President's question 8: In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?

CJI: leave this question they will not oppose this.. else we will have to leave work and sit in constitution benches and give advice to President under Article 143(5)...

SG: Article 142 cannot be used to amend the Constitution...

CJI: we are not on hypothesis. We have petitions before us.

Justice Narasimha: See how the political executive came up with 10th schedule and not the court

SG: yes for some things solution has to come from within. The moment an executive steps into the judicial domain, they have been restricted. Rightly so. That's how NJAC was struck down, on the basis of separation of powers, and it has to be a two-way street.

Justice Surya Kant: Tamil Nadu is a different case. It was said that nothing is being done.

CJI: We are not on appeal on this judgment. What if bills are pending for four years? we have Petitions from three to four states.. we appreciate timeline argument.. but consider a situation that governor is to grant assent but sits for four years.. then what happens to the will of 2/3rd majority.. what happens to the elected.

SG: if someone approaches the president saying that the case is pending for 7 years.. in trial court and my max punishment is 7 years.. can the president acquit me .. ? For every solution it is not adjudication by this court.

Mid hearing, in a light hearted comment, bench notes a number of parliamentrians senior lawyers are in court

SG: when parliament is in session

CJI: no it was adjourned sine die

Dr AM Singhvi: During a parliament session, me and Mr Arun Jaitley were coming out of the parliament when Mr Sitaram Yechury was also coming outside ... it was right after Mr Yechury had tabled a bill in the parliament seeking to restrict lawyers, doctors, etc to be member of parliament .... so we told him.. "Sitaram you want the parliament to not be a place for the employed and employables"

SG referring to Justice JS Verma's lecture: The justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in courts for half-a-century as pointed out by this Court in Rajindra Singh v. Prem Mai [(2007) 11 SCC 37] . 31. If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions.

SG: The solution is the amendment of the constitution, and till then, the political process is the way out.

Justice Narasimha: Today, we are on the procedure prescribed. Where is the constitutional immunity? See Kesari hind case.. won't there be constitutional logjam then if you say the solution is only political

SG: The court holds its hands, saying that it is not Justiciable.

CJI: So, what is the safeguard for the duly elected legislature, and suppose the assembly passes the bill with 2/3rd majority.... And then it is not put into effect, then the legislature becomes defunct! And governor holds the bill indefinitely and for time immemorial..

SG: The Governor is the most vulnerable position. When CM meets the prime minister and shows something like this.. governors have been removed and others have been appointed. That has happened. There are inbuilt mechanism also to deal with.. every problem is not solvable under article 32.

CJI: Suppose a particular function is entrusted to the governor and he withholds it for years together, then will this be outside judicial review? This court has also set aside the provisions which curtailed judicial review... Can we say that however High constitutional authority it is.. court cannot do anything. We are not on reasons for assent ..but if the governor sits over it.

SG: we are on justiciability.. we say that only extreme cases cannot be taken to decide this...

CJI: As we were speaking of hard cases... Sometimes hard cases lay down a good law.

SG: never Milord. Solutions are then in the political domain, and it is wrong to believe that every organ would fail and only the judiciary can remedy it..

SG: Decisions are polycentric ones. Based upon that, how can courts determine whether assent was correctly given or not? Now on constitutional comity. Justiciability should be denied. In MP oil, it was held "The supremacy of each of the three organs of the State, i.e. legislature, executive and judiciary, in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields." This was in 1997

CJI: Now it is 2025.

SG: Suppose assent is given after the views of the Council of Ministers. This court cannot intervene as to how assent was given. The President can also send the bill to the legislature under Article 201. Multi-pronged judicial attacks are not contemplated..

CJI: If the governor withholds it permanently...

Justice Kant: Justiciable is assent .. but the process has to be followed.

SG: this separation of powers among Constitutional functionaries is accepted

SG:.. in toto, the constitutional text, federal logic and judicial exposition confirm that the Governor’s determination under Article 200 is a wide, discretion-driven and essentially non-justiciable power. It is without a doubt, controlled by conventions of constitutional statesmanship and the embedded federal-unitary balance.

Matter to resume at 2 pm

SG: This court has the power of judicial review but degree of justiciability will vary. One organ cannot arrogate function of a other.

Justice Narasimha: see you are on two extremes.. one is just because one view is taken.. you cannot make any view at all Can that be done

CJI BR Gavai: No, no, but if there is a wrong, there has to be a solution. This court is an organ of the constitution... If a constitutional functionaries does not discharge functions without valid reasons.. should the court say we are powerless and hands are tied!

Justice PS Narasimha: Interpretation can be there..

SG: but that cannot lead to timelines.

Justice Kant: With the power of interpretation vested in.. can it not be done?

SG: Suppose a governor is sitting over bills, there are political solutions. There are delegations to the Prime Minister, to the President and the impasse is solved. But that does not confer jurisdiction to lay down a timeline! Such issues are arising in many states. Statesmanship, political maturity is at play.

Justice PS Narasimha: Okay, we cannot specify a time limit, but a process needs to be worked out...how can it be that the bill is not acted upon... How long can that be a dead end?

SG: that is what.. what you are pained at is justification for laying time limit but justification does not confer jurisdiction..

SG: Can one constitutional authority prescribe a time limit for another constitutional authority? Constitutional framers were conscious that some functions need timelines while others don't need them.

SG reads Shamsher Singh vs State of Punjab: In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers. Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State.”

SG: Where the Constitution expressly provides for the same – For example, Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2) and 18(3) of the Sixth Schedule; b. c. d. e. Where the legislative intent emerges from the interpretation of any provision of the Constitution – like the powers under Articles 200, 356 or the power to dismiss the government which has lost confidence but refuses to quit, as has been mentioned in the Report of Justice M.M. Punchhi Commission and as have been concurred by a 5-Judge Bench of this Hon’ble Court in the Nabam Rebia case supra; Where the Constitutional Courts specifically declare that certain functions ought to be exercised by Governor on his own; Power to summon or prorogue the House of Legislative Assembly under Article 174 when there are strong reasons and material to show that the incumbent Chief Minister and his Council of Ministers seem to have lost the majority of the House; Situations or matters where the bias is inherent in the aid and advice of the Council of Ministers like in the case of the grant of sanction for prosecution of Council of Ministers.

SG: This Court has carved out an exception to the general rule of the aid and advice, which is not expressly stated in the Constitution; however, it is in consonance with the intent of the framers of the Constitution of India and also with the scheme of functions and powers of the Governor provided therein. A reading of the judgments discussed below and other provisions of the Constitution of India would show that, inter alia, the following are the exceptions to the general rule of aid and advice

SG Tushar Mehta: Of late, Milords.. You cannot take voters for a ride.. Voters ask what is due..

CJI: who said this

SG: I am saying like earlier times.. voters cannot be taken for granted.

CJI: We have always said judicial activism cannot become judicial terrorism.

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.

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