Kumar Bahukhandi
President Murmu raised questions on the decision of the Supreme Court – Photo: PTI
The Supreme Court’s decision in the Tamil Nadu Governor’s case is wrong in many ways. Keeping the bills pending can be an issue, but interpreting provisions which are not there in the Constitution and making new provisions is a big mistake. The President’s 14 questions show that one wrong cannot be corrected by another wrong.
The new Chief Justice of the Supreme Court, BR Gavai, has inherited three major challenges in his brief tenure of six months. The burden of five crore pending cases, reforms in the collegium and a mechanism to deal with corruption of judges. Last month, the Supreme Court had given a decision for the timely approval of the Governor and the President on the bills passed by the Tamil Nadu Assembly. Two judges had approved the bills without the permission of the Governor using the extraordinary powers of Article 142 of the Constitution. The Vice President had described the use of 142 as dangerous as a nuclear missile. Now the Central Government has presented a big challenge to the new Chief Justice by sending a reference of 14 questions under Article 143 through the President.
According to the rules of the Supreme Court, the Central Government should file a review petition in such cases. Therefore, the Supreme Court can refuse to give its opinion without going into the merits of the questions. The Supreme Court gave its opinion in the first important case under Article 143, ‘Delhi Laws Act-1951’. The Supreme Court gave its opinion on the Kerala Education Bill-1957 by interpreting the reference constitutionally. But on the reference of the Narasimha Rao government on the Ram Mandir dispute in Ayodhya, the Supreme Court said that giving opinion in matters related to historical and mythological facts does not come under the purview of Article 143. In the year 1993, the Supreme Court also refused to give its opinion on the Cauvery water dispute reference. In the year 2002, in the case of Gujarat elections, the Supreme Court said that the option of sending a reference through 143 instead of filing an appeal or a review petition is constitutionally wrong. Former Chief Justice YV Chandrachud had said that it is constitutionally strange that the opinion on the reference is not binding like the decisions of the Supreme Court.
Some aspects related to the Governor’s case are similar to the reference of the UPA government in the 2-G case. The Supreme Court had canceled the 2-G licenses and spectrum allocation of 122 firms and companies. The central government, while sending a reference against that decision, had asked whether the Supreme Court should interfere in policy matters? According to the decision of the Constitution Bench in the Kesavananda Bharati case, in the year 2006, a bench of three judges in the Indore Municipal Corporation case had given the decision that the courts should not interfere in the decisions of the Parliament and the Central Government in policy matters.
The decision of the Supreme Court in the Governor’s case is wrong in many ways. In such a case, the hearing should be done in front of five judges of the Constitution Bench instead of two judges. In his retirement speech, Chief Justice Sanjeev Khanna said that long and complicated petitions are a hindrance to speedy and correct justice. Heavy judgments being written with the help of internet research and law clerks should also be stopped. In the Tamil Nadu case, the judges analysed the constitutional system of Europe, America, Australia, Fiji and Pakistan, which is irrelevant as well as wrong.
There is no mention in the Constitution about how many days a bill will remain pending with the President or the Governor. The Supreme Court made new provisions by interpreting the provisions that are not there in the Constitution. According to the Kesavananda Bharati judgment, the Supreme Court does not have the power to make laws or amend the Constitution. Judges have been given the role of guardians to correct the mistakes of the government. In such a situation, one wrong cannot be corrected by another wrong. If the government does wrong, the public can register protest in the elections, but if the judiciary starts encroaching the Constitution, then it can become an incurable disease.
If the existing provisions are not sufficient or are vague, then the Supreme Court has been given the special power to do complete justice through Article 142 to ensure justice. Dr. Ambedkar supported this article in the Constituent Assembly and called it a safety valve. Under this, if needed, the Supreme Court can give orders to the President i.e. the Central Government, but the Supreme Court does not have the right to work like the President or the Governor. Suppose, the recommendation for appointment of a judge is pending, then the Supreme Court cannot say that since the recommendation is pending, we make the appointment without the President’s approval. According to Article 141, the decisions of the Supreme Court are binding on all courts. Therefore, the system of timely decision of the Governor needs to be implemented in all courts, so that people suffering from five crore cases can get timely justice.
Dr. Ambedkar had said, ‘The success of the Constitution will depend on the conduct and prudent behavior of the people who run it.’ The 14 questions asked in the reference highlight the shortcomings of the government’s functioning along with the Supreme Court’s decision. The Supreme Court’s decision shows that in opposition-ruled states, governors are working as obstructionist machinery rather than advisors. Former Tamil Nadu Chief Minister Karunanidhi had formed a committee on centre-state relations. On the same lines, now the Stalin government has announced the formation of a committee under the chairmanship of a former judge. Therefore, to strengthen federal unity, efforts should be made to improve government functioning according to the spirit of public welfare in the Constitution.
This reference can start a serious debate on centre-state relations, federal system, hearing in the constitutional bench, governor’s rights, judicial review and misuse of Article 142. The Supreme Court can use the special powers of 142 to correct the mistakes of the Parliament and the government as well as to provide justice to the common people and institutional reforms in the judiciary. Under this, some cases can be like formation of All India Judicial Service, release of poor and innocent prisoners, declaration of assets of all judges, dismissal of corrupt judges without impeachment. If the debate on the President’s reference leads to a historic beginning of reforms in the judiciary as well, then the celebration of 75 years of the Constitution will be more successful.
