The Supreme Court is hearing the Presidential reference case on timelines and procedures for the President and State Governors when considering Bills passed by State legislatures.

A Constitution Bench comprising Chief Justice of India (CJI) BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice Atul S Chandurkar is hearing the matter.

The Bench was constituted to decide the reference made by President Droupadi Murmu under Article 143(1) of the Constitution, which allows the President to seek the Court’s opinion on questions of law or matters of public importance.

The Presidential reference challenges the top court’s top court's April 8 ruling, which prescribed timelines for the President and the Governor to decide on Bills and also held that the Governor’s inaction under Article 200 (Governor's powers regarding assent to bills passed by the State Legislature) was subject to judicial review.

The Supreme Court’s judgment of April 8 was rendered in a case filed by the State of Tamil Nadu against the Tamil Nadu Governor.

In the judgment, the apex court ruled that the absence of a time limit under Article 200 to decide on bills passed by the State legislature could not be interpreted to allow indefinite delay.

A Bench of Justices JB Pardiwala and R Mahadevan held that the Governor must act within a reasonable time and that constitutional silence could not be used to stall the democratic process.

With regard to the President’s powers under Article 201, the Court held that her decision-making is not beyond judicial scrutiny and must occur within three months. If there is any delay beyond that period, reasons must be recorded and communicated to the concerned State.

Following the ruling, President Murmu referred fourteen questions to the Supreme Court, raising constitutional concerns about the Court’s interpretation of Articles 200 and 201. The reference argued that the Court is not empowered to prescribe deadlines, and that the notion of “deemed assent” in the event of delay is not contemplated by the Constitution.

The reference also underscored that legislative functions are separate from judicial powers, and that directions of the kind issued in the Tamil Nadu Governor's judgment risk upsetting the balance between the three branches of government.

The Kerala and Tamil Nadu governments have opposed the reference as not maintainable.

On the other hand, the Central government has supported the reference, arguing that the power of Governors and the President to act on Bills is a “high prerogative” function which cannot be bound by judicial timelines.

When the matter was heard on August 20, the Supreme Court observed that if a Governor is given the power to permanently withhold assent to the bills passed by the State legislature, it would leave the elected State government at the whims and fancies of an unelected Governor.

In the ensuing hearing of August 21, the top court questioned whether courts should be left powerless to act if a Governor sits over a bill passed by a legislature for years.

The Court reiterated these concerns during the last hearing of the matter, which took place on August 26, as well.

Live updates from the hearing today feature here.

SG Tushar Mehta: I had to take instructions on two questions ... Whether writ will lie on behalf of State government and then on the ambit of Article 361. The president says she would require assistance of your Lordships.

SG: This has to be answered else the questions will keep arising.

SG: Lordships never issues a mandamus to the Governor.... Court cannot say 'Mr. President decide in 3 months, and if not, give reasons.' And then telling the State that 'if not, come to us.' Article 32 does not lie, it is not justiciable and mandamus cannot be issued.

SG: State government is repository of functions to protect the fundamental right of citizens. It cannot file a Article 32 plea by itself.

SG cites a case where the Karnataka government approached the court under Article 32. This court did not entertain it. Article 32 is to safeguard fundamental rights.. this court held that state cannot approach under Article 32

SG: Suppose there is a law and order situation in some state, and the local police are unable to contain it. Can the central govt file a plea seeking deployment of paramilitary forces... To me, the answer is a No.

SG: If assent is granted, can someone challenge the same and can direct that assent be taken away?

CJI: But the validity of the law can be challenged. The question is when the governor sits over a bill passed by the legislature and keeps sitting over it. The word used was as soon as possible.. earlier it was six weeks and later made as soon as possible.. one of the members in the drafting committee stated as soon as possible it was immediately.. if this was the frame of constitution makers can we ignore that ?

SG: This court has held that this court will not issue mandamus to frame a law or implement a law. Article 361 becomes nugatory if this court accepts the power of the state government to file a writ.

Justice Narasimha: can such a direction be issued under Article 141.. or there is no forum at all for this ?

CJI: Governor is the vital link between the state government and the central government. That's what the framers had also envisioned.

SG: We are on a constitutional scheme. What is envisaged is that there will be a person who will look at national policy vis-à-vis state policy. If this logic is used even CAG is appointed by the president..

SG: A multitude of considerations go into deciding whether to assent to a bill or not. Like if assembly passes a bill that only one language be used and no other.. it may be under list 2, but waiting for a year in such situations may prove beneficial.

SG: judicial pronouncement interpreting Article 361 was in the context of an action of the President/Governor not relatable to either Article 111 or Article 200/201 of the Constitution. The cases decided by this Hon’ble Court held that the Government can answer on behalf of the Governor. In practice, the secretary to the Governor is joined as a party so as to enable the Court to seek the record from the office of the Governor to satisfy itself about existence of material, procedure, etc.

SG: Neither Article 32 nor Article 226 is maintainable by the state or by a private individual in such a case since it is not Justiciable.

[Parties opposing the presidential reference begin]

Senior Advocate Abhishek M Singhvi: On discretion and Article 200. Govt and President are titular heads with no discretion for executive decision making save and except a very few ones. There is strong material to show that in each of the three options in Article 200, the governor is bound by council of Ministers in returning or referring it to the President

Singhvi: The governor in any event has three options, and if he chooses not to assent to the bill, can either return the bill or send it to the President.. next there is no option to fail the bill or make it fall through.. such a reading negates Article 200.

Singhvi: The Governor has no independent discretion in the discharge of his constitutional functions.

Singhvi reads constituent assembly debates

Singhvi: Mr Mehta's submissions say that a governor may hold a bill back for some reasons. 9 doomsday scenarios have been given. Hypothetically, the sky may fall on our heads. Such examples have not happened in 75 years. So all this is very imaginary. Imagination is very fertile.

Singhvi: Yes, the Governor is part of the legislative process, but is not part of legislation. The Governor may have a role but on the advice of the Council of Ministers.

Singhvi: The submission is being made to portray the governor as a super chief minister.

Singhvi: The concept of broad discretion will only create chaos. Refers back to constituent assembly debates

Justice Narasimha: When the council of ministers insist on assent.. and the bill is impinging on constitutional provisions. Are you saying there is no such option for him but to grant assent?

Singhvi: Constitutional scheme will not change.. he has to assent... The law if bad will be challenged in court and struck down. He is not the judge.

Singhvi: This court will not go by even the milder examples given here. The intent of the framers of the Constitution is clear. Please see Valluri also... Governor can assent, withhold assent, return bill to the assembly or refer to President on advice of the Council of ministers

Singhvi: On the money bill issue, it was said that Withholding will equally apply. The purpose of 207 is wholly different. A completely non-existent argument has been made between withholding and returning. Withholding must lead to returning. You can return only when you withhold.. a separate dichotomy has been created in this regard.

CJI: First is to give assent, third is to reserve for the President.

Singhvi: So the middle option gives effect to the proviso, and it gives it a reading that you may or may not give assent and withhold it forever. It does not mean that withhold always and you go to sleep

CJI: Yes, then withhold till eternity, and words as soon as possible will go on till eternity.

Singhvi: Can you return a bill that has been assented to? What kind of interpretation is being given and a dichotomy is being created when there is none.

CJI: at times hard facts brings a good law.

Singhvi: In the doctrine of law, the purposive interpretation is completely different. Withholding assent is the focus of the proviso. There is no question that it is meaningless.

Singhvi: It is contrary to previous constitution benches to make the bills fall through. If I withhold and send it back, and state does not send it back, it falls through. That's incorrect reading.

Justice Nath: The word may has been used there, not shall. Why complicate it like this?

Singhvi: may is not used for this.. it is used for the other part. If the proviso is applied and read to me ... May links to the previous line. He has three options. This does not arise in the first and third options. In the second one.. it comes .. that's why "may". The reason he may send it back is for assembly to reconsider or send it to the President, but not to withhold forever.

Singhvi: Whether out of 100, some governors will send back 99, or some will send back 1.

Singhvi: The proviso was created for governor to grant assent if the legislature sends back the bill

CJI: They are saying legislature can choose not to send the bill ahead and then the bill falls through. But the governor cannot do that ...

Singhvi: Yes

Justice Narasimha: Fall through.. the bill will lapse. Fall through is not the correct expression ..

Hearing to resume on next Tuesday.