John Milton seems to have foreseen four centuries ago how our law-makers and law judges would behave. He gave us the word ‘pandemonium’, which we have been using freely for describing disorder in Parliament. Now with its answer to a presidential reference last week, the Supreme Court has shown us what the blind poet meant by ‘confusion worse confounded’.
First, the facts of the case. There used to be a problem with Articles 200 and 201 in the Constitution. The articles say a bill passed by a legislature becomes law only after the governor or the president okays it. If a guv thinks a bill is flawed, he may return it to the house or refer it to the president. But the articles don’t set a deadline for any of these actions. Governors who didn’t like their governments, or the bills presented to them, have been making use of this silence of the statute to keep bills pending. Media Miltons of the modern world called it pocket veto.
Finally, the Tamil Nadu regime of M.K. Stalin, fed up with Governor R.N. Ravi pocket-vetoing bill after bill, went to court asking the judges to set a deadline for governors to sign on the dotted line, return the bill to the house, or send it to the president. Last April, a two-judge bench said that the governor should do one of the three things within three months; if he doesn’t, the bill would be deemed to have got his assent.
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Many felt that the judges had exceeded their limits and had written into the Constitution, something forbidden. The judges said they were invoking Article 142 that gave them the power to innovate the law so that “complete justice” got done. But the Union government, peeved with the judgment, got the president to send the matter again to court, this time as a reference seeking advisory opinion.
A five-judge bench headed by the outgoing CJI B.R. Gavai gave its opinion last week. They said their two brothers had erred in the April judgment, and that the court can’t give deadlines to the president or the governor.
Where’s the confusion, you may ask. Haven’t the five judges restored status quo ante-April? No; therein lies Milton’s confounded confusion.
What the two judges delivered in April was a binding judgment, applicable to the whole of India till a larger bench nullified it. Now the larger bench of five hasn’t nullified it; it has delivered only an opinion which has persuasive value, but isn’t yet the law of the land. Yet governors could argue that since the November advice came from a larger bench, it should get a higher weightage than the April judgment.
Now you wait for the fun. Several Stalins, aggrieved by their pocket-vetoing governors, would seek to notify pocket-vetoed laws citing the April order. Several Ravis, drawing strength from the November opinion, would cry foul. Classic cases of confusion worse confounded.
What else could the five judges have done, you may ask. After all, it was the president who asked them to give their opinion under Article 143. Simple! Citing that there was already a binding judgment given by their brothers in April, the five could have respectfully returned the reference unanswered, as their illustrious predecessors in M.N. Venkatachaliah’s court had done to the reference on the Babri Masjid-Ram Janmabhoomi dispute in 1994. They could also have told the government to seek a review of the April order or even seek a constitutional bench to give the final word.
They did nothing of the kind. Instead they wrote a 100-odd page opinion which did nothing new except call the Constitution swadeshi.
prasannan@theweek.in