The Supreme Court has answered 11 of the 14 questions President Droupadi Murmu asked in her presidential reference, returning the remaining three unanswered on the grounds of being irrelevant to the context.
Here are the questions and the answers:
Q1: What are the constitutional options before a governor when a bill is presented to him or her under Article 200 of the Constitution?
A: The governor has three constitutional options under Article 200 — to assent, reserve the bill for the consideration of the President, or withhold assent and return the bill to the legislature with comments.
The third option — to withhold assent and return with comments — is only available when it is not a money bill.
Q2: Is the governor bound by the aid and advice of the council of ministers while exercising all the available options?
A: The governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the council of ministers while exercising his or her functions under Article 200.
Q3: Is the exercise of constitutional discretion by the governor under Article 200 justiciable (subject to challenge in the courts)?
A: It is not justiciable. The court cannot enter into a merits review of the decision so taken. However, in glaring circumstances of inaction that is prolonged, unexplained and indefinite, the court can issue a limited mandamus for the governor to discharge his or her function under Article 200 within a reasonable time period, without making any observations on the merits of the exercise of the governor’s discretion.
Q4: Is Article 361 of the Constitution an absolute bar to judicial review of a governor’s actions under Article 200?
A: Article 361 is an absolute bar on judicial review in relation to personally subjecting the governor to judicial proceedings. However, it cannot be relied upon to negate the limited scope of judicial review that this court is empowered to exercise in situations of prolonged inaction by the governor under Article 200.
While the governor continues to enjoy personal immunity, the constitutional office of the governor is subject to the jurisdiction of this court.
Q5: In the absence of a constitutionally prescribed time limit (or) manner of exercise of the governor’s powers, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 by the governor?
A: In the absence of constitutionally prescribed time limits and the manner of exercise of power by the governor, it would not be appropriate for this court to judicially prescribe timelines for the exercise of powers under Article 200.
Q6: Is the exercise of constitutional discretion by the President under Article 201 of the Constitution justiciable?
A: For similar reasoning as with the governor, the President’s assent under Article 201 is not justiciable.
Q7: In the absence of a constitutionally prescribed timeline (or) manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201?
A: For the same reasons as indicated in the context of the governor under Article 200, it is clarified that the President, too, cannot be bound by judicially prescribed timelines in the discharge of functions under Article 201.
Q8: In the light of the constitutional scheme governing the powers of the President, is the President required to seek the advice of the Supreme Court by way of a reference under Article 143 of the Constitution and take the opinion of the Supreme Court when the governor reserves a bill for the President’s assent or otherwise?
A: In our constitutional scheme, the President is not required to seek advice of this court, by way of reference under Article 143, every time a governor reserves a bill for the President’s assent. The subjective satisfaction of the President is sufficient.
If there is a lack of clarity, or the President so requires advice of this court on a bill, it may be referred under Article 143, as it has been done on numerous previous occasions.
Q9: Are the decisions of the governor and the President under Article 200 and Article 201, respectively, justiciable at a stage anterior to the law coming into force? Is it permissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law?
A: The decisions of the governor and President under Articles 200 and 201, respectively, are not justiciable at a stage anterior to the law coming into force. It is impermissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law. Pertinently, discharge of its role under Article 143 does not constitute “judicial adjudication”.
Q10: Can the exercise of constitutional powers and the orders of/ by the President/ governor be substituted in any manner under Article 142 of the Constitution?
A: The exercise of constitutional powers and the orders of the President/ governor cannot be substituted in any manner under Article 142, and we hereby clarify that the Constitution, specifically Article 142 even, does not allow for the concept of “deemed assent” of bills.
Q11: Is a law made by the State legislature a law in force without the assent of the governor, granted under Article 200?
A: There is no question of a law made by the State legislature coming into force without the assent of the governor under Article 200. The governor’s legislative role under Article 200 cannot be supplanted by another constitutional authority.
Q12: In view of the proviso to Article 145(3) of the Constitution, is it not mandatory for any bench of this court to first decide whether the question involved in the proceedings before it is of a nature that involves substantial questions of law as to the interpretation of the Constitution, and refer it to a bench of a minimum of five judges?
A: Article 145(3) and the composition of benches in this court that hear cases of constitutional importance is irrelevant to the functional nature of this reference, and (the question) is returned unanswered.
Q13: Are the powers of the Supreme Court under Article 142 limited to matters of procedural law, or (do they) extend to issuing directions/ passing orders that are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
A: The powers under Article 142 (extraordinary powers of the Supreme Court) are overly broad, and (it’s) not possible to answer (this question) in a definitive manner. Our opinion on the scope of Article 142 in the context of the functions of the governor and President has already been answered as a part of Question 10.
Q14: Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union government and the state governments except by way of a suit under Article 131 of the Constitution?
A: This is also found to be irrelevant to the functional nature of the reference and hence is returned unanswered.