The Salience of the Presidential Reference

Notwithstanding the commendable aspects of the judgement, the decision on ‘deemed consent’ by invoking Article 142 smacks of judicial overdrive, writes Prof Satya Narayan Misra

- Prof Satya Narayan Misra

ARTICLE 143 of the Indian Constitution states that the President can ‘obtain the opinion of the Supreme Court on a question of law or fact that has arisen or is likely to arise, of public importance’.

Yet Kapil Sibal feels that the President is bypassing the legal process available to the government under Article 137 or a curative petition while dealing with the recent judgment involving the government of Tamil Nadu and the Governor, where the Court has set a time limit for deciding on bills by the Governor and the President. While Sibal feels, as does CM Stalin, that the reference is a clandestine way to reverse the decision taken by a two-judge bench. Justice Kaul, a retired SC judge, feels that the power of the President to refer to Article 143 cannot take away the Supreme Court's power under review and curative jurisdiction.

Article 200 stipulates that the Governor can either assent, withhold assent, or refer the bill for consideration by the President. However, if the bills are sent back for reconsideration by the state, the article stipulates that they will be assented to by the Governor if sent back after reconsideration. The article also provided a window for non-assent if it tried to ‘derogate the powers of the High Court’. While the article provides for the return of the bill by the Governor “as soon as possible”, it does not provide for a timeline. Article 201 stipulates that the President can either assent or withhold assent if the Governor refers it. If it is referred back by the President to the state government and the state government returns it after reconsideration within six months, it will be presented to the President for consideration. There is no stipulation that the President will have to assent, unlike the Governor under Article 200.