President Ought To Seek Supreme Court's Opinion When Governor Reserves Bill On Ground Of Unconstitutionality: SC

Another key takeaway from the Supreme Court's judgment in the Tamil Nadu Governor case is its observation that when a Governor reserves a Bill for the President's assent on grounds of perceived unconstitutionality, the President ought to seek the Supreme Court's opinion.

Article 143 of the Indian Constitution grants the President the power to seek advisory opinions from the Supreme Court on matters of public importance. This advisory jurisdiction allows the President to consult the Supreme Court on questions of law or fact.

Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to this Court in exercise of his powers under Article 143 of the Constitution.

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.

This exercise will prevent a patently unconstitutional bill from becoming a law and thus save public resources, the Court opined.  The President's recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government's approach to bills reserved under Article 200. The Court said that in such situations, it is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143. 

Since the constitutionality of a bill is a matter which falls within the exclusive domain of the courts, the opinion rendered by the Supreme Court under Article 143 holds high persuasive value and should ordinarily be accepted by the legislature and the executive.

The President can deviate from the Court's opinion only if there are policy considerations other than legal questions involved. Even then, the President must assign cogent reasons for rejecting the Court's view.