NEW DELHI: The Union government has objected to a Supreme Court judgment that effectively required the President to seek the court’s opinion on the constitutionality of bills, arguing that such a mandate undermines the President’s discretionary powers under the Constitution.
In a submission ahead of Tuesday’s hearing before a five-judge bench led by CJI B R Gavai, solicitor general Tushar Mehta said the April 8 ruling by justices J B Pardiwala and R Mahadevan was flawed. The Centre maintained that Article 143 vests “absolute discretion” in the President to decide whether to consult the court, stressing that “the judiciary cannot dictate to the President how and when to exercise this discretion or on what issues.”
The SC bench had earlier advised that whenever a governor reserves a bill for the President’s consideration on grounds of unconstitutionality, the President should, “as a measure of prudence,” refer the matter to the Supreme Court under Article 143.
Rejecting this proposition, the Centre advanced three arguments:
- Articles 200 and 201 empower the President to apply her own mind to assent or withhold assent to bills, with no role assigned to the SC under Article 143.
- The Constitution envisages that the legislature, executive and judiciary each interpret constitutional provisions within their respective domains; the legislature debates a bill’s constitutionality, the President or governor decides on assent, and courts examine enacted laws.
- Converting this presidential prerogative into a judicial mandate amounts to a “continuing mandamus,” which is constitutionally impermissible.
The Centre also argued that constitutional courts cannot examine the contents of bills pending before the governor or the President, as they are not yet law. It further contended that states cannot file petitions under Article 32, which is reserved for citizens seeking relief for fundamental rights violations. Disputes between states and the Centre, it said, must be brought under Article 131.
“A state government cannot file a petition under Article 32 of the Constitution against essentially the governor of the state,” the Centre told the court.
