Editorial 1 : After President Murmu seeks advisory opinion from SC, can court overturn its R N Ravi decision?
Context:
President Droupadi Murmu has invoked the Supreme Court’s advisory jurisdiction on whether timelines could be set for the President and Governors to act on Bills passed by state Assemblies.
The Constitutional provisions
- Under Article 143(1) of the Constitution, the President may refer a “question of law or fact” to the Supreme Court for its opinion.
- The opinion, unlike a ruling, is not binding. The reference was made on May 13 ruling in which it fixed a three-month deadline for the President to clear Bills reserved for her consideration by the Governor.
- That ruling set aside Tamil Nadu Governor R N Ravi’s decision to withhold assent to 10 pending Bills.
What is the SC’s advisory jurisdiction?
- The Constitution extended the provision in the Government of India Act, 1935 to seek the opinion of the Federal Court on questions of law to questions of fact as well, including certain hypotheticals.
- Article 145(3) requires any such reference to be heard by five judges, after which the SC returns the reference to the President with the majority opinion.
- Under the Constitution, the President acts on the aid and advice of the Cabinet.
- The advisory jurisdiction allows her the means to seek independent advice to act on certain constitutional matters. It is a power that the President has invoked on at least 15 occasions since 1950.
Supreme court and presidential reference
- Article 143(1) states the court “may, after such hearing as it thinks fit, report to the President its opinion thereon”. The word ‘may’ indicates that it is the court’s prerogative to answer the reference. The SC has so far returned at least two references without answering.
- Since advisory jurisdiction is not binding as a precedent, even if the SC had held the law to be unconstitutional in the Article 143 reference, it would still have to decide its validity in the other batch.
- The SC’s opinion would also be futile since the issue was no longer before the President.
Overturning decision
- In its 1991 opinion on the Cauvery Water Disputes Tribunal, the SC said that Article 143 is not a mechanism for the executive to seek review or reversal of established judicial decisions of the Supreme Court.
- The opinion said that when 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 integral so as to require the President to know what the true position of law on the question is.
- The SC also said it could not “countenance a situation” where a question in a reference “may be so construed as to invite our opinion” on a settled decision of the court.
- The government can, however, file for a review of the recent ruling, and can move a curative petition in an attempt to reverse it.
What is the broader context behind the presidential reference?
- The issues in the R N Ravi case essentially arise out of the interplay of powers between the Centre and Opposition-ruled states.
- Governors, who are appointed by the Centre, are seen to be undercutting elected state governments by their refusal to clear Bills passed by the Assembly.
- The SC in its ruling allowed states the right to seek a “writ of mandamus” from the SC against the President.
- This is essentially a right to knock on the doors of courts seeking a directive against the President if she does not decide on the Bills within the prescribed time limit.
- The government used the ruling to argue that the judiciary was undermining Parliament or the people’s mandate.
- Attorney General for India R Venkataramani said the President “was not heard” before the SC passed directives for her office to follow.
- Vice President Jagdeep Dhankhar criticised the ruling. He has raised the issue of “Parliamentary supremacy” on several occasions, and called for limited judicial review and greater adherence to the separation of powers.
- That said, such tussles between Parliament and the judiciary are as old as the Constitution itself.
Conclusion
In the first three decades after Independence, courts and the government sparred on the interpretation of the right to property, leading to constitutional amendments and adverse court orders. Eventually, in the landmark 1973 Kesavananda Bharati ruling, the court allowed land reforms, watering down the fundamental right to property, but severely restricted Parliament’s powers to tinker with any other fundamental right.