the health and vibrancy of a constitutional democracy. One need not be too disconcerted by the various pulls and pressures tending to upset what one believes to be an ideal constitutional balance. “The basic dilemmas of art and law are, in the end, not dissimilar, and in their resolution- the resolution of passion and pattern, of frenzy and form, of convention and revolt, of order and spontaneity- lies the clue to creativity that will endure.” [Paul A. Freund, On Law and Justice (Cambridge, Mass.1968) 23] However, it is important that all of us and especially those in positions of power should always remember the profound truth that giving effect to the Constitutional provisions is a solemn exultation of the Constitution and that it is the Constitution that protects all in weather fair and foul.

The author is a Senior Advocate , views are personal.