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Did verdict on timelines for Prez cross the line? SC to give opinion tomorrow
NEW DELHI: The Supreme Court will on Thursday deliver its advisory opinion on a rare presidential reference that asked whether constitutional courts can prescribe timelines for the President and governors to act on state bills -- a question that cuts to the heart of separation of powers, federalism and constitutional silences.
The opinion comes more than two months after a five-judge constitution bench reserved its decision on September 11, following marathon hearings that probed the limits of judicial authority when executive inaction risks paralysing democratic processes.
On September 11, after ten days of extensive arguments, the constitution bench comprising Chief Justice of India (CJI) Bhushan R Gavai and justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar reserved its verdict. The verdict will be pronounced days before CJI Gavai demits office on November 23.
The hearings were prompted by a reference made by President Droupadi Murmu under Article 143 in May, seeking clarity on whether the Supreme Court can set binding timelines for gubernatorial or presidential assent.
The issue arose after a two-judge bench's April 8 ruling in the State of Tamil Nadu Vs Governor of Tamil Nadu, fixed a one-month deadline for governors to act on re-enacted bills, a three-month window for presidential assent, and even invoked Article 142 to “deem” ten Tamil Nadu bills as assented to.
The reference places before the court 14 significant questions, including whether silence in Articles 200 and 201 can be judicially filled by imposing procedural timelines; whether assent-related functions are reviewable; and whether Article 142 can override explicit constitutional provisions. It also asks whether a “deemed assent,” as ordered in April, is constitutionally sustainable.
During arguments, solicitor general (SG) Tushar Mehta urged the constitution bench to hold that the April 8 ruling “does not lay down the correct law” and should have no precedential value. He cautioned that judicially crafted timelines could provoke constitutional crises. “The way this court decides will determine how the country is governed,” Mehta said.
But the bench was not immediately persuaded.
CJI Gavai posed a stark question: “If one wing of democracy fails in discharging its duties, would the court, which is the custodian of the Constitution, be powerless and sit idle?”
Mehta argued that any mandamus to constitutional functionaries like governors or the President would violate the separation of powers. Issuing directions in discretionary constitutional functions, he said, “would upset the balance,” adding that the executive and legislature, too, are “custodians of the Constitution.”
Several states, including West Bengal, Tamil Nadu, Punjab, Telangana and Karnataka opposed the Union's stance. Senior advocates Kapil Sibal, Abhishek Manu Singhvi and Arvind Datar argued that Article 143 cannot be invoked to unsettle a binding judgment. They also emphasised that governors' prolonged inaction has concrete consequences for governance and democratic accountability.
Attorney general R Venkataramani, however, contended that the court cannot “remodel” Article 200 to “make it look better.” The discretionary space granted to governors, he submitted, is structurally embedded in the constitutional design.
Justice Kant observed during the hearings that a distinction may exist between directing a governor to take a decision within a reasonable time and dictating what that decision should be.
This is the first presidential reference in several years, and one that carries immense implications for Centre-state relations.
Although advisory opinions under Article 143 are not binding, they historically shape constitutional interpretation and political conduct. Since Independence, only 14 such references have been made, with the Supreme Court declining to answer only once -- in the 1993 Ayodhya reference when it cited ongoing litigation and judicial propriety.
The current reference also revisits long standing constitutional questions, including whether decisions of governors and the President under Articles 200 and 201 can be judicially reviewed before a law takes effect; whether timelines can be imposed on constitutional functionaries; whether Article 361 immunity shields these offices from judicial direction; and whether disputes of this nature should be addressed under Article 131, which governs state-Union conflicts.
Multiple precedents constrain what the court can do in its advisory role.
In the Kerala Education Bill case (1957), the apex court held that it cannot expand the scope of a reference. In the Cauvery reference (1992), it was made clear that Article 143 cannot be used to revisit judicial decisions. Advisory opinions do not have the force of binding law, though they typically command great political and constitutional weight.
Source: HindustanTimes
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