NEW DELHI: The Centre did not have to labour to persuade a five-judge bench of the Supreme Court on Thursday to recognise an apparent constitutional fallacy in the two-judge bench's April 8 virtual directive to the President to seek SC's opinion on constitutional validity of a bill reserved for her consideration by a governor.
The constitution bench of CJI B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar appeared convinced by solicitor general Tushar Mehta's argument that the two-judge bench could not have used SC's Article 142 powers to step into the governor's shoes and grant deemed assent to 10 bills of Tamil Nadu.
"These two directions - the President to seek opinion of SC and deemed assent - are fundamentally flawed and unconstitutional," Mehta said. SC fallaciously assumed that the President, the highest constitutional authority of India, lacks ability or wherewithal to ascertain constitutional validity of bills, which have been passed by an assembly but reserved for her consideration by the governor, he argued.
CJI Gavai responded to his argument about such directions being hazardous for the stone-carved constitutional doctrine of separation of powers by saying, "If all the bills reserved for the President's consideration become part of Presidential Reference, SC will do no other judicial work except giving advisory opinions as each Reference has to be addressed by a bench of minimum five judges."
A bench of Justices J B Pardiwala and R Mahadevan had on Apr 9 said whenever a bill is reserved for the President's consideration on the ground of its patent unconstitutionality, "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 powers under Article 143 of the Constitution (and seek SC's opinion)".
Mehta told the bench to take example of a case where the President obtains such opinion from SC on the constitutional validity of a bill and grants assent. With bill thus becoming an Act, as in the case of the Tamil Nadu bills which have been published in the gazette mentioning that SC has granted deemed assent, how would an HC or SC adjudicate its validity given the fact that it has become a law after the SC had already vetted its constitutionally validity?
Steering clear of the maze of consequential constitutional complications that would emerge if SC engaged in pre-law stage vetting of validity of bills, the CJI said, "Whether the President would seek advisory opinion of SC under Article 143 is her sole prerogative."
Mehta said Article 142 powers, exclusively given to SC to do complete justice by acting within the constitutional and statutory parameters, cannot be used to assume the role of another coordinate constitutional authority like governor. He said the Constitution wherever needed has provided the 'deemed' provision, and hence, it prohibits SC from reading in 'deemed assent' provision into the Constitution using the powers it enjoys under Article 142.
On the President's last question - whether states could invoke Article 32 right to directly move SC seeking a mandamus to governor, Mehta said any federal dispute involving Centre and state(s); or state(s) and state(s), must be resolved politically or in the alternative, a suit under Article 131 can be filed in SC.
However, he said he would take instructions from the President, whether she would still press for an opinion from SC on this issue and inform the bench on Tuesday.
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