Article 143 of the Indian Constitution

 

Significance: GS II; Polity and Governance; Powers of President;

Why in the News?

President Droupadi Murmu recently, has used Article 143 to seek the Supreme Court’s advisory opinion on whether the Court can set deadlines for the President and Governors to act on Bills sent by state legislatures.

• This follows a recent SC’s ruling that fixed a 3 month deadline for such decisions and introduced the idea of ‘deemed consent’ if no action is taken within that period.
• The President’s reference includes 14 questions challenging the Court’s authority to impose these timelines, making this a rare and significant use of Article 143.

Background of the recent Case: The Supreme Court’s recent judgement addresses the dispute between Tamil Nadu Governor R N Ravi and the DMK government over delays in clearing state Bills. In order to prevent misuse or delay in the legislative process and ensure judicial scrutiny, the SC laid down a specific timeframe (3-months) for the Governor to act on Bills sent to them by the state legislatures. If not, it also asserted that the SC should have a role when a Governor reserves a Bill for the President citing possible unconstitutionality. SC also suggested that in such cases, the President "ought to" invoke Article 143 to seek the Court’s opinion. Article 143 of the Constitution empowers the President to seek the Supreme Court’s advisory opinion on significant questions of law or fact. The Court referred to the ‘In Re: The Special Courts Bill (1978) case to reinforce the idea that: Pre-enactment judicial review can help avoid legal challenges later. Constitutional courts are not barred from giving suggestions or opinions before a Bill becomes law. SPECIAL HIGHLIGHTS MADE BY SC: What is the nature of SC’s Opinion under Article 143? The Court acknowledged that its advisory opinion under Article 143 is not binding. However, it holds high persuasive value and should ordinarily be accepted by both the legislature and the executive. The non-binding nature does not undermine the Court’s reasoning or principles used to assess constitutionality. Why is Judicial Scrutiny required? According to the recent judgement, preventing patently unconstitutional Bills protects public resources. It respects the legislative process by encouraging a constitutional review before enactment. Most importantly, through the proper Consultation with the SC (via Article 143) helps address bias or mala fides in the Centre’s handling of reserved Bills. Secondly, the SC emphasized that seeking legal opinion under Article 143 is crucial, as - there is no mechanism at the state level for Governors to seek judicial advice on the constitutionality of Bills. The only route is for the Governor to reserve the Bill for the President, who then should invoke Article 143 to consult the Supreme Court. The Court clarified that it respects the executive's prerogative in cases such as: Whether the President should assent to a State law that is repugnant to a Central law under Article 254(2), which is a policy decision. ("political thicket" doctrine) Key Judicial Principles Addressed: Assent is Justiciable: Courts can review and, if necessary, compel the President or Governor to act if their refusal or delay is unconstitutional. The idea of “deemed assent” (where a bill is considered assented if no action is taken within a set period) is not part of the original constitutional scheme. No “Pocket Veto” or “Absolute Veto”: The Governor and President must act “as soon as possible” and cannot indefinitely delay or withhold assent without valid reasons. Checks and Balances: Judicial review ensures that the powers of the President and Governor are exercised within constitutional limits and are accountable to the rule of law. CASE STUDIES: Comparative Constitutional practices around the Globe: Sri Lanka: Article 154H allows the Governor to refer a Bill to the President, who must consult the Supreme Court on constitutional validity. If upheld, the Governor is bound to grant assent. Republic of Kiribati: Section 66 allows the Beretitenti (Head of State) to withhold assent only if the Bill is unconstitutional. If passed again, the only option is to refer it to the High Court or grant assent if found constitutional. Recommendations given by the Sarkaria Commission and the Punchhi Commission: They recommended that the President should seek the SC's opinion under Article 143 for Bills that appear patently unconstitutional. Article 201’s objective is also to safeguard democratic principles by ensuring judicial scrutiny before an unconstitutional law is enacted.

 

The presidential reference is not just about the April 8 ruling. It includes 14 legal questions-most related to the April 8 case, but some are about bigger issues. The last three questions focus on how the Supreme Court uses its special powers.

1. What constitutional choices are available to a Governor under Article 200?
2. Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200?
3. Is the exercise of constitutional discretion by the Governor under Article 200 justiciable?
4. Is Article 361 an absolute bar to judicial review in relation to the actions of a Governor under Article 200?
5. Is there any timeline prescribed in the Constitution for the exercise of powers by the Governor under Article 200?
6. Can the Supreme Court, in the exercise of its powers under Article 142 or otherwise, fix a timeline for the Governor to exercise powers under Article 200?
7. Is the concept of “deemed assent” by the Governor or President, in case of non-exercise of powers within a fixed timeline, consistent with the constitutional scheme?
8. Can the Supreme Court direct the President to act within a particular period on a Bill reserved for consideration under Article 201?
9. Is there any timeline prescribed in the Constitution for the President to act under Article 201?
10. Can the Supreme Court, in the exercise of its powers under Article 142 or otherwise, fix a timeline for the President to act under Article 201?
11. Is the concept of “deemed assent” by the President, in case of non-exercise of powers within a fixed timeline, consistent with the constitutional scheme?
12. Is it necessary for the Supreme Court, before issuing directions or orders of the nature in question, to first determine whether the case involves a substantial question of law as to the interpretation of the Constitution that requires reference to a larger Bench?

(This question asks whether the SC must first determine if a case involves a “substantive question of law” or requires “interpretation of the Constitution” that only a larger Bench can hear. This question essentially asks whether smaller Benches can hear such important matters.)

13. Are the powers of the Supreme Court under Article 142 limited to matters of procedural law, or do they extend to issuing directions or passing orders contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
14. Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and State Governments except by way of a suit under Article 131?

• • In its Cauvery Water Disputes Tribunal of 1991 opinion, the Court made it clear that Article 143 is not meant for the executive to seek a review or reversal of established Supreme Court judgments.

Conclusion:

By urging the President to seek SC’s opinion on constitutionality before assenting to a reserved Bill, the SC judgement sets a constitutional framework for handling Bills perceived as unconstitutional. At the same time, SC acknowledged its own limitations when the reference involves policy or politics.

 

PYQ Relevance: Prelims: Consider the following statements: 1) No criminal proceedings shall be instituted against the Governor of a State any court during his term of office. 2) The emoluments and allowances of the Governor of a State shall not be diminished during his term of office. Which of the statements given above is/are correct? 1 only 2 only Both 1 and 2 Neither 1 nor 2 Mains: Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (UPSC CSE 2022)

 

 

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