Why the President decided to dial the SC in TN governor’s case

On Thursday, President Droupadi Murmu exercised her powers under Article 143 of the Constitution to send a ‘reference’ to Supreme Court, asking 14 questions on the extent of the legal powers of governors and the President. This marks only the fifteenth time since Independence that such a reference has made its way from Raisina Hill to Tilak Marg.What was asked, what was left unsaid | The 14 questions can be classified into four broad heads: 1. Nine relate directly to powers of governors and the President to assent to bills.2. Two to Supreme Court’s extensive and extraordinary power to do ‘complete justice’ under Article 142.3. Another two are jurisdictional and procedural questions relating to Articles 131 and 145.4. One is a very general question asking whether governors are bound by the aid and advice of the ministry in a state.The context of this reference is plain as day — last month’s SC judgment in which a division bench laid down ‘time limits’ for governors and President to act on bills. It ‘deemed passage’ of bills withheld by Tamil Nadu governor. However, this context is left out of the reference, and for good reason.Answer doesn’t overrule judgment | Ordinarily, SC is understood to have an ‘appellate’ and an ‘original’ jurisdiction. As part of its appellate jurisdiction, it hears appeals from HCs, and as part of its ‘original’ jurisdiction, it hears certain matters, which can be brought to the highest court directly, such as questions of fundamental rights. * A Presidential reference represents a third kind of ‘jurisdiction’ — though the word is not entirely appropriate — popularly called SC’s ‘advisory jurisdiction’. Although references often arise as a result of earlier judgments, they should not be confused with ‘reviews’. As SC clarified in the Presidential reference sent to it in 2012 where it was asked to clarify certain aspects of the 2G spectrum auction it had earlier ordered, an answer to a reference cannot overrule a judgment. * In the Indian legal system, binding judicial precedent can only arise from the settlement of a dispute on certain facts between two adversarial parties — this is not the case in a Presidential reference.* Answering a Presidential reference sent to SC by the 1977-79 Janata govt, seeking clarity on whether its bill seeking to create special courts to prosecute alleged excesses of the Emergency period, then CJI Chandrachud Sr had added the caveat that the judges’ opinion carried no more weight than an advisory opinion by a senior lawyer.Impact of Presidential references | In gist, Presidential references do not create binding precedent. However, given that they represent the considered legal opinion of at least five SC justices, it is only the unwise govt that would ignore them. They lay down important markers showing which way SC is likely to deal with a particular point of law and apply it to the facts in any future case. In the Ahmedabad St Xavier’s Society case, SC went so far as to say that if a future bench disagrees with an interpretation given in an answer to a Presidential reference, it must refer the issue to a bench larger than the one which answered the reference — the same procedure that must be followed if it were a binding judgment.In practice, popular arms of govt may pay differing amounts of respect to answers received. In a 1960 reference, Berubari Union, SC advised that any cession of Indian territory would require constitutional amendment. Though this interpretation was controversial, Indian govts have invariably followed it — the 2015 Indo-Bangladesh Land Boundary Agreement, by which India and Bangladesh swapped certain enclaves and exclaves, was suitably ratified by the Constitution (100th Amendment) Act. On the other hand, when SC rendered an opinion in 1991 that the Karnataka Cauvery Basin Irrigation Protection Ordinance (an episode in India’s longest running inter-state water dispute) was unconstitutional, the state does not seem to have considered it a helpful suggestion. What next | The language of Article 143 doesn’t require SC to answer this reference — it says only that it ‘may’ do so. However, such a reference has been rejected in toto only once, in 1993, when SC refused to give an opinion on the Ram Janmabhoomi dispute. In the present reference, govt has essentially asked SC to elaborate on judge-made law. There is precedent for this: in 1998, the workings of the collegium system, created out of whole cloth in 1993, were tweaked and clarified by SC in response to a Presidential reference. SC judgment in governor RN Ravi’s case did leave many questions unanswered — this reference is, at the very least, opportunity to answer them. The writer is with Vidhi Centre for Legal Policy