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.
Live updates from the hearing today feature here.
CJI: so today is the last day of your side ? (To SG Mehta)
SG: Yes Milord.
Senior Advocate Neeraj Kishan Kaul: The bill goes to the President for his assent. The proviso is more in the nature of a preliminary option or a consultative question. Very sensitive to it. The words at the end of it, which are, shall not withhold assent, have been sought to be argued to mean that it is an adjunct to withholding assent, which it is not. Ultimately, somewhere or the other, what was argued in the Tamil Nadu matter comes in. And that is why I am just saying this.
One of the arguments forwarded was that since the last line of the proviso says, shall not withhold assent, it necessarily means that the proviso is an adjunct to withholding shall declare and withhold assent. And all of this I respectfully submitted that neither the textual context indicates it. The judgments clearly say, shall fall. And unless can surely, even by the ordinary dictionary meaning as used in those judgments, never be meant to mean that if you withhold assent, it must be sent to the assembly. Unless can never mean that. Unless is a consequence that it shall fall through, unless of course it is said.
Kaul: Please see Article 167 of the Constitution
CJI: Even if the second time the council of ministers reiterate a bill, then also the governor can withhold? Kaul: No, then he can either assent or send it to the President. Otherwise, it's against the law.
Kaul: You cannot define the circumstances under which the governor can refuse assent.
Kaul: The action of judicial review is always tested on the touchstone of the Constitution. Now, as far as justiciable, manageable standards are concerned, my Lord, Your Lordship says that where there exists none, the action is not susceptible to judicial process. That's all that I am saying in these cases. I am saying that where there are no justiciable standards on a particular action, for a certain action... So, within judicial review, there shall also be some that are not Justiciable.
Kaul: So, the power of judicial review is implicit, but some are non-justiciable.
Kaul: ... your Lordship said in regard to the Speaker, your Lordship said Tribunal, and not only that, you also said that there is no immunity available to the Speaker when he acts as a Tribunal. Not only that, sc said, the other thing which weighed this court was that the life of an Assembly is five years and why should anyone, why should anyone who is otherwise incurred the wrath of defection should continue as a member of the House? And that was another consideration.
CJI: When the house has passed a bill..can the governor sit on it indefinitely? Suppose a bill is passed in 2020.. will the court be powerless if there is no consent even in 2025?
CJI BR Gavai: According to you Governor has veto power under Article 200 to withhold bills?
Senior Advocate Harish Salve: Using word veto power would be an uncharitable characterisation...yes he has the power to withhold. But yes he has the power. Veto is a word we use for personal interest and governor does not do so.
CJI: Just for clarification, your argument was that the union has the power to reject a bill passed by the legislature. So, you say it can be done even if there is no repugnancy with the central law.. even if under list 2?
Salve: Yes, that is under Article 201.
CJi: Then what happens to Article 254?
Salve: If we start stitching up the provisions, then we are eroding the vision of framers.
CJI: we are on reading provisions harmoniously
Salve: Read the articles with me. I will not cite any judgments.
CJI: When there is internal or external emergency... The powers are yes vested with the union for national cohesion and integrity.. like war etc. But what about the normal times?
Salve: state legislatures are the legislatures that have the right to make laws. Having conferred this right, we have two models which are parallel.. state legislature and the union legislature. So when the constitution reads them differently, it cannot be read in a similar way
Salve: By itself, there is no disharmony between two provisions. Then see 254(2) with 200.
Justice Narasimha: The issue is not about veto or withholding. By the interplay of 200 and 201, it is clear that the bill shall be sent to the President, and the buck stops there. we are not so much there.we are on article 200 where union says substantive provision stands on its own de hors the proviso.. leading to withhold..
Justice Narasimha: Even at the threshold a bill can be withheld or veto be used. How to counter that ..
Salve: Article 200 language is plain...but the problem is in reading .. .
Justice Narasimha: If your construction is adopted, then a money bill can be withheld at the threshold itself.
Salve: Yes. Let us keep the proviso to one side for a bit
Salve: we are picking up words from outside the provision and reading into the provision to read that there is some timeline therein.
Salve: We have to rewrite the constitution to hold that the Power of withholding is only to send it back to the assembly.
SG: But for money bill.. it is introduced itself with recommendation of governor. So it is not withheld..
Salve: but if the bill undergoes discussion on the floor of the house...and goes through amendments...the governor may withhold assent. I am on the existence of power and not how it is used.
Salve: It is not a feature of Indian federalism that an assent must follow after a few rounds of confabulations. We have a limited federalism with hope that all these functionaries will act with wisdom.
Salve: The Governor is appointed by the president, and the governor holds office at the pleasure of the president. So we have to realise that this is within the constitution, so in one sense he is the channel of communication between the union and the states. So when there is a serious matter brewing between the two.. governor withholds a bill.. it is unlikely union has no role to play. So you have to look at the complete package to define indian federalism.
Salve: Is the governor's power amenable to judicial review? The answer is no. If power is vested on a high Constitutional authority.. then can it be reviewed and this cannot be tested by analogy. Then why do we say so.. if a power is vested on such a high authority.. the authority has to be satisfied with the use of such power.
Salve: When there are no condition precedent then the question is how will judicial review will apply. There is no way that without making the governor answerable, you can judge why a particular bill was withheld by the governor.
Salve: The court can ask governor what is your decision and why is it your decision...not why are you saying? Kesar e Hind dealt with this and asked the same question
Salve: There is some purpose under Article 145, and there is some meaning behind the powers of coequal constitutional posts. Our constitution provides to have the wisdom of the larger bench of judges.. so this indeed can be heard on maintainability...
Senior Advocate Maninder Singh appears for State of Rajasthan: "where bill has been passed".. it presupposes that legislative exercise is on for some time... Then comes "it shall be presented".. it is a presentation in a legislative process of an outcome of a legislative process.. It says it shall be presented to the governor ... The proviso and provision is independently workable on their own...
Maninder Singh: Presentation followed by declaration are two different events and can be worked out independently without proviso, and the proviso is hybrid in nature. The second part of the provision creates a negative effect...
Singh: For the assent is followed by a negative stipulation... Moment there is an obligation to present it afresh.. the situation when it comes back to the governor.. it again goes back to the first stage. If it is returned again, originally there is no issue of seeking the views of the president ... The recommendation or message sent by the governor now throws up in return to get assent from the president. In the provisio when there is fourth requirement of declaration.
Bench to resume hearing at 2 pm
CJI Gavai cautions against the repetition of similar points
CJI: just because 5 lawyers argue the same point, the point does not become correct.
Singh: The assent here under Article 200 is a legislative act. Governor being part of legislative process.. thus no occassion of issuing mandamus.
CJI: please point out only what is relevant.
Singh: Judicial norm or justiciability is always different when it is about a legislative function. Thus, when there were differing views, the matter had to be referred to a larger bench as has been rightly done.
ASG Vikramjit Banerjee: Constitution does not envisage a concept of deemed assent and thus the same cannot be included by judicial fiat.
ASG: if constitution lays down a process it has to be followed.
ASG KM Nataraj for Orissa and Uttar Pradesh said the reference throws up three issues: whether timelines can be prescribed for the grant of assent, whether failure to act within such timelines would result in deemed assent, and whether the stage before assent can be subject to judicial review.
He stressed that the President and Governor enjoy absolute discretion under Articles 59, 60, 200 and 361, and that this case concerns the period prior to assent, unlike Kihoto Hollohan and Bommai which dealt with post-decision stages. He added that the phrase “as soon as possible” also reflects absolute discretion, and remarked that the judiciary “cannot be the pill for every disease.”
Senior Advocate Mahesh Jethmalani: I have something to say on justiciability and maintainability... What does it mean to withhold assent.... In a monarchial country, it means rejection. Is it the governor who invokes the proviso or is it the Council of Ministers on whose aid and advice he would otherwise act...when timelines are used it is for complying with timelines set by the legislature..timelines are not given for president or governors.
CJI: We are not sitting in appeal over the Tamil Nadu judgment.
Senior Advocate Vinay Navare: Please see Article 253. Even if it's a state subject ...Governor has the power to withhold. Now, please see Article 286. Then comes Article 287.... Apart from repugnancy, there may also be situations where the governor reserves a bill for the president. Otherwise, clause D will be otiose. There can be meaning only if apart from the repugnancy issue, also governor refers a bill to the president
Navare: assembly may be under some compulsion or compelling situation. Then what do we do.? The governor, by not assenting, maintains the balance. Narasimha Rao sometimes said not taking a decision is also a decision.
CJI: Yes, as a constitutional court, we cannot direct.. we can request
Navare: Two persons thinking that I have a solution may not be correct for democracy as it is in the domain of the government only.
Senior Advocate Guru KrishnaKumar: Please see the nature of the office they are looking at. The main part has no time frame. Where there was a need, it is there. I am in the context of "as soon as possible." Temporary Withholding is incidental to the Withholding as there in the main part.
SG Mehta states on the maintainability aspect: I need to get instructions on whether Articles 131 and 32 should be pressed. If yes, would need 20 minutes to submit.
Bench rises.