The Constitution Bench of the Supreme Court, currently examining the Presidential Reference on timelines for gubernatorial and presidential assent to Bills, clarified on Tuesday (August 19) that it is exercising only its advisory jurisdiction under Article 143 of the Constitution, and not sitting in appeal over the recent Tamil Nadu Governor case ruling.
Chief Justice of India BR Gavai, heading the Bench, emphasized that the Court’s task is limited to offering its legal opinion to the President. “We are not reviewing or sitting in appeal over the Tamil Nadu judgment. We will only be expressing a view of the law,” he stated. Justice Surya Kant added that while Article 143 empowers the Court to clarify whether an earlier judgment lays down the correct law, it does not authorize overruling of past decisions.
The five-judge Bench, also comprising Justice Vikram Nath, Justice PS Narasimha, and Justice A Chandurkar, first heard preliminary objections raised by Senior Advocates KK Venugopal (for Kerala) and Dr Abhishek Manu Singhvi (for Tamil Nadu). Both argued that the Presidential Reference is not maintainable since the questions raised had already been conclusively answered by the two-judge Bench in the Tamil Nadu Governor case. They contended that Article 143 cannot be invoked as a substitute for appeal or review.
Venugopal relied on precedents, including the Cauvery Reference and 2G Reference, to argue that advisory opinions cannot reopen issues already decided by binding judgments under Article 141. He also maintained that the Reference, though formally by the President, is effectively one by the Union Government, acting through the Council of Ministers.
Dr Singhvi supported this objection, stressing that Article 143 cannot function as an intra-court appeal. While acknowledging that the 2G Reference allowed limited clarification of earlier rulings, Singhvi submitted that the present case was different since the “law and the decision are inseparably fused” in the Tamil Nadu ruling. Allowing the Reference, he cautioned, could lead to conflicting legal positions, one applicable to Tamil Nadu and another for the rest of the country.
On the other hand, Attorney General R. Venkataramani, supporting the maintainability of the Reference, argued that the present situation was “sui generis”, arising from conflicting decisions delivered by Benches of varying strengths. He pointed out that he had sought a larger Bench reference during the Tamil Nadu case itself, which was not considered. He urged that Article 143 allows the Court to examine past rulings when constitutional disharmony arises.
Solicitor General Tushar Mehta reinforced this view, contending that there is no jurisdictional bar on revisiting earlier judgments in advisory jurisdiction, rather, it is a self-imposed restraint, which can be relaxed when larger constitutional issues are at stake. Senior Advocates Harish Salve, Neeraj Kishan Kaul, and Maninder Singh also spoke in support of the maintainability of the Reference.
After hearing the objections, the Bench proceeded to hear the Attorney General on the merits of the Reference. The matter is expected to involve significant clarifications on the constitutional role of Governors and the President in granting assent to Bills and the scope of Article 143 advisory jurisdiction.
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