President Droupadi Murmu’s decision to invoke her power under the Constitution’s Article 143(1) to seek clarity to the Supreme Court’s verdict fixing deadlines for gubernatorial and presidential assent to state bills has raised significant questions. One of the President’s prime concerns among the 14 questions posed was whether, in the absence of any clear constitutionally-prescribed time limit, the court can impose such deadlines and prescribe the manner of exercising the powers through judicial orders. The reference has raised questions of the court’s advisory jurisdiction and the implications of a presidential reference in a case already adjudicated by the nation’s top court.
Tamil Nadu has used the reference to rally other opposition-ruled states to work together on their views on the Union’s approach. Chief Minister M K Stalin has written to seven opposition-ruled states and the Union territory of Jammu and Kashmir on Saturday stating that it squarely addressed the historic judgement in the Tamil Nadu Governor case that was published on April 11. He requested the leaders—including those of Kerala, Telangana, West Bengal and Punjab, who had taken similar pleas on delayed assent to bills to the judiciary—to coordinate legal strategy on the matter “to preserve and protect the basic structure of the Constitution”.
A number of the questions raised seem to have already been addressed by the top court. The Supreme Court has said its invocation of Article 142 in the Tamil Nadu Governor case was meant to do “complete justice” in the case at hand. The court had clarified in the Cauvery Water Disputes Tribunal case of 1991, “When this court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law” warranting a reference. In the 2G case of 2012, the court had said it is not bound to render an advisory opinion on every reference. Add to this the fact that a number of presidential references since the republic’s founding have not ended up with substantive changes in matters of law, and we get a picture of the limits the reference may face. But apart from further clarity on the constitutional questions, what remains to be seen is the political mobilisation on the issue on either side of the aisle before parliament convenes again.