Presidential Reference | Centre Requests Supreme Court To Declare Tamil Nadu Governor Case Judgment Wrong
On the last day of the hearing of the Presidential Reference on the issues related to grant of assent to Bills, the Solicitor General of India, for the Union, requested the Supreme Court to declare that the two-judge bench Tamil Nadu judgment does not lay down the correct law. After 10 days of hearing, the Supreme Court today reserved its opinion in the Presidential Reference on 14 questions, including whether timelines can be prescribed for the assent of Bills.
Mehta referred to the 2G Reference to submit that although the Court is not sitting in an intra-Court appeal while exercising its advisory jurisdiction under Article 143, this does not preclude it from holding that the law laid down in an earlier judgment is incorrect without disturbing the binding value of the judgment inter-se parties. He added that the Court is exercising its inherent jurisdiction here. This argument was made in reference to the arguments made by States and interveners that the questions raised in reference have already been settled via the Tamil Nadu judgment, and the Court can't unsettle while exercising Article 143 powers.
"There was an extreme argument that you can't do anything about Tamil Nadu view, I am not talking about the judgment. Intra-party, the judgment is final. That is the law of the land, it binds us. We can't argue contrary to it. But my lordships have the jurisdiction and power to declare that the Tamil Nadu judgment is not the correct law. That is what, as a last proposition, I would like to submit...There is a 2G judgment, where the questions referred by the hon'ble President one of the questions was whether this particular judgment of so and so is a correct law. Court said intra-party, we can't do, but can say a previous view is incorrect."
However, Senior Advocate Kapil Sibal (for West Bengal) objected to the SG's submission and stated that no such question has been referred here. Chief Justice BR Gavai asked: "Is there a question framed in this regard? We will be only answering [those questions asked in the Presidential Reference].
Mehta submitted that he was responding to the arguments made by some States that the Court cannot revisit the TN Governor judgment. He pointed out that Senior Advocate Arvind Dattar(for Punjab) had argued that the present bench can't touch the view laid down in Tamil Nadu judgment. Datar had argued that the judgment in the TN case was the law of the land as per Article 141 and it was binding on the present bench hearing the reference.
While the issue of Bills as raised in the Tamil Nadu judgment has attained finality, it does not mean that the reference bench can say that the judgment was incorrect.
"Your lordships' inherent powers can permit to reverse the earlier view expressed while maintaining the decree intra-parte...In my respectful submission and prayer, please say, it is not the correct law which is laid down," he averred.
Mehta warned that if the position in the Tamil Nadu judgment is to be followed, the Court would face a lot of litigation.
"Visualise a situation. The judgment of this Court in Tamil Nadu says that if the President does not decide within three months or the Governor does not decide within one month, you can come to us. Now, State comes before Your Lordships and the prayer would be direct him [the Governor] to grant assent. The question is, can that be done? Can a writ of mandamus be issued to either the hon'ble President or the Governor to grant an assent? The problem does not stop there. Somebody moves an application or file a separate petition that no, prevent the Governor from granting assent and to refer the Bill to the President because there are repugnancy. Thus two petitions will be listed and there will be some MLAs who will file a separate petition that no, prevent the Governor from either to grant assent or reference it, but ask him to return it to the House because when the Bill was passed, the Chief Minister was enjoying the majority confidence, now we don't want that to happen. Would then your lordships be in a position to substitute what option the Governor would exercise? If your lordships have a power of granting positive mandamus that do something, then your lordships can also say, don't refer it to the President. Qua timet are not permissible and therefore, this exercise is not justiciability."
A 5-judge bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing Presidential Reference made by President Droupadi Murmu a month after the Tamil Nadu judgment was delivered wherein, a bench comprising Justice JB Pardiwala and Justice R Mahadevan declared 10 Bills as having got "deemed assented" noting the Governor acted mala fide in sitting over Bills and then reserving it for the President after they were re-enacted by the Assembly.
Live updates from the hearing can be followed here.
Reports of previous days :