One month after the Supreme Court’s important judgement in the Tamil Nadu Bills case, President Droupadi Murmu has asked the court to clarify the powers and role of governors in approving state laws. She sent this request to the Supreme Court under Article 143 of the Constitution, which lets the president seek legal advice from the court on important issues.

The president's move came after the Supreme Court ruled that governors and the president must clear state bills within a fixed time. In April, the court called Tamil Nadu Governor RN Ravi’s decision to block 10 bills “illegal and arbitrary”. It gave a three-month deadline for the bills to be cleared after being passed a second time by the state legislature.

Now, President Murmu wants clarity on how much freedom governors have while taking decisions on state laws. “Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available to him when a bill is presented before him under Article 200 of the Constitution of India?” the President asked the Supreme Court.

She also asked, “In the absence of a constitutionally prescribed timeline and the 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 of the Constitution of India?”

Can courts question the governor’s decisions?

Another key question raised by President Murmu is whether courts can review a governor’s use of power. She pointed out that Article 361 of the Constitution says that the president and governors cannot be taken to court for their official actions. “Is the Governor’s exercise of constitutional discretion justiciable?” she asked, meaning: can the Governor’s actions be challenged in court?

This comes after a Supreme Court bench of Justices JB Pardiwala and R Mahadevan made strong observations about the role of governors. The court said that if a bill is passed a second time by the state assembly, the governor cannot keep delaying it. It also said that when a bill is based on serious constitutional questions, the president should seek the court’s advice under Article 143.

The court explained, “It is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such questions to the Supreme Court under Article 143. We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill, and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill.”

The court also reminded that while its opinion under Article 143 is not binding, it still matters greatly in law. “However, merely because the jurisdiction under Article 143 is not binding does not undermine the principles used by this court to determine the constitutionality of the bill,” the court had said.

Will a bigger bench be formed now?

Now, it is up to the Supreme Court to decide whether to form a Constitution Bench (with more than five judges) to answer the questions raised by the president or to stand by its earlier judgement given by two judges. This development is especially important now as the country has a new Chief Justice of India — Justice BR Gavai — who took oath just a day before the President’s letter became public.

The Supreme Court had also said in its Tamil Nadu case ruling that in rare situations, a governor may refer a bill to the president. “However, in certain exceptional circumstances, the Governor may reserve a bill for consideration of the President on grounds that the bill is perilous to the principles of democracy and an interpretation of the Constitution is necessary to ascertain whether such legislation should be granted assent or not.”

But even in such cases, the executive (the government) must be careful. “In such cases where a bill has been reserved majorly on the grounds of not being in consonance with the constitutional principles and involves questions of constitutional validity, the executive is supposed to exercise restraint,” the court had said.

The judgement also said that if the president rejects a bill against the Supreme Court’s advice, “he must record cogent reasons and materials that justify not granting assent.”

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