CJI: Will the Attorney conclude today?

AG: yes 2 more issues and the rest will be handled by the solicitor.

Matter to resume at 2 pm

AG: We will certainly look into whether aid and advice will bind if the bill is so unconstitutional. Then, what should the president do? Blindly follow it, or say that it is so? I will also address this.

CJI: So, as per you, the last proviso is added by the judgment

AG: it gets impregnated into Article 200..... If parliament enacts a law enacting executive policy.. suppose on health etc.. so the president will be told not to look into it ?

AG: Court interprets the constitution and if such a question arises...or when the court enters such a field... The court will be very slow to decide unless it deems fit that such a question has to be decided by it.

Justice Narasimha: You cannot ask this in advisory jurisdiction .. you are asking us an opinion and opinion can be polyvocal.

Justice PS Narasimha: Why should we answer question 4 at all 4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

CJI: so you are saying first matter should be seen as to whether there is substantial constitutional questions or not.. if that is the case then Mondays and Fridays.. the volumes of cases which come to us...

CJI: so you say this court has encroached upon the legislative domain of the parliament.

AG: Yes can the court go to the extent where it says let me take pen and paper and rewrite the constitution

AG: In the Tamil Nadu judgment, the court entered into the legislative domain and stated that leave to the legislature we will solve the issues and give answers. That was not the case.

Senior Advocate Maninder Singh: There is no question of overruling here.. but in answering the questions, this court can.

Senior Advocate Harish Salve: It is not a jurisdictional bar but a self-imposed limitation. Under 141, a judgment binds all courts except the Supreme Court. For very good reasons. This is putting the cart before the horse. The court has not even dealt with these questions. The judgment needs to be read and reconciled. This is not maintainability.... This is answering the questions which has been raised. Thus, let us not waste more time.

Senior Advocate Neeraj Kishan Kaul for state of MP: 2G says review or decision deals with lis interparties and it says view on law is subject to overruling and modifications.

SG: This has created a constitutional functional problem. Am i bound by three months deadline.. am i bound by directions under article 200 or should all states come to supreme court.. we cannot forget we are dealing with constitutional functionaries..and this is not a lis to be decided. We will pursue the court on merits.

Justice Kant: we are exercising advisory jurisdiction and not appellate jurisdiction. For overruling, etc, you may have to move the review.

SG: In 2G and in Kerala case, this court has held that in answering reference this court can even overrule a judgment.

SG: This court can say that the Tamil Nadu judgment is not the correct law ... That will not be appellate power but the exercise of inherent powers.

SG: This court does not usually enter cases which are decided, but in 2G cases it was held that even that is permissible.

Solicitor General: This is a suitable generis issue. Here the president is seeking clarity on what to do when there is a constitutional problem.. what should the president or the governor do.

AG: Even if the field is occupied by the judgment and the President feels there are multiple judgments, one, three, or two judges' bench judgment ...then such a reference is sought and the court can answer the questions.

AG: There is no threshold injunction against this court. The question is under Article 143, what will this court do... In a given case of public Importance, the court can depart from the practice. There is no inbuilt bar under Article 143.

AG R Venkataramani: We had specifically referred to Article 145 in the Tamil Nadu judgment.

Singhvi: 2G case bench was considering issues which were not decided earlier...

Senior Advocate Kapil Sibal: the principle of law decided in 2G was that natural resources must be auctioned. There were mines and minerals, etc The question was whether all natural resources should be auctioned.

CJI: We are not deciding the appeal against the Tamil Nadu decision. We are on the reference.

Justice Surya Kant: But where is the question of setting it aside..

CJI: If this is accepted, then no judgment of this court can be touched.

Singhvi: Kindly consider the institutional implications for having such intra court appeal

Justice Vikram Nath: You are making assumptions that the two-judge bench decision will be set aside. Why?

Singhvi: This court is being asked to change the contents and substance of a judgment between two different parties, and this is a subversion of the institutional integrity. This is an appeal, howsoever nicely you camouflage it.

Singhvi: If a bench is hearing a matter and seeks a view and refers under 145(3), it can. But if the bench chooses not to.. then in a subsequent case unrelated to lis between parties a and b, the court may or may not refer the lis..it shall be else not subserve to the law laid down by this court.

Senior Advocate Abhishek Manu Singhvi: No intra-court appeal directly or indirectly. No review filed. Article 143 is not a substitute for a curative as devised in the Rupa Hurra case. Every issue barring issues 11,12 and 14.. all are directly covered. Now these three issues do no arise since 11 is not a standalone issue and 12 and 14 are peripheral issues.

CJI: So you are saying five judges bound by two judges..

Venugopal: Unless you overrule it,

CJI: We have understood.

Venugopal: This is outside Article 143 since these 11 issues have been finally decided. Also, the government was bound to seek review. The President is bound by the aid and advice of ministers. The President has to carry out what is stated by the Council of Ministers. Thus, this reference, issued by the Government of India, bypasses review and results in the overturning of this court's judgment. Judgment of this court under Article 141.

Solicitor General Tushar Mehta: The judgment has considered the point of reference as well.

CJI: what about article 145(3). Are the judgments on which you are relying by five judges?

Venugopal: no with 2 and 3 judges..Telangana 2, Tamil Nadu 2 and Punjab 3 judges..regarding 145(3) there is some dispute. This court is deciding a large number of constitutional cases day in and day out.

CJI: When Hon'ble President is herself seeking reference, then what is the problem ... Are you really serious about contesting this? Then tell me how to overcome 145(3).

Venugopal: In Punjab as well as Tamil Nadu cases, 'as soon as possible' has been interpreted by this court. In the Tamil Nadu case, a timeline was laid down.

Senior Advocate KK Venugopal: The issue is covered by a series of judgments.Reads Article 200 of the Constitution of India

AG R Venkataramani: The AG was issued notice...with your permission I can put across some preliminary pointers

CJI BR Gavai: First we have to hear objections to the maintainability

Senior Advocate P Wilson: State of Tamil Nadu has to be heard on maintainability

President Murmu has questioned the Supreme Court's direction that there would be a deemed consent in case of failure to abide by the timeline set by it for granting assent to the bills.

The concept of a deemed assent of the President and the Governor is alien to the constitutional scheme and fundamentally circumscribes the power of the President and the Governor, the reference states.

The top court will first hear preliminary objections regarding the maintainability of such a reference Union to begin submissions today

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

The Court held that although Article 200 does not specify any time limit, it cannot be interpreted to allow indefinite delay by the Governor in acting on Bills passed by the State legislature.

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.

“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State,” the judgment said.

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 neither Article contains any express provision empowering the Court to prescribe deadlines, and that the notion of “deemed assent” in the event of delay is not contemplated by the Constitution.

The reference objected to the Supreme Court’s ruling that introduced the concept of “deemed assent” if the President or Governor failed to act on a Bill within a prescribed time. The reference argued that such a concept was contrary to the constitutional framework.

The President’s questions are understood to include whether the Supreme Court can effectively legislate a procedure where the Constitution is silent, and whether timelines for assent encroach upon the discretionary domain of constitutional functionaries.

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.

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

According to TN's application, the reference is an appeal in the disguise of a reference and it should be returned by the Court unanswered since the Supreme Court cannot sit in appeal over its judgments.

The State of Kerala too filed an application before the Supreme Court to declare the Presidential 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.

Pertinently, the Centre has also said that Governors are not mere emissaries or outsiders in a State but carry the will of the people of the entire country into individual States.

Live updates from hearing feature here.