Why in news?

• The Supreme Court’s recent judgement addresses the dispute between Tamil Nadu Governor and the DMK government over delays in clearing state Bills.
• The Court:
  • Laid down a specific timeframe for the Governor and the President to act on Bills sent to them.
  • Asserted that the Supreme Court should have a role when a Governor reserves a Bill for the President citing possible unconstitutionality.
  • Suggested that in such cases, the President "ought to" invoke Article 143 to seek the Court’s opinion.
    • Article 143 of the Constitution empowers the President to seek the Supreme Court’s advisory opinion on significant questions of law or fact.
• The Court’s judgement aims to prevent misuse or delay in the legislative process and ensure judicial scrutiny where constitutionality is questioned.

What’s in Today’s Article?

• Role of the Supreme Court under Article 143
• Need for Legal Opinion from Supreme Court
• Comparative Constitutional Practices
• Recommendations by Constitutional Commissions
• Expanding the Scope of Article 143
• Conclusion

Role of the Supreme Court under Article 143

• The Court highlighted that when a Governor reserves a Bill for the President under Article 200, citing "perceived unconstitutionality", the President "ought to" seek the Supreme Court’s opinion under Article 143.
• Nature of SC’s Opinion under Article 143
  • The Court acknowledged that its advisory opinion under Article 143 is not binding.
  • However, it holds high persuasive value and should ordinarily be accepted by both the legislature and the executive.
  • The non-binding nature does not undermine the Court’s reasoning or principles used to assess constitutionality.
• Reference to Precedent: 1978 Special Courts Bill Case
  • The Court referred to the ‘In Re: The Special Courts Bill, 1978’ case to reinforce the idea that:
    • Pre-enactment judicial review can help avoid legal challenges
    • Constitutional courts are not barred from giving suggestions or opinions before a Bill becomes law.
• Importance of Judicial Scrutiny
  • The judgement emphasizes:
    • Preventing patently unconstitutional Bills protects public resources.
    • It respects the legislative process by encouraging a constitutional review before enactment.
    • Consultation with the SC via Article 143 helps address bias or mala fides in the Centre’s handling of reserved Bills.
• Limiting Executive Overreach
• The Union executive should not act as a constitutional court in determining a Bill's validity.
• When a Bill is reserved for constitutional concerns, the executive must exercise restraint.
• Only the constitutional courts have the authority to decide on the vires (validity) of such Bills.
• Judicial Restraint in Policy Matters
  • The Court clarified that it would:
    • Examine only pure legal or constitutional questions under Article 143.
    • Refrain from offering opinions on matters that are purely policy-based or political, in line with the "political thicket" doctrine.
    • Respect the executive's prerogative in cases such as:
      • Whether the President should assent to a State law that is repugnant to a Central law under Article 254(2), which is a policy decision.

Need for Legal Opinion from Supreme Court

• The Court emphasized that seeking legal opinion under Article 143 is crucial, as:
  • There is no mechanism at the state level for Governors to seek judicial advice on the constitutionality of Bills.
  • The only route is for the Governor to reserve the Bill for the President, who then should invoke Article 143 to consult the Supreme Court.

Comparative Constitutional Practices

• While delivering the verdict, Justice J B Pardiwala cited international examples to support the concept of judicial review before assent:
  • Sri Lanka: Article 154H allows the Governor to refer a Bill to the President, who must consult the Supreme Court on constitutional validity. If upheld, the Governor is bound to grant assent.
  • Republic of Kiribati: Section 66 allows the Beretitenti (Head of State) to withhold assent only if the Bill is unconstitutional. If passed again, the only option is to refer it to the High Court or grant assent if found constitutional.

Recommendations by Constitutional Commissions

• Both the Sarkaria Commission and the Punchhi Commission had recommended:
  • The President should seek the SC's opinion under Article 143 for Bills that appear patently unconstitutional.
  • Article 201’s objective is also to safeguard democratic principles by ensuring judicial scrutiny before an unconstitutional law is enacted.

Expanding the Scope of Article 143

• The Supreme Court is proactively expanding the ambit of Article 143 by:
  • Setting a timeframe for the President to act.
  • Urging the President to seek SC’s opinion on constitutionality before assenting to a reserved Bill.
  • At the same time, acknowledging its own limitations when the reference involves policy or politics.

Conclusion

• The judgement sets a constitutional framework for handling Bills perceived as unconstitutional:
  • It defines roles for the Governor, President, and Supreme Court.
  • Encourages a pre-enactment judicial check to safeguard constitutional integrity.
  • Balances proactiveness with judicial restraint, avoiding interference in executive or political domains.