President, not SC, decides when to seek court's opinion: Centre

NEW DELHI: Objecting to the judgment mandating the President to seek Supreme Court's opinion on constitutionality of bills , Union govt has said the judiciary cannot dictate to the President how and when to exercise her unfettered discretion to seek the apex court's opinion and on which issues.

Faulting the April 8 judgment of a bench of justices J B Pardiwala and R Mahadevan, the Centre, through solicitor general Tushar Mehta, said a plain reading of the President's powers under Article 143 "shows that an absolute discretion lies with the President to seek advice. The term 'consult' means the act of asking for advice and indicates that the President is not bound to do so".

The judgment had advised the President that whenever a governor reserves a bill for her consideration on the ground that it is patently unconstitutional, the President ought to make a reference to SC under Article 143 "as a measure of prudence", given that it is for the apex court to determine the constitutionality and legality of orders and laws.

Ahead of Tuesday's hearing on the Presidential Reference before a five-judge bench led by CJI B R Gavai, the Centre said, "Any constitutional proposition of law that there exists a constitutional expectation for the President to refer every reserved bill to the Supreme Court is contrary to the constitutional scheme". It gave three reasons to repudiate the SC bench's proposition to this effect:

• Articles 200 and 201 envisage that the President will apply his/her own mind to decide whether to assent or withhold assent, and these provisions do not mention any role of Supreme Court under Article 143.
• Such a proposition presupposes that only the judiciary can decide questions related to the Constitution, whereas the Constitution contemplates that the legislature, the executive and the judiciary each is competent and authorised to interpret the Constitution within their own domain. The legislature considers the constitutionality of a bill during debate, the President or governor applies their mind while deciding whether to withhold, assent or refer a bill and the judiciary decides the legality of an Act in appropriate proceedings.
• Such a proposition converts a constitutional prerogative into a judicial mandate in the nature of a continuing mandamus, which is impermissible.

Union govt said the Constitution does not empower the judiciary to examine the contents of a bill that is yet to become a legislation, sans assent granted by a governor or the President. "The constitutional courts cannot undertake judicial adjudication over the contents of a pending bill. It is not possible for the constitutional courts to look behind the contents of the bill at a stage wherein it is a pending decision before the governor and adjudicate whether it requires a reference to the President or not," it said.

It further said a state is barred from filing petitions under Article 32, which is a preserve of citizens to seek redress of violations of their fundamental rights by directly approaching the SC. For any dispute between the state and the Centre, the parties concerned need to approach the SC through a suit under Article 131.

The Centre held, "A state govt cannot file a petition under Article 32 of the Constitution against essentially the governor of the state..."