Presidential Reference Has Echoes of a Review Petition

Many issues arise from the presidential reference listing 14 questions that were made to the Supreme Court this week, in the aftermath of the apex court's judgment in the case involving the pendency of gubernatorial assent for a clutch of Bills passed by the Tamil Nadu assembly.

- Kaleeswaram Raj

As is often said, the Supreme Court is also a political power centre. The drastic effects of the judgment by the Pardiwala-Mahadevan Bench that evolved the idea of deemed assent for 10 Tamil Nadu Bills that were pending with the governor are quite visible.

Within hours of the judgment, Tamil Nadu notified all the laws that had been detained by the constitutional procedure of gubernatorial assent for quite a long time. Deadlines were set by the court for gubernatorial and presidential (upon referral of a Bill to the President by the governor) assent. It was the outcome of an apparent activist posture by the Supreme Court.

An elementary issue that arises from the presidential reference in this instance is whether matters that are already adjudicated by the Supreme Court can be posed again before the Court by way of presidential reference. A perusal of the questions in the reference will show that a substantial number of them are answered in the Tamil Nadu Governor judgment or in the earlier decisions of the Supreme Court.

For instance, the question of whether the governor is bound by the aid and advice tendered by the Council of Ministers has been answered by a Constitution Bench—in the affirmative—in Shamsher Singh (1974). The exceptions to this general rule as provided in the Constitution were highlighted in the Tamil Nadu Governor verdict and also in some previous pronouncements like Nabam Rebia (2016). In Madhya Pradesh Special Police Establishment (2004), the Court held that the governor has discretion in deciding on the question of sanctioning the prosecution of ministers in a Cabinet as it involves a constitutionally permitted exception.