#presidentialreference

The recent Presidential reference to the Supreme Court (SC) regarding the deadlines for the President and Governors in clearing state bills has sparked significant political debate. Tamil Nadu Chief Minister MK Stalin has been vocal in his opposition, announcing plans to discuss the issue with fellow state leaders to form a united front against such references.

President Droupadi Murmu, under the powers granted by Article 143(1) of the Indian Constitution, has sought clarity from the Supreme Court on whether judicial orders could impose timelines on the President and Governors for clearing state bills. While Presidential references to the SC are rare, there have been at least 15 instances in the past 75 years where such references were made, each impacting crucial constitutional matters.

The last Presidential reference took place in 2016, when then-President Pranab Mukherjee sought the SC’s opinion on the imposition of President's Rule in Uttarakhand. Other instances have involved questions about the constitutionality of laws, bills presented for Presidential assent, inter-state water disputes, and the interpretation of constitutional provisions related to the election of the President.

Although advisory opinions from the Supreme Court under Article 143 are not legally binding, they carry considerable weight in shaping the political and legal landscape of the country.

Among the references made to the SC, three are notably connected to Tamil Nadu’s political history. Two were directly related to Tamil Nadu, while one was referenced to reaffirm the demand for the retrieval of Katchatheevu Island from Sri Lanka.

In 1959, the President referred to the SC over the ceding of Berubari Union to Pakistan as part of an agreement signed between then-Prime Minister Jawaharlal Nehru and Pakistani PM Feroz Khan Noon. The Supreme Court’s advisory opinion led to the decision that Berubari would remain an integral part of India, with the matter ultimately being resolved without ceding the territory.

In 2008, former Tamil Nadu Chief Minister J. Jayalalithaa invoked the Berubari precedent in her writ petition challenging the constitutionality of the 1974 and 1976 agreements that ceded Katchatheevu Island to Sri Lanka. She argued that such a transfer of Indian territory required a constitutional amendment under Article 368, a stance that continues to be debated in the SC after more than 16 years.

In 1991, President R. Venkataraman referred the Cauvery water dispute to the SC, triggered by Karnataka’s violation of the Cauvery Water Disputes Tribunal’s interim order with the introduction of the Karnataka Cauvery Basin Irrigation Protection Ordinance. The SC declared the ordinance unconstitutional, reinforcing Tamil Nadu’s legal position on the issue.

Another significant reference occurred in 2012, when President Pratibha Patil sought the SC’s opinion on the 2G spectrum case, which had resulted in the cancellation of 122 licences and mandated auctions. The five-judge bench ruled that while auctions were not constitutionally mandatory, the directive in the 2G case was specific to the flawed policy in question.

In 1994, President Shankar Dayal Sharma had sought the SC’s opinion on whether a Hindu temple or any religious structure existed at the site of the Ram Janmabhoomi-Babri Masjid. The SC declined to address the issue, setting a precedent for the Court's reluctance to intervene in religious matters.

The most recent reference, made by President Murmu, follows the Supreme Court’s April 8 verdict concerning the governor's powers in relation to state bills challenged by the Tamil Nadu government. This reference has brought the spotlight back to the evolving role of the President and Governors in legislative matters and their relationship with the judiciary.

Iftikhar’s image transformed from ‘a judge turned national cause’, as noted in NYTimes on July 28, 2007, to the politician ‘pursuing personal agenda’

On March 9, 2007, Chief Justice Iftikhar Chaudhry was suspended by the Musharraf government in a ham-fisted manner resulting in a full-blown judicial crisis and Lawyers Movement. It laid the foundational brick for judicial activism which resurged with a vengeance after Iftikhar’s restoration only reaching new heights under former CJP Mian Saqib Nisar. The events of March 9 were the small tremor that later grew into a massive wave of protests. Not only the legal fraternity, but the masses also took to streets. As mentioned in Harvard law Review study “The Pakistani Lawyers’ Movement and the popular currency of Judicial Power” in May 2010, a thought ‘typical of Pakistanis at the time’ was what a farmer said in an interview: “I support the lawyers, because if Musharraf can do whatever he wants to this man, the Chief Justice of Pakistan, then none of us is safe.” This disposition reflected a symbolic articulation and understanding of struggle for independent judiciary. “Indeed, the Chief Justice was the closest to a personal embodiment of the law that one could find in Pakistan.”

However, the trail of events that occurred in Army House on March 9 is marred with conflicting reports from two parties: CJ himself and five military and agency chiefs. CJ had spilled the beans on what took place in Army House when he delineated that in addition to Musharraf, chiefs of MI and ISI had asked him to quit. He was harassed by the military leadership as according to CJP’s affidavit, he was confined for over five hours in a room, constantly told that he was ‘restrained to act as chief justice’ while his car was stripped of the flag.Furthermore, he was held in communicado at his residence, with all the communications with outside world cut off. In an interview to Tallat Hussain on Aaj TV (May 18), Musharraf termed this a matter of “tactical handling” by agencies.

On June 7, heads of two intelligence agencies and the president’s chief of staff filed affidavitsin the Supreme Courtagainst Chief Justice Iftikhar Mohammad Chaudhry, who had accused them of pressurizing him to resign.

in the affidavit by Chief of Staff, inter alia, he denied allegations by the chief justice about restraining him against his will, or cordoning off his house while pointing out that the meeting had been arranged after Iftikhar’s request. Further, responding to allegation of keeping his family members in communicado, the affidavit pointed out that “from 5 p.m. on 9 March 2007 till 13 March more than three hundred and fifty calls were made/received from/on the mobile phone of his son.” However, this contrasted with what Musharraf responded on the question of detention, in an interview to Kamran Khan of Geo TV: “Yes, I would like to tell that where he was living, we had a concern that there should be no media trail out of this and there is not politicization of this…”

In their affidavits, the heads of agencies, MI and IB, further claimed that the CJ kept regular contact with them and even suggested that parliament should be dissolved and fresh elections be held under him.

DG MI Major General Nadeem Ijaz highlighted in his six-page affidavit that "[h]e (Iftikhar Ch) was of the view that the President should dissolve the assemblies as they were becoming a nuisance and hold elections under the CJP." Curiously enough, the head of ISI, Pakistan’s premier counterintelligence and spy agency, did not submit a similar affidavit, raising suspicions that the judicial crisis involved hidden actors and vested interests. “…No one made any threat. The CJP having clearly informed the President and the Prime Minister that he would face the reference, the question of anyone of us making any demands of any kind on the CJP simply did not arise," the Intelligence Bureau head said. The Affidavit submitted by chief of Military Intelligence (MI) alleged that “the CJ used to remain in touch with the officer in-charge of the Military Intelligence, Lahore, and used to task him on a regular basis to provide information about judges in Punjab to build a database for his own reference.”