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 reference made by President Droupadi Murmu 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.

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 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.

During a hearing of the matter on August 28, the State of Tamil Nadu argued that accepting that Governors can withhold assent even to money bills passed by a State legislature would effectively make them a "super Chief Minister" of a State.

This argument was made in response to a submission made by the Maharashtra government on August 26 that the Governor can deny assent even to money bills.

On Tuesday, the Court said its decision in the matter would not be influenced by which political party is currently in power or was previously in power. The Court also expressed a doubt over its power and decision to establish timelines for Governors and the President regarding their power to assent to bills passed by State legislatures.

Senior Advocate Kapil Sibal continues his arguments

Sibal: Since independence, have your lordships ever heard the president withholding the bill? What’s the reason for that?

CJI Gavai: It’s the will of the people.

Sibal: yes. Because it’s the will of the people. There’s an element of urgency, it has to be implemented immediately.

Sibal: The other issue is that when the bill becomes law, there is a presumption of constitutionality. The legislation is not concerned with the constitutionality of the bill. That’s the domain of your lordships.

CJI Gavai: So, according to you, the legislative competence of a bill cannot be examined by the Governor?

Sibal: exactly. At the stage of introducing and passing bills we don’t test the constitutionality of the bill.

Sibal: Legislation can be challenged in a court of law by citizens or by someone else. It’s in the rarest and rare case that a governer says I cannot pass.

CJI: if he finds that the law is repugnant in view of central legislation.. can he not reserve it.

Sibal: There is a Presumption of constitutionality and it is a rare case

Justice Narasimha: Take citizenship..

Sibal: this is an example which has never happened in history of republic of India

CJI: Question is, can't the governor then exercise his right?

Sibal: Bills and legislation are not introduced like this. Deliberations take place.. like drug control etc. laws are not passed at whims of ministers.

Justice Kant: So you say application of mind will be there by the governor. You can argue what the contour is.. so he can't be a postman nor a super legislative body

Sibal: Sovereignty of the state legislature is as important as the sovereignty of the parliament. Should governor be allowed to delay this.. that's the question. Home cannot function unless there is marital accord, and this applies to Institutions as well. You cannot create a discord..and if so.. then it will break down. The court has to ensure that there is no area of discord. So the keyword here was as soon as possible. There is an element of immediacy.. it is will of the people.

Sibal: Suppose the governor sends it back... The assembly passes it again, and he again withholds it. Then what will be done? Let us not interpret the Constitution to make it unworkable. They say under 361 court cannot issue mandamus.. governor cannot file affidavits and if he wants he will appear. So language does not matter objective matters. It's a living document. It has its genesis in history but has allegiance to future and the court is the future. Let us not make this into a trap. Suppose timeline is not there.. but it has to be said that no Withholding if passed again by assembly... Then you come to the court and say the court cannot do this.

Sibal: Once discretion is granted then there would be no meaning ... Governor cannot be given so much power.

Sibal: The Legislative process exercise gives you the contours of whether you can exercise power under Article 200. Your Lordships have seen the Prime Minister go and brief the President as to what happened. if he goes on a trip..he briefs the president and also about proposals and even about ONOE. The President, in the same discussion, have a conversation where a cup of tea happens..

CJI: Not a cup of tea between your CM and the PM.

Sibal: You cannot create an interpretation to create more litigation. Article 361 has not been accurately interpreted.. else you will make Article 200 completely redundant.

Sibal : All confabulations with the governor may happen beforehand, and once the bill is sent, it must be assented to. Yes there may be extraordinary circumstances..but it has to be expedient and president acts on advice of council of ministers. So it's the govt taking the decision

Sibal: Will of the people cannot be subject to executive whims and fancy.

Justice Narasimha: You are saying bills can be tested only in court. But when there is repugnancy..

Sibal: These are extreme facts. Then I will other facts and destroy those arguments. The question is even if sent back by the legislature.. it will still be withheld. Can that be done ...Do not allow ... As a matter of constitutional law . Do not allow the executive to interfere with the will of the people.

Justice Kant: So, proviso to Article 254(2) is a settled filter, you say.

Sibal: Yes. This decision has to be taken forthwith. That is the meaning of word as soon as possible.

Sibal: The Concept of judicially manageable standards is not the subject of constitutional law at all. Duties of citizens towards states are not judicially manageable.

Sibal: Giving a timeline does not mean amending the article. It is to ensure that the article and the constitutional functionary works well.

Sibal: If you allow the governor a personal choice to assent or not, neither the centre nor the state is involved. So the centre cannot defend him and the state is at odds. Then how will the writ lie, and if the power is given to the governor, then he is answerable. Then you cannot take a shield under 361. You can't have it both ways. This is how the Constitution is being made unworkable.

Sibal: Be careful when dealing with such a matter which is on hypothetical basis without facts of the case.. there are several peripheral issues which are not before you.

Sibal: All these questions, with the greatest respect, should not be answered. The only parameter that needs careful consideration is Article 200 with respect to the power of the governor. These questions have just been put through a presidential reference.

Sibal: I have not repeated a single argument. I am done.

SG Tushar Mehta: On maintainability... Dr Singhvi argued on first day... But now he closed on that saying that questions should not be answered

CJI: But he is supported by a judgment by Justice Chandrachud. You can respond in rejoinder.

Senior Advocate Gopal Subramaniam for Karnataka: If the cabinet form of govt is the quintessential form of democracy then one has to determine the role of the president and governor. They are titular heads. These principles will be violated if they are given discretion. If anything it has to come from the text of the Constitution...

Subramaniam: The Governor enjoys no legislative power at all. No legislative power. So, the Question of high constitutional authority enjoying plenitude of discretion is anathema to the constitution. In Keshavanda Bharati, the governor and the President were equated on equal terms.

Subramaniam: We have to first see what the relationship is between the governor and the president.

Bench to resume proceedings at 2 pm

Subramaniam: Neither the president nor the governor participates in the affairs of the house. They do not vote or participate in deliberations of the house. The messages sent by them are after the aid and advice of the Council of Ministers. Thus, they do not have any kind of discretion...

Subramaniam: The union seeks to indirectly abrogate the fulcrum of the cabinet form of government. In Keshavanda Bharathi, the court had to check whether there was any limitation on Article 368. The court noted that the governor and the President stand on the same footing and thus a democratic form of government through the cabinet was held to be part of the basic structure. Theory of implied limitation was recognised.

Senior lawyer and former union minister Anand Sharma: There are no firewalls when we talk of the separation of powers. I appear after a long time at the bar.

CJI: you should have followed Mr Singhvi and Mr Sibal, Mr Wilson

Sharma: When I am entrusted a serious work of lawmaking...

CJI: Do you want to say they are not serious.

Sharma: My father, who was a passionate lawyer, never approved of my other choice, which kept me away from this court (politics). So this is a tribute to my father as well.

Sharma: The discretion of the governor does not exist in the constitution. Article 200 as soon as possible.. the correct interpretation means at the earliest and would be the correct way

CJI: Mr Sibal has gone a step ahead and argued forthwith...

Sharma: The President or the Governor has no role in summoning the legislature to sit.

Sharma: Federal structure as a basic structure is what we have .. and this reference brings that to the fore. The Centre state has a clear demarcation of powers.

Sharma: Governor's office cannot be used to nullify the will of the people.

CJI: All this has been argued.

Proceedings to continue tomorrow