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.

During the hearing on September 2, 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.

Live updates from today's hearing feature here.

Senior Advocate Gopal Subramaniam: In the Constitution, as originally enacted, Article 74 stated that there shall be a Council of Ministers. With the Prime Minister at the head to Aid and advise the president in the exercise of his functions. This court in Shamsher Singh examined the role of the president in the context of Article 74(1), as reproduced above ...The court's judgement was delivered on 23rd August 1974. Subsequently, clause 1 of Article 74 was amended by the Constitution 42nd Amendment Act 76. Following the amendment which came into effect in 1977, clause 1 stated that it Provided There shall be a Council of Ministers with the Prime Minister at the head to advise and aid. The president shall, in the exercise of his functions, act in accordance with such advice. The amendment has made it obligatory for the president to follow the advice of his ministers by doing. So, it endorsed the Judgement of this court in Samsher Singh.

Subramaniam: The functions of the Governor may be identified under governance, performance of executive duties, and the aid and advice of the Council of Ministers. Notably, these functions include giving assent to Bills or withholding assent under Article 200. The power to grant pardon or to remit sentence. The power to make appointments, including that of the Chief Minister, the Advocate General, District Judges, and the members of the Public Service Commission. These are in the category where the Governor is bound to act on the aid and advice of the Council of Ministers. Likewise, the power to summon or prorogue either House of the Legislature, or to dissolve the Legislative Assembly.

The right to address or send messages to the Houses of the Legislature. The duty to cause to be laid every year the annual budget. The power to make recommendations for demands for grants. The power to promulgate ordinances during the recess of the Legislature. These also belong to the same species of functions. Again, the obligation to make available to the Election Commission the requisite staff for discharging its functions under Article 324(1).

The power under Article 333 to nominate a member of the Anglo-Indian community to the Assembly. In certain situations, the power to authorise the institution of proceedings in the High Court. These are illustrations of the functions of the Governor which are to be exercised on the aid and advice of the Council of Ministers. Now we come to the words in Article 163(1).

Subramaniam: That the expression “under this Constitution” does not extend to legislation is also clear from an examination of other provisions of the Constitution. For example, Article 165 refers to the functions of the Advocate General for the State “under the Constitution or any other law for the time being in force.” Similarly, Article 173(c), which deals with the qualifications for membership of the State Legislature, speaks of qualifications prescribed “by or under any law.”

May I therefore submit that the words “under this Constitution” cannot extend to other laws, including statutes. It is further submitted that the judgment of Nabam Rebia has correctly laid down that the Governor cannot be seen to have such powers and functions as would assign to him a dominating position over the State executive and the State legislature.

Subramaniam: The written submissions of the learned Solicitor General are self contrary here. It is suggested that the President of India may, in certain circumstances, in his discretion, dismiss the Prime Minister and the Union Council of Ministers, or dissolve the Lok Sabha. It is also contended that these powers extend to Governor, and that the President may, in his own wisdom, determine whether to assent to a Bill reserved by the Governor.

It is further suggested that the President, in making a reference to this Court under Article 143, may act in his own discretion, and that if he so wishes, he can always refer the matter further to this Court. It is also said that the President and the Governors ensure that both the Union and the State Governments operate within the parameters set by the Constitution, balancing autonomy with oversight. With respect, this is not correct. The President and the Governor are not placed above the Prime Minister or the Chief Minister. That, I thought, must be clearly stated. It is respectfully submitted that the submissions advanced on behalf of the Union, in respect of the powers of the President, do not accurately reflect the law as laid down by this Court in Shamsher Singh. They are also contrary to the express words of Article 74(1) of the Constitution.

The President of India, who is a constitutional or formal head of the Union, must perform his functions on the aid and advice of his Council of Ministers. While the proviso to Article 74(1) enables the President to require the Council to reconsider its advice once, he is then obliged to act in accordance with the advice tendered after such reconsideration. The President is not empowered to exercise discretion while making a reference to this Court under Article 143. In any case, there is absolutely no question of the President having discretion to dismiss the Prime Minister or other Ministers, or to dissolve the Lok Sabha.

Subramaniam: Discretion, which was enjoyed under the 1935 Act, must not creep into the interpretation of the Constitution. Now, in paragraph 45, the Governor is not conferred with many discretions. Under Article 200, the Governor is bound to act in accordance with ministerial advice while deciding whether to assent to, withhold assent to, return a Bill to the House or Houses for reconsideration, or reserve a Bill for the President’s consideration. The sole exception is found in the second proviso to Article 200, which entitles the Governor to exercise discretion in reserving any Bill for the President’s consideration, if in the opinion of the Governor the Bill would derogate from the powers of the High Court so as to endanger its constitutional position.

Now, the next point is whether this power to assent is a legislative assent by the Governor. Article 200 is not a legislative power. The Governor is a part of the State Legislature under Article 168. However, the assent of the Governor under Article 200 is not a legislative power. The act of assent is, quintessentially, an exercise of executive power of the State which could have characteristics of a legislative act. He is the head of the executive, and he also acts as the head to declare a Bill to be a law. That declaration under Article 200 is to declare that a Bill has become law.

Chapter IV of the Constitution specifically provides for legislative power. The sole provision under this chapter is Article 213, relating to the power to promulgate an Ordinance. Even this legislative power to promulgate Ordinances is exercised on the aid and advice of the Council of Ministers. A seven-Judge Bench in Shamsher Singh clarified that all other powers of the Governor are executive powers. Even if Article 200 falls under the sub-heading of “Legislative Procedure” in Chapter III, a Bill needs to be approved by all components of the State Legislature to have the force of law.

Since all executive power of the State is vested in the Government under Article 154, the Governor’s assent represents, in form, a certification on aid and advice in relation to a Bill passed by the Legislature. Even though the Governor is a part of the Legislature, Article 158(1) expressly precludes him from being a member of the House. He is not entitled to participate in the proceedings of either House. He has no right to vote or to participate in deliberations. The right of the Governor to address and send messages to the Houses under Articles 175 and 176 is exercised only on the aid and advice of the Council of Ministers. Similarly, the Governor’s powers under Articles 200, 201, and 257(1) are also exercised on ministerial advice.

Subramaniam : Namely, it is possible that a Cabinet may also say that this touches upon the jurisdiction of a High Court and therefore request that it be sent to the President. That is why, in a sense, it could also be covered by Article 200. But not in the way taken by Chief Justice Ray, that this is a duty on the Governor. It is because of the words “shall not assent.” He drew inspiration from those words “shall not assent.” So there is an obligation on the Governor not to assent in respect of a Bill which trenches upon the jurisdiction of the High Court.

The Union submits that the Governor has an unqualified discretion to effectively veto Bills by withholding assent. With respect, this is not correct. Veto is a well understood expression in constitutional law. It is not necessarily to be equated with withholding assent. It is contended by the Union that the first proviso provides an independent source of action. In my respectful submission, that is not only inconclusive but also erroneous. On a plain reading of the proviso, any interpretation that confers upon the Governor an unqualified power of veto is antithetical to the existence of elected State Legislatures under the Constitution. A Governor is only entitled to withhold assent on ministerial advice for the purpose of returning a Bill to the Houses for reconsideration. And if the Bill is passed again by the Houses, the Governor must then assent. The first proviso requires the Governor to return a Bill for reconsideration as soon as possible after its presentation for assent. The words as soon as possible impose a constitutional obligation of urgency and expedition, so that a Bill is not held up for indefinite assent. The constitutional mandate to act as soon as possible necessarily implies the mandatory character of that action.

To grant the Governor any discretion would render this constitutional expression meaningless. The distinction between withholding of assent and the first proviso is further evident from the expression the Governor shall not withhold assent therefrom appearing at the end of the proviso. The first proviso begins with a constitutional mandate to the Governor to return the Bill to the House for reconsideration in case assent is withheld in the first instance. Then, after the Houses deliberate and decide whether the Bill should be passed again, if it is so passed, the Governor is mandated to assent.

This implies that the initial withholding of assent is conditional and linked to the duty of the Governor to necessarily return a Bill for reconsideration as soon as possible, followed by the duty of the House to reconsider and pass the Bill if it so wishes, and the corresponding duty of the Governor to necessarily assent if the Bill is passed again. The Union of India has relied on the word may. But please, forget that for a moment and look at the entire scheme.

Subramaniam: It is not a correct position to assume that a judgment can be overruled by the President. It has to be done through the normal adjudicatory process. There is a very important question. What happens to Article 141? What happens to Article 145(3)? If Your Lordships see Article 145, except Article 143, all the other Articles from Article 32 onwards right up to Article 147, they all deal with the powers of the Supreme Court.

All the powers of the Supreme Court are adjudicatory, except for Article 140. Meaning, the Supreme Court has complete powers, and will not those powers have to be read with Article 32? Article 32 itself cannot be written off for any purpose.

So, 32 +142 +141 +144 + 139. There is a provision in our Constitution where Your Lordships have what are called ancillary powers provisions. So it is a unique institution, endowed and blessed with enormous power to be able to administer law, and also ensure that complete justice is done having regard to the facts of a particular case.

Subramaniam concludes.

CJI: you are so comprehensive that we don't have anything left to ask.

Senior Advocate KK Venugopal begins

Venugopal: The first proviso uses the words “as soon as possible.” “As soon as possible” cannot be forgotten. The use of the expression “as soon as” implies that there has to be promptitude in action. To do a thing “as soon as possible” means to do it within a reasonable time, with an understanding to do it within the shortest possible time. It has been explained that “as and when” and “as soon as” are almost synonymous. Whenever these expressions are used in respect of time and place, they do not import an indefinite notion. Both are to be understood as allowing reasonable time, but the latter is stricter than the former. The hallmark of both expressions is that “as soon as” may be said to mean “as soon as practicable.” It has to be done with promptitude. It cannot mean “as soon as convenient.”

And therefore, My Lords, I would proceed on the basis that it should be forthwith. The reason I say it should be forthwith is because even money Bills, which are the most urgent, necessarily have to be dealt with responsibly. Even if the phrase “as soon as possible” was not there, along with the other provisions, the Governor would necessarily have to deal with money Bills immediately. Non-assent in human terms would mean dependence of the State. There is no question of his having any right to withhold assent to a money Bill. The Constitution itself makes that clear. Therefore, according to me, there are five choices. One, to reserve the Bill for consideration of the President, which is covered by express provisions of the Constitution in certain cases. Second, to treat it as a money Bill. Third, to grant assent. Fourth, to send it back to the Legislature. And fifth, to withhold assent.

CJI: You are supporting the Solicitor?

Venugopal: To an extent, yes, since the Governor plays a collaborative role in granting assent.

Venugopal: Can we imagine money bills be withheld for a few months even when salaries have to be paid. So there is an element of urgency here

Venugopal: Reserving powers of the president available only when laws requires his assent. So far as governors are concerned they are collaborative not in bad sense CJI: They are supposed to be friend, philosopher and guide..

Venugopal: How can a governor be treated as an adversary? He has to go along with every bill since he could be a part of the process by sending messages to the house when it was being discussed thus he was already in the knowhow of the bills and thus does not need much time to study the bills.

Venugopal: Governor does not sit in an ivory tower and take months to study a bill etc.

Venugopal: If the president has to act in aid and advice of the Union Cabinet, there is no reason to withhold assent, and if it's done, then the bill is killed. If so reasons are to be given which can be adjudicated upon. Governor has no power to withhold assent after discussing bills with ministers.. Article 163 will be used to forthwith ask for assent and if it's withheld still it is then a matter of judicial decision. He is not an adversary but is accountable to people.

Sr Adv Arvind Datar for State of Punjab: My submission is that the Governor has no discretion. He has only three options. His discretion is limited to choosing one of the three options. And the first question referred in the Presidential Reference is on the Governor’s options. Even in Questions 1 and 2, in the reference, the options of the Governor are under consideration. My submission is that Article 200 uses the words “as soon as possible.” Much has been said about it. I have found that it has been used in seven places in our Constitution. “As soon as possible” is also used in Article 225. It has been used in 200 to 240 statutory provisions. But most of them are in the form of “as soon as possible, lay before the Legislature” or that kind of phrase. So I don’t want to get into the substance of all those. It is seven places. Now, my submission is that it has already been pointed out that “six months” was replaced by “as soon as possible” in the Assembly. Earlier it was “six weeks,” later it was replaced by “as soon as possible.” Now, why was this phrase used? I am just putting my proposition for Your Lordships’ consideration. Because the kinds of Bills that come before the Governor may be of multiple types. They could be a simple amendment Bill which doesn’t require much time. It can be approved the very next day itself, or the same day. On the other hand, there could be a complex Bill which may involve matters falling under the Union List, or which may involve matters of parliamentary law already in place. There the Governor may need some more time. So “as soon as possible” doesn’t mean an infinite amount of time. It depends on the context of the Bill. For example, a simple amendment to some sales tax law doesn’t take more than 10 minutes. But if the Bill is complicated, he can take a week or two, he can consult the Advocate General or take such opinion as is necessary. Now, my submission is that to accept the stand of the Union is to result in a constitutional paradox. And why I say that, Your Lordships may kindly see Article 200. The argument is that the Governor can withhold assent indefinitely. In my respectful submission, that cannot be correct. Assent must be read with the proviso. Withholding assent is only for the time taken to prepare a message. My humble submission is that this is the only possible interpretation. Because withholding is like a pause button, saying “let me look at the Bill.” Is there something for which the Governor wants to make a recommendation? Does he want to give a message? Please kindly see the proviso to Article 200.

CJI: Like Article 111, if president sends bill to parliament and the bill is sent back the president has no power but to assent and same follows for governor?

Datar: Absolutely.. the governor is not a constitutional filter. If it is back then assent has to be granted.

Arvind Datar: When can you refer it to the President? What has happened now is that this is being routinely built in, essentially enabling the President, and in that case it can indefinitely delay. My submission is that the scope of Article 200, that last part of reserving it for the consideration of the President, has to be read with Article 213. That is not there in my note, My Lords, but just look at Article 213. I thought about it over the weekend, I thought about Article 200 and Article 213. Ordinance making power is in 213. Now, if at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. So pause there for a minute. Whose satisfaction is it? The satisfaction of the Governor, or the satisfaction of the Council of Ministers? My submission is, it is the satisfaction of the Governor.

Hearing to resume at 2 pm.

Court resumes after lunch.

Datar continues with his arguments.

Datar: In the case of an ordinance they governor is cast upon a duty not to promulgate it if certain conditions are met. A bill is not repugnant. At the bill stage there is no repugnancy. If it becomes law then it can be struck down. The president or governor can warn and say look this could be the consequence if the legislature goes ahead with it.

Datar: The governor only has options he has no discretion. That’s my submission. Suppose a bill is potentially repugnant to a parliamentary law in list 3. Can the governor say he’ll not assent to the bill because it’s in the teeth of the law? He can say this is going to derogate the powers of the president and hence I’m referring to the president.

Datar: The State of Tamil Nadu wants to make a law which potentially could be in the teeth of a law made by Parliament. But it wants to have that legislation for the State of Tamil Nadu. What will it do? It will tell the Governor that this is the bill I am raising, this potentially may be in conflict with the existing Parliamentary law, it could be an Industrial Development Regulation Act or Essential Commodities Act and so on. Then the State Cabinet tells the governor, please refer this for the assent of the President. When it goes to 254 (2), if the President gives the assent to the bill, then so far as Tamil Nadu is concerned, though it is inconsistent with the law made by Parliament, it will be valid law for that State.

Datar: No governor in the country can be a constitutional filter. At the bill stage. It can be good law or bad law. I have to take that risk. To say that the State legislature can make any law if the governor does not check is only a chimera it’s a mirage. This is my interpretation of Article 200.

Datar: If a timeline is felt to be necessary, Courts can do so...

CJI Gavai: In SC ST Act, there was no timeline provided for applications. But the Court said that 5 years time period is to be given.

Datar: The effectiveness of a law is certainty and predictability. Supreme Court has imposed timelines from time to time in statutory provisions.

Justice Narasimha: But constitutional provisions are different….

Justice Narasimha: We are not saying that there is no requirement of expediency in legislative processes. But to fix a time limit is a risk that is taken by the Courts.

Datar: If “as soon as possible” was not there, then it was a different cup of tea. There is a law. Which is the statute. There is an interpretation put by the statute. Ultimately the statute says something the Court interprets that Statute. This need not be Article 142 power at all.

Justice Vikram Nath: Even if as soon as possible was not there, still the Governor would be expected to act in a reasonable time.

Datar: When the constituent assembly put as soon as possible, they contemplated a definite timeline.

Justice Vikram Nath: So if there is some emergency, then the Governor should act in 24 hours?

Datar: May be. If it’s an emergency situation. The governor has to respect that mandate of the people. Your lordships can impose a timeline. If your lordships can go so far as to bring substantial due process in Article 21, then why not this? Bank nationalisation case…

CJI Gavai: Maneka Gandhi case also.

Datar: Yes. Many cases like that. All governors must give assent within 3 months. If they don’t the litigant may go to Court. There is no reason to feel upset about it.

Datar: If the law is implemented the way it was intended it leads to congruence else it leads to dissonance.

Justice Narasimha: To exercise a constitutional power reasonably is inherent in the power itself. It need not be superimposed.

Datar: To lay down timelines for effective working of the constitution is a discharge of constitutional trust. Not taking decision is also a decision. Once the bill is presented, if the Supreme Court has imposed a standard I think it’s completely in consonance with constitutional values. Otherwise the cabinet system fails.

Datar: The jurisdiction under Article 143 is only to answer a question of fact or law referred to this Court by the president. It is not to evaluate the correctness of an earlier judgement. If the judgement is wrong then the remedy is Article 368. Article 143 is not a constitutional method to bypass Article 368.

Datar: A presidential reference, in this case, we are basically testing the correctness of a view taken by a Bench. Indirectly you’re making an intra court appeal when there is none. You can’t do it with Article 143. It either goes by the Dawoodi Bohra route or the constitutional amendment route.

Datar: Under Article 143, questions of fact and questions of law can be answered. Which the president had a doubt. All the 15 references until now have been questions of law. If the Supreme Court has delivered a judgement on a statutory provision or a constitutional provision, then that is the law declared under Article 141. If a particular Bench has framed an issue and answered that question, then the question of Article 141 does not arise because the President has to follow that judgement, that’s all.

Justice Vikram Nath: You did not come to argue on maintainability. We have already heard that.

Datar: We are considering a question on reference jurisdiction. What is the meaning of 143 - questions of fact and questions of law.

Datar: Once a judgement is delivered, the only way it can be challenged is through a constitutional amendment. If it's on a constitutional provision. In Indira Sawhney, the 50% reservations in jobs was done away with through an amendment. They said the reservation will not take into account the carry forward rule. There are multiple cases where two or three judge Benches have heard matters relating to constitutional interpretation. Article 145(3) over the years is not taken as a necessary mandate.

CJI Gavai: But when a specific reference is made to the Bench….

Datar: Suppose tomorrow, I file a WP filing a particular provision. I raise an objection saying it should be heard by five judges, it should be a case involving a substantial question of law. I am only saying let’s not create a situation where everything will wait for five judges. I don’t want to go on this fear psychosis.

Datar: The court in this case has not struck down some great constitutional provision by two judges. A question has to be framed that whether a substantial question of law should always go to 5 judges. That may be a serious problem in the long run.

Datar: The Constitution does not provide for everything. Supreme Court has said Constitutional convention also amounts to Constitutional law. Article 111 and Article 200 are mirror images. If there is a convention under Article 111 to approve the bill as soon as possible, the same should apply to Article 200 also. What President is for the Centre, Governor is for the State.

Datar: If a convention is applied to Article 111, then the same convention should be applied to Article 200. What convention applies to one provision must also apply to a para materia provision of the Constitution. Therefore, as far as the reference is concerned, the questions should not be answered under Article143.

Datar ends his arguments.

Senior Advocate Niranjan Reddy: It was clear that in Constituent Assembly debates, no one supported the discretion power of the governor.

Senior Advocate Reddy: It starts with good faith doctrine first.. it cannot be presumed that State legislature is unaware of the Constitution. It knows that it needs assent of the governor.

Hearing to continue tomorrow.