CHENNAI: The “opinion” provided by the five-judge Constitution bench of the Supreme Court on the Presidential Reference regarding the powers of Governors and the President regarding assent for bills will not affect the earlier judgment of a two-judge bench of the court that granted “deemed assent” to 10 TN Bills that faced prolonged delays from Governor R N Ravi, at least two senior counsels and a retired judge told TNIE.
With TN’s challenge of the interim stay granted by a vacation bench of the Madras HC for nine of these bills from becoming operational coming up for hearing in the SC in December first week, the SC’s opinion assumes significance. It is noteworthy that during the previous hearing in this case, the centre had argued that the SC should wait for the Constitution bench’s opinion on the Presidential Reference.
Substantively, TN govt has won: Ex-HC judge
Justice K Chandru, retired judge of the Madras High Court, said the opinion provided by the SC in the Presidential reference is only “advisory in nature”. “So, the present view of the court cannot torpedo the earlier judicial order,” he said.
He said, contrary to the general perception that the views expressed by the Constitution bench on Thursday went against the Tamil Nadu government, he said 85% of the views were in favour of the state. “Substantively, the state government has won, but it might have lost procedurally,” he opined.
He said the Constitution says a timeline cannot be set for clearing the Bills, and the SC on Thursday made it clear that they were not ready to give their view in favour of what is not found in the Constitution.
He, however, said the SC has also made it clear that the governor has only three options before him: Grant assent, return the Bill, or reserve it for the consideration of the President. “For forwarding the Bills to the President as well, the SC has now put a rider — the Governor cannot just forward the Bills to the President, he has to assign reasons for doing so,” Justice Chandru said.
DMK MP and senior advocate P Wilson said the “opinion” expressed by the SC on Thursday was not binding and it would in no way affect the judgment delivered by a two-judge bench of the SC on April 8 (granting deemed assent) in its “adjudicatory jurisdiction”. He emphasised that the Presidential Reference offered under Article 143 was only “advisory” in nature and even the President can either choose to take it or leave it.
He said that a nine-judge Constitutional bench, in the St. Xavier’s College Ahmedabad case in 1974, had made it clear that the opinion offered by the SC under Article 143 will be same as the opinion of a law officer. “That will not bind the court,” he said.
Senior counsel KM Vijayan also said that the SC’s opinion on the Presidential Reference is not binding and cannot be considered as a setback for the states. Stating that “none of the aspects” in the answers provided by the SC on Thursday were against the states, he opined that it has in fact spelt out the option for the states to approach the court if a governor fails to discharge his constitutional duty.