The legal fraternity was divided on whether the Presidential Reference to the Supreme Court on its order in the Tamil Nadu Governor case was merely a ploy by the Union government to “bypass” the normal legal process of challenging the Supreme Court verdict.
Tamil Nadu Chief Minister M.K. Stalin lashed out on Thursday (May 15, 2025) that the Reference was an attempt to subvert the constitutional position settled by the April 8 Supreme Court judgment and other judicial precedents.
Senior advocate Kapil Sibal agreed with the Chief Minister’s viewpoint that the Reference was a clandestine way to reverse the judgment by a two-judge Bench headed by Justice J.B. Pardiwala.
“If you do not like a Supreme Court judgment, you seek a review. If the review gets dismissed, you file a curative petition. That is the only way to set aside a Supreme Court judgment… What you are doing here is, by seeking a Reference, you are trying to get an opinion from the court as to whether the President is bound by a direction that you should decide on a Bill within a specific period of time. This is really bypassing the legal process available to them,” Mr. Sibal said.
Former Supreme Court judge, Justice Sanjay Kishan Kaul however said seeking a review of the judgment would not be decisive. Moreover, the power of the President to make a Reference cannot be taken away by the Supreme Court’s review or curative jurisdiction.
“A review, again, would be by the Bench of the same two judges who pronounced the judgment. Here, the President is saying there is a constitutional issue involved and needs an opinion from the court,” Justice Kaul said.
The former top court judge said he had “grave reservations” about the court’s use of Article 142 in the judgment. He said Article 142 was restricted to the parties – State of Tamil Nadu and the Tamil Nadu Governor – in the dispute, and cannot be used to issue directions against the President and other State Governors who were not part of the litigation.
Mr. Sibal argued that an opinion, whatever it may be, under a Presidential Reference was not binding. A judgment of the apex court, on the other hand, was binding on all. The judgment would prevail despite the opinion. He said the President was in her right to seek a Reference, but the Supreme Court need not answer it.
But Justice Kaul said an opinion from the Supreme Court, in his personal view, was “good enough”. It would end future conflicts.
“What else could have been done here other than seek a Reference, unless another Bench of two or three judges of the Supreme Court would say the issue needed to be looked into by a larger Bench,” the former apex court judge reasoned. Justice Kaul said he was expecting something like this to happen, saying the President had made the Reference on points of law.
But Mr. Sibal called the judgment a milestone.
“If there is no timeframe, they could sit on Bills for months. This is how they intend to destabilise governments. Governors have been interfering ever since this government came to power,” he argued.
Published – May 15, 2025 11:10 pm IST
