Presidential Reference to SC can help redraw boundaries between institutions

Indian Express

11 hours ago

The upcoming hearing in the Supreme Court of the Presidential Reference arising from the Court's judgment in The State of Tamil Nadu vs The Governor of Tamil Nadu (2025) is of seminal constitutional significance. This is because of the perceived encroachment of the states' defined sovereign functions and the troubling non-observance of conventional discipline in the exercise of high constitutional power. The Court's advisory opinion, though not binding, will have significant persuasive value for the exercise of sovereign power by the states and the central government in the future.
In its adjudicatory decision, the Court has indicted the Tamil Nadu Governor for withholding assent for an unreasonably long time to bills passed by the Legislative Assembly. It held that his conduct was unconstitutional and it was permissible for the Court to read into the silences of the Constitution an implicit obligation on the Governor's part to exercise constitutional discretion reasonably and impartially. Relying on government circulars, the Court held that decisions by the Governor and the President concerning assent to bills are required to be taken within three months of the date of receipt of the government's recommendation for assent.
The judgment is unexceptionable for its constitutional logic as far as the Governor's conduct is concerned. However, the extension of the Court's reasoning to the exercise of presidential prerogatives and its suggestion to the President to seek the Court's advisory opinion 'when deciding on bills reserved by the Governor' is fraught and open to interrogation for judicial overreach. This is because the President's prerogatives were not directly in question before the Court and because the President's sovereign power operates in a different realm and on a different plane in our constitutional scheme. As the repository of the highest sovereign power, the President is entitled to the fullest presumption of regularity in the performance of constitutional duties, unaffected by the assumed possibility of an irregular exercise of power. Inspired by national imperatives generally not amenable to judicially manageable standards, the nature of the President's functions place the head of state in a unique position that does not warrant equivalence with the Governor, who holds office at the pleasure of the President as her representative in the state. It is not surprising, therefore, that in a clear disapproval of the Court's judgment, the President has sought the Court's advisory opinion on the key constitutional issues that emanate from its decision.
The core question raised in the Reference concerns the 'constitutional boundaries of executive and judicial authority', which are fundamental to the republic's constitutional arrangement. Pertinently, because the Court's advisory opinion cannot displace a binding judicial precedent, the Reference is seen as an opening for a review of the judgment or justification for a possible legislative initiative to insulate the President from the restraints imposed by the Court, should the advisory opinion be at variance with the ratio and reasoning in the Tamil Nadu case in so far as it relates to the President.
The Reference also seeks the Court's view on several specific and substantial questions of public importance. These include whether '… the judiciary can modify or override constitutional powers exercised by the President or Governor through Article 142', which confers upon the Supreme Court judicial power of the widest amplitude. Despite its internal coherence and unimpeachable logic in relation to the conduct of the Governor, the Court's decision can be questioned for its directions (cloaked as a suggestion) to the President to seek its advice under Article 143 on legal issues impinging on the legality of bills requiring presidential assent. This has been critiqued, not unreasonably, as an unwarranted judicial intervention in the exercise of sovereign discretion, not necessitated by the scope of the legal challenge that was limited to the conduct of the Governor of Tamil Nadu. This part of the judgment can also be faulted in view of the established processes of decision-making by the President, including those pertaining to legal counsel.
Judicial intervention in policy choices of the government/Parliament and in the exercise of sovereign power, unless palpably malafide, has raised questions about the balance of constitutional power. The necessity of restraint in the exercise of judicial power has been reiterated by the Court in the Tamil Nadu case itself, holding that [in] 'the exercise of self-imposed restraint… courts do not venture into areas of governance in which the Constitution gives a prerogative solely to the executive.' Chief Justice B R Gavai, in his recent address at the Oxford Union, is reported to have endorsed a balanced exercise of judicial power.
Judges, made wise by experience, disciplined by law and elevated by knowledge, are expected to weigh and balance competing values, a function central to their role. The nation trusts the sagacity of the highest court to configure a just constitutional equilibrium of power so that the country's democratic order is not held hostage to the unfettered impulses of any single branch of the Indian state. As the nation's conscience-keeper, the Court is expected to vindicate this trust by the consistency and moral integrity of its judgments and by guarding against the 'juridification of politics and politicisation of the judiciary'. We know that it is in the wisdom of the wise that enduring answers to some of the vexed questions of our time will be found.
The writer is senior advocate, Supreme Court and former Union Minister for Law and Justice. Views are personal