How will a Presidential Reference on SC's liquor ban help resolve issue?

Pranab Mukherjee
What happens if there is a dispute between the centre and a group of states or between the centre and a state? Article 143 of the constitution says the central government can refer the matter to the President of India with a request that he ask the Supreme Court to rule on the dispute. This difference of opinion could relate to an existing issue or one likely to arise in the future because of the enactments of Parliament already passed or likely to be passed or because of some judgment of constitutional courts or otherwise.

Article 143 is used sparingly and cannot be used as a political forum to settle political questions. That is why Article 143(1) of the Constitution makes it discretionary for Supreme Court to report such opinion to the President. So far there have only been 11 cases of references under Article 143 of the Constitution.

In this situation – where an order by the Supreme Court has caused hardship, economic loss and loss of livelihood so acute as to virtually make the SC order unimplementable, how does a Presidential reference resolve the problem?

It’s like this:  there is no court beyond the Supreme Court. And yet, it has passed an order that has caused untold difficulty to the people. So the centre says a group of states, in writing, can request it to refer the matter to the President of India for reference to the Supreme Court under Article 143 of the constitution.

There is another window. Article 137 allows the Supreme Court to review its judgments or orders, but subject to provisions of laws made by Parliament.

As Parliament has not ruled on how much the distance between a bar and the highway should be, it is possible that the President of India could call constitutional experts as well as the Attorney General (AG) Mukul Rohatgi and ask them their opinion on the crisis faced by the state governments because of the Supreme Court’s order on bars and liquor shops along the highways.

This will be tantamount to asking the Supreme Court to review its own judgment. If the Supreme Court says it cannot review it, the matter could be taken to the next level – where Parliament passes a law annulling or modifying the Supreme Court’s order. But that will be a surefire way of entering into protracted conflict with the judiciary.

It is hard to say what the centre – and the states – will do. Most of them are considering writing to the centre on the difficulties of implementing the order. It could be said that the challenge before the Court is the same as it faced in the case of jallikattu – where an order passed by the court in the general good questions the identity, right and livelihood of the people themselves. 

Business Standard is now on Telegram.
For insightful reports and views on business, markets, politics and other issues, subscribe to our official Telegram channel