'We'll Be Just Expressing A View On Law, Not On TN Governor Decision' : Supreme Court On Presidential Reference Over Bill Timelines

The Constitution Bench of the Supreme Court, which is hearing the Presidential Reference on the issue relating to Bills, orally observed during the hearing on Tuesday (August 19) that it was only sitting in an advisory jurisdiction and not in appeal over the judgment in the Tamil Nadu Governor case which laid down timelines for the President and the Governor to act on Bills submitted for their assent.

"We will be expressing just a view of law, not on the decision in the Tamil Nadu case," Chief Justice of India BR Gavai said in response to the preliminary objections raised by the States of Kerala and Tamil Nadu to the maintainability of the Reference.

"We are in advisory jurisdiction, we are not in appellate. In Article 143, the court can render an opinion that a certain judgment does not lay down correct law but it will not overrule the judgment," Justice Surya Kant stated.

The bench - also comprising Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice A Chandurkar -started by hearing the preliminary objections raised by Senior Advocate KK Venugopal (for Kerala) and Senior Advocate Dr Abhishek Manu Singhvi (for the State of Tamil Nadu) to the maintainability of the reference.

They argued that the questions raised in the Reference were substantially and directly answered by the judgment in the TN Governor case by the two-judge bench. Hence, the advisory jurisdiction under Article 143 cannot be invoked to revisit the issues already decided in a judgment.

CJI BR Gavai pointedly asked Venugopal about the impact of Article 145(3), which prescribes that questions of substantial constitutional importance must be decided by a Constitution Bench of no less than 5 judges. CJI pointed out that none of the judgments cited by Venugopal, delivered in the cases pertaining to Punjab, Telangana and TN Governors, were delivered by 5-judge benches. 

Attorney General for India R Venkataramani at this juncture interjected to state that he had specifically raised the plea for a larger bench reference in the TN Governor case, which was not considered by the two-judge bench.

Venugopal submitted that a judgment of the Supreme Court, be it of any bench, is binding on all as per Article 141. "Supreme Court is being asked to sit on judgments which is already decided...This is wholly outside Article 143 because mylords can't touch a judgment in Article 143 which has been decided," he stated relying on the judgments in earlier References such as Cauvery, 2G etc.

Venugopal added that the President's Reference, in effect, was a Reference by the Union Government, since the President acts as per the aid and advice of the Council of Ministers. "The Reference is an attempt by the Government of India without filing a review," he said.

Senior Advocate Dr AM Singhvi submitted that Article 143 power cannot be used as an intra-court appeal; nor is it a substitute for review or curative powers. 

Singhvi referred to the passages in Cauvery Reference which held that Article 143 cannot be used to answer questions which have already been decided in a judgment. However, he said that the decision in the 2G reference has brought in a nuance, since the said reference clarified a previous judgment to a certain extent. Even then, the 2G reference did not disturb the decision which bound the inter-se parties in the earlier decision, though the point of law was clarified for future.

"Inter-se decision cannot be touched in Article 143, because it would be subversive of all judicial principles," he submitted. In the 2G reference, the Court clarified the point of law regarding the necessity of auction for all public resources; however, it did not disturb the cancellation of spectrum licenses ordered in the previous decision.

Such an exercise of clarifying law without disturbing the inter-se decision is not possible in the present case as the "law and the decision are fused", he said. The Court cannot clarify the decision given in favour of Tamil Nadu in Article 143 jurisdiction. "If the reference is allowed to proceed, it would mean for Tamil Nadu, this will be the law, but for the rest of the country, the law will be something else. That would be an anomalous position," Singhvi said.

"If all the questions raised in the reference are answered in a way different from the judgment of the 2-judge bench, it will constitute a change of law also in the decided case of TN, which is not permissible in Article 143 jurisdiction," Singhvi argued. He argued that it was impossible to answer the Reference without 

" If mylords can find a way to answer the reference without disturbing the Tamil Nadu decision, I have no problem," Singhvi said.

The bench said that it is aware of the contours of the jurisdiction under Article 143 and its advisory nature.

The AG said that the present Reference is a "sui generis" one as the President is seeking advice as to what should be done when there are conflicting judgments by benches of various strengths on the point.

"President is the master of Article 143, and the Court may go into the previous judgments; there is no threshold or limitation that the court can't go into. There have been 15 references in the past and the court has gone into previous judgments. It may agree or disagree...In a given case of public importance, the court can say we depart from the practice and we will look into questions, including old precedent. I would say, given the importance of Article 143, the Court can depart from earlier precedents; there is nothing like an inflexible rule. If that is the case, Article 143 will completely lose its essence," AG submitted.

Solicitor General of India Tushar Mehta also supported the argument that the Court can revisit and even vary an earlier judgment while exercising Article 143 power. He said that the Court in Reference refrains from revisiting earlier judgments not due to any jurisdictional bar but as a self-imposed restriction. Even that restriction has been done away with as per the 2G Reference, he stated, quoting from the judgment.

The SG argued that the Supreme Court has the inherent power to overrule its judgments, and it is not part of any appellate power.

"This is for the first time, the President felt functional disharmony arose and will arise because of no authoritative pronouncement. Because two-judge bench fixes timeline for another authority. There is constitutional functional problem- how the governor and the President would act...the highest head of executive is seeking guidance, the judgments of five, three, and two have created a constitutional problem," SG submitted.

Senior Advocates Harish Salve, Neeraj Kishan Kaul and Maninder Singh also made brief argument supporting the maintainability of the Reference. They argued that the Court can exercise inherent jurisdiction to overrule an earlier decision in advisory jurisdiction because it is a self-imposed rule of judicial discipline. 

After hearing the preliminary objections, the bench started hearing the Attorney General on the merits.

The hearing is progressing. The live updates from the hearing can be followed here. 

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Case Details: IN RE : ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR AND THE PRESIDENT OF INDIA