Ahead of next year's Tamil Nadu assembly elections, the politics, if any, surrounding the presidential reference, may define the course of rival campaigns.
So could be the Supreme Court's opinion offered to the President, observes N Sathiya Moorthy.
Operation Sindoor may have stolen some of the limelight that was otherwise due the Presidential reference to the Supreme Court on the timelines for Rashtrapati Bhavan and Raj Bhavans to decide on legislation presented to them for assent.
While the intention of President Draupadi Murmu's 14 queries for elucidating the Supreme Court's opinion/clarification under Article 143 of the Constitution is clear, it may be interesting to note that the two-judge bench that decided the matter had derived its conclusions from two Union home ministry circulars as far back as 2016.
Both circulars were issued on February 4, 2016. Both fixed the home ministry as the nodal agency for collating and coordinating with multiple departments of the Centre or with the state governments concerned in such matters.
One pertains to internal consultations and disposal of legislation passed by state legislatures for presidential assent.
The other relates to communication with state governments, urging them to revert with details that are sought after a first round of communication within central ministries, including the law ministry, which would also go into the drafting of those Bills, including the language.
The purpose of both circulars, to quote the same, was to 'avoid inordinate delay' in decision-making, pertaining to the President and/or the governors on legislation pending before them for assent.
Breaking up timelines at every stage in both cases, the home ministry circulars had fixed a three-month upper limit for the final disposal of those Bills by the Union ministries/departments concerned, for the home ministry as the nodal agency to forward the same to the President.
It is these two circulars that the Supreme Court Bench, comprising Justices J B Pardiwala and R Mahadevan, cited while fixing a three-month deadline for the President/state governor(s) to clear Bills that are presented before them for assent.
After reproducing the two circulars, the judgment in the 'Tamil Nadu Governor Assent case', clearly noted (Paragraphs 383-391) that the President/governor(s) should communicate their decisions to the state government concerned within three months.
Yes, there is still the larger question if the Union home ministry's circular for internal consumption or for use by other arms under the Constitution that fell below the two gubernatorial offices would apply to the President and governors.
After all, both are Constitutional authorities. Governments in the country are run in their name(s) and with them as heads, at least in the eyes of the law and the Constitution.
Hence, there may be arguments that such timelines would not apply to those holding the nation's high office(s), especially when the Founding Fathers in their wisdom had refrained from doing so, after much deliberation.
It is here that the division bench verdict seems to have derived its intention from the spirit of the two circulars, whose aim was to ensure speedy and timely disposal of Bills presented before the President/governor for assent.
Incidentally, when the two circulars went out there were not many justiciable issues like the Tamil Nadu governor's case before the Supreme Court.
Nowhere has the verdict even remotely hinted at any automatic assent for Bills presented before either beyond a certain time-limit -- three months in this case, as Justices Pardiwala and Mahadevan fixed for future reference.
What, however, makes the verdict in the Tamil Nadu case the subject matter of further judicial discourse is the order, conferring 'deemed assent' to 10 TN legislations pending before the governor for much longer periods, with no action whatsoever -- assent, denial or reference-back.
Incidentally, there were matters where the state assembly had re-enacted legislation after Governor R N Ravi had returned them for 'reconsideration'.
The Constitution is clear that the governor 'shall abide by the aid and advice of the council of ministers headed by the chief minister'.
It has also laid down that the governor has to grant asset to a Bill if after 'reconsideration' that he had sought, the state legislature passes the same, with or without amendments.
Now, the presidential reference has a question, seeking the apex court's clarification if the governor had 'discretion' in matters such as those involved in the case(s) concerned.
As was to be expected, the President's 14-point reference query to the Supreme Court clearly questions the division bench deploying powers under Article 142, confer judicial assent to 10 Bills passed by the Tamil Nadu state assembly, for which assent was delayed without even being denied by the gubernatorial authority, which alone had such powers under the Constitution.
Incidentally, Article 142 under which the division bench passed those orders and Article 143, the use of which has facilitated the presidential reference, are schematically placed one after the other.
If the Founding Fathers wanted to place an unsaid message for the authorities concerned, the question arises as to who should be, or should have been circumspect -- or, more circumspect than the other.
In recent times, it had used the law to grant freedom for the 'Rajiv Gandhi assassins' following the inordinate delay in the President/governor deciding on their 'mercy petitions'.
The Supreme Court's verdict in the 'Ayodhya case' also was passed under Article 142.
As may be noted, this was/is the first time that the Supreme Court had used Article 142 powers to direct the gubernatorial authority to do or not to do a thing, by way of a writ.
Instead, the court has clearly 'usurped' the power/right exclusively available only to the gubernatorial authority under the Constitution.
It may be mentioned during the course of the Supreme Court hearing in the Reference matter, but the fact remains that the Constitution has not conferred such powers on any other constitutional authority, starting with the Supreme Court, which in common parlance is the 'watchdog of the Constitution'.
Then, there is the Presidential query if the two-judge bench should have referred the matter to a Constitutional Bench of five or more Judges.
A valid query, which possibly should not have waited for a presidential reference in the first place.
According to reports, the same objection was raised even before the division bench, which however turned down the submission at the first instance.
It was thus incumbent upon either the Union of India or the governor to have 'mentioned' it before the first bench, presided over by the Chief Justice, for his decision on sending the matter to a larger bench -- but no decision was taken on this question, either.
Yet, there is no denying the question, based on the facts and the circumstances of the case, if the court should have passed orders binding on the President without serving notice and obtaining a response. Or, if the court should have sought the President's views, through her secretary, on the reasons for the delay on Bills forwarded by Governor Ravi.
This goes beyond the Constitutional authority vested in the high office of the President, and is a part of the 'natural justice' process that courts in this country are bound to. But this is not one of the 14 points on which the Presidential reference has been made. Being a procedural issue, maybe, it may be agitated during the course of the hearing.
Politically otherwise, Tamil Nadu's DMK Chief Minister M K Stalin lost no time in criticising the BJP government at the Centre for using the Article 143 provision after the Supreme Court had given its verdict in cases that were pending before the governor, far too long.
He seemed wanting to fix the responsibility on the governor's actions and inactions, comments and criticism against the DMK state government, and also the larger Dravidian socio-political platform, laid at the door of Prime Minister Narendra Modi, his party and the government.
It is another matter that Stalin might have put the cart before the horse, by writing to other non-BJP chief ministers to strategise together, to challenge the Centre's decision on the Presidential reference after condemning the move himself.
After the non-BJP chief ministers' meeting on delimitation that he had hosted in Chennai on March 22, the expectation was that on all matters pertaining to Centre-state relations, there would be mutual consultations before any of them took an initiatively, separately or collective.
It thus remains to be seen as and when the second meeting of the Joint Action Committee on Delimitation (JAC) meets in Hyderabad, hosted by Telangana's Congress Chief Minister Revanth Reddy, the question of Stalin supposedly jumping the gun on common federalism-related issues would be flagged, formally or otherwise.
However, there is no talk in the Opposition corridors about the convening of the second meeting of the JAC as yet.
It is also still debatable/contestable if the chief minister, who is among the long-serving politicians in the country, should have 'politicised' the high office of the President and the institution of 'presidential reference'.
Here again, the response seems to be that it was the ruling BJP that began it, and the ruling party in the state would be failing in its duty if it did not bring it to the notice of the people, early on.
The reasons may not be far to seek. Months ahead of the Jallikattu protests of mid-January 2017, the Centre was seen cocking a snook at Tamil Nadu and its people over the 'Cauvery water dispute'.
After having taken up the role of the enforcing authority and moderating force in the Cauvery water dispute and thus presenting its views before the Supreme Court whenever one of the aggrieved parties had a complaint against the other(s), the Modi Centre did a U-turn, and literally overnight.
On a day in October 2016, the Centre submitted before the Supreme Court that under the Inter-State River Water Disputes Act, the higher judiciary did not have powers under the law once a matter like the Cauvery water issue had been referred to a tribunal, constituted by the Centre.
It was exactly the opposite of what the Centre had implied through its submissions/arguments until the previous day -- and literally so. The whole of Tamil Nadu was enraged.
The people were also convinced that the Centre's U-turn owed to the Karnataka state assembly elections that were due one-and-a-half year later, in May 2018.
It was the trigger-point for a new generation of Tamil youth, who were distanced from the past of their parental and grandparental generation, and were gainfully employed in the high-paying IT-ITES in urban centres like Chennai and those outside the state and country.
They felt cheated and saw the Centre's U-turn on their face. They could now relate to the past 'insults' by the then Congress Centre on 'Hindi imposition', Centre-state relations, etc.
The Jallikattu protest was born without any aid or assistance of any political parties, which was not the case with the anti-Hindi agitations of the mid-sixties.
If anything, the faceless protest leaders who gathered over a million people effortlessly on the beach sands of Chennai's Marina for days in a row, just through SMS messages, would not allow any politician to be seen in the crowd. However, lower-level politicians did participate in the protests that spread to every town and village within the first couple of days.
Now, thus, ahead of the Tamil Nadu assembly elections next year, the politics, if any, surrounding the presidential reference, may define the course of rival campaigns in the weeks and months to come -- though it may not be the only clincher.
So could be the Supreme Court's opinion offered to the President after long hearings.
Customarily, the views of states and other interested parties are also obtained and some of their counsel are also allowed personal submissions, intervention and participation.
Of course, the attorney general as a Constitutional authority and counsel for the Union of India, and occasionally that of the President's Office, are also invariably parties to the court proceedings, either on their own behalf or representing central authorities concerned.
N Sathiya Moorthy, veteran journalist and author, is a Chennai-based policy analyst and political commentator.
Feature Presentation: Rajesh Alva/Rediff
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