Issues related to federalism raised under Presidential reference: Sidharth Luthra

The Presidential reference made under Article 143 of the Constitution has thrown up the question: Can a Governor or the President sit over a legislation, and can it render governance null and void? said Luthra.

"The issue here is not just about the powers of the President, the Governor, the Centre and the State. It's a federalism issue," he said.

The constitutional expert said the question that needs to be answered is: Can the authorities stop the right of a citizen to good governance?

There's also the issue of how we are going to deal with the rights of the citizens to have governance. "After all, citizens elect their representative, MPs and the party in power. The citizen expects governance from them. A part of governance is the making of laws, and if a Governor sits over a bill, are we not denying citizens of governance?" he said.

Luthra said the principle of separation of powers and the scope of the Supreme Court's power under Article 142 are the other key issues that the Constitution Bench will now have to decide under President Murmu's reference that has invoked the top court's advisory jurisdiction.

Pointing to a similar reference made after the 2G spectrum auction, Luthra said, "The current reference is not covered by the opinion given by the SC under its advisory jurisdiction in the previous case."

After the 2G airwave allocation was struck down by the SC, the government at that time, under reference, had sought the top court's views on the way forward and get a sense about the powers of the Centre, he said.

Luthra said the current reference made by the President is significant due to the underlined issues that it raises.

"Please don't just look at the questions that have been raised, but the underlined issues raised. The scope of the powers of the Supreme Court under Article 142 has also been raised," he said.

"This reference, to my mind, is to determine what the way is going forward and to what extent the Supreme Court directs governments, Governors and the President to act and to the extent that they will determine and sit over the jurisdiction of Governors and the President," he said.

The constitution expert said, "Do keep in mind that the decisions of Governors and the President, in the context of remission, have already been made justiciable on very narrow parameters."

Article 142 of the Constitution grants the Supreme Court the power to pass any order necessary for doing complete justice in any case or matter pending before it.

In the aftermath of the Supreme Court verdict in the Tamil Nadu Bills case, President Murmu, in a reference made under Article 143 of the Constitution, has asked the top court to consider whether timelines can be imposed on Governors to act on Bills in the absence of a constitutionally prescribed time limit.