SC: PRESIDENT SHOULD CONSULT SUPREME COURT WHEN GOVERNOR FLAGS BILL AS UNCONSTITUTIONAL:

An important takeaway from the Supreme Court’s judgment in the Tamil Nadu Governor case is its observation that if a Governor reserves a Bill for the President’s assent on the grounds of perceived unconstitutionality, the President should seek the Supreme Court’s opinion.

Under Article 143 of the Indian Constitution, the President has the authority to request an advisory opinion from the Supreme Court on matters of public importance. This provision enables the President to consult the Court on legal or factual questions.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan observed that it would be "prudent" on the part of the President to consult the Supreme Court as per Article 143 when a State Bill is reserved for her assent on the ground of unconstitutionality. "The President must be guided by the fact that it is the constitutional courts that have been conferred with the ultimate authority of interpretation of the Constitution and the laws," the Court observed. The Court said that a bill appearing to be unconstitutional must be assessed by a judicial mind. The Court also noted that both the Sarkaria Commission and the Punchhi Commission categorically recommended the President to seek the opinion of this Court under Article 143 in respect of bills that may be apprehended to be patently unconstitutional.

"We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the Governor to refer bills to the constitutional courts for their advice or opinion thereupon. Under the scheme of the Constitution as we see it, there is only one possible way for the Governor to ascertain the palpable constitutionality of a bill, which is by way of reserving it for the consideration of the President who in turn is then expected to invoke Article 143," the Court observed.

The Court observed that seeking the Supreme Court’s opinion in such cases would help prevent clearly unconstitutional bills from becoming law, thereby conserving public resources. Referring the matter to the Court under Article 143 also helps address concerns of bias or bad faith in the Central government’s handling of bills reserved under Article 200.

The Court emphasized that determining a bill’s constitutionality lies exclusively within the judiciary’s domain. Therefore, the Union executive should not attempt to assume this judicial role. Instead, as a matter of practice, the President should refer such issues to the Supreme Court under Article 143.

The opinion delivered by the Supreme Court under Article 143 carries significant persuasive authority and is ordinarily expected to be accepted by both the legislature and the executive. If the President chooses to deviate from the Court’s view, it must be only on grounds of policy considerations beyond legal issues and even then, must be supported by clear and compelling reasons.