SC weighs limits of its role in Prez reference

A constitution bench of the Supreme Court on Thursday asked whether the judiciary should feel “powerless and sit idle” when another wing of democracy fails to discharge its constitutional duties, as it reserved judgment on a rare presidential reference questioning whether courts could prescribe timelines for the President and governors to act on state bills.

- Utkarsh Anand

On the last day of arguments, Solicitor General (SG) Tushar Mehta urged the bench to hold that the court’s April 8 judgment, which laid down deadlines for gubernatorial and presidential assent, “does not lay down the correct law” and should carry no precedential value. “The way this court decides will determine how the country is governed,” Mehta submitted.

CJI Gavai, however, posed a pointed question to the SG: “I publicly say that I am a strong believer in the doctrine of separation of powers and though judicial activism has to be there, it should not turn into judicial adventurism. But at the same time, if one wing of democracy fails in discharging its duties, would the court, which is the custodian of the Constitution, be powerless and sit idle?" Mehta countered that issuing judicial directions to constitutional functionaries like governors or the President would violate separation of powers. "The executive and legislature are also custodians of the Constitution. Issuing a mandamus in a discretionary legislative function of a co-ordinate constitutional organ would upset the balance," he argued.

The presidential reference was made by President Droupadi Murmu under Article 143, after a two-judge bench's April 8 ruling in State of Tamil Nadu Vs governor of Tamil Nadu that imposed a one-month deadline on governors to act on re-enacted bills and a three-month limit on the President even though the Constitution itself is silent on timelines.

That case was about Tamil Nadu governor RN Ravi delaying his assent to bills almost interminably, and mirrored a recent trend in states ruled by parties other than the BJP or its allies, where Governors and the state government end up having an antagonistic relationship.