Senior Advocate Sanjay Hegde says SC in its advisory jurisdiction cannot overturn judgments delivered under its adjudicatory jurisdiction.
Representational image. (iStock)
The executive committee of the Supreme Court Bar Association (SCBA) has distanced itself from the letter written by its president, Adish C Aggarwala, urging President Droupadi Murmu to withhold the enforcement of the Supreme Court’s verdict on electoral bonds and seek a Presidential reference on it. However, that does not set the matter at rest because the question of contempt of court may be involved.
A day after Aggarwala’s letter, the executive committee issued a rejoinder, unequivocally condemning the views expressed, terming it as an attempt to overreach and undermine the authority of the Supreme Court.
Senior legal luminaries say the letter attracts contempt. A retired justice of the Supreme Court told South First that seeking a stay on the verdict amounts to “blocking or obstructing the implementation of the judicial process”.
A former High Court Chief Justice explained why a Presidential reference is not feasible in the electoral bonds verdict case. He said, “In this case, it does not arise because the verdict has been delivered and time-bound directions have been given and are being complied with.”
Aggarwala’s request for a reference is equally without basis. Article 143 of the Constitution says it clearly, and legal experts also assert that while the President has the authority to seek the Supreme Court’s opinion in case of doubt and while there is no precedent of a reference in cases such as the bonds verdict, any opinion given by the apex court is not binding.
Senior Advocate of the Supreme Court, Sanjay Hegde, saw the matter from a legal perspective. On the President’s powers, he said: “Article 143 is wide and permits the President who thinks that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court’ to send a reference.”
Hegde explained the Supreme Court’s discretion: “The Supreme Court is not bound to answer every reference and can even return it. Its answer is merely advisory and not binding upon the Government. The SC, in its advisory jurisdiction, cannot overturn or set at nought judgments delivered under its adjudicatory jurisdiction. The SCBA President is probably speaking for himself without the consent of the executive body of the SCBA.”
A lawyer, Shivam Tripathi, in an article in the Law Review of the Indian Law Institute titled “Analysing Presidential References in India and questions which follow” (2020), writing on the nature and scope of the references, observes: “… the President can refer any matter to the Supreme Court under the advisory opinion….Even the Supreme Court cannot deny advice to the President solely because the matter so referred to is not of urgent public attention. However, any matter already decided by the court cannot be referred to under article 143.”
Lily Isabel Thomas, an Indian lawyer who initiated improvement and change to existing laws by filing petitions in the Supreme Court, referred to this point in her article, “Advisory Jurisdiction of the Supreme Court of India”, in the Journal of the Indian Law Institute in 1963.
The inference is that as the Supreme Court has already given its verdict in the bonds case, it cannot be the subject of a reference.
In Tripathi’s words, “a Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court”.
He critically observes the purpose of a reference: “A Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court, the mechanisms of review are the only option.”
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