In a judgment that could reignite the debate surrounding federalism and Governor's role in State affairs, the Supreme Court on Thursday held that the directions in its April 8 judgment that set timelines for Governors and the President to grant assent to bills passed by legislatures are incorrect and against the Constitution and separation of powers.

The Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar held that the timelines set by the previous judgement as well as "deemed assent" to bills in case of non-adherence by President or Governor to such timelines, amount to usurping the powers of the Governor/ President by the Court and the same is not permissible.

"The imposition of timelines is strictly contrary to the elasticity that Constitution has preserved. The concept of Deemed assent in the context of Articles 200 and 201 presupposes that one Constitutional authority, namely court, could play a substitutional role for another Constitutional functionary authority - the Governor or President. Such usurpation of gubernatorial powers of governor or president is antithetical to the spirit of the constitution and the doctrine of separation of powers. The concept of deemed assent of pending bills amounts to virtually takeaway of role of another Constitutional authority," the Court held.

The Governor's role to grant assent to bills under Article 200 cannot be supplanted by another authority by way of deemed assent, the Bench made it clear.

Pertinently, as a consequence of the above conclusion, the Court ruled that the discharge of functions under Articles 200 and 201 by the Governor and President are not justiciable, meaning they cannot be challenged before Court.

Judicial review and scrutiny can be involved only once the bill becomes law and not before that, the Court underscored.

"It is unfathomable to suggest bills can be brought to court rather than being opined on under Article 143 as referred by the president under advisory jurisdiction. President need not seek advice of this court every time when bills are referred to him," the Court said.

The Court can only step in when there is an inordinate and unexplained delay and this has to be done based on each individual case.

"Not everything will lead courts to issue automatic directions to act and it has to be measured based on appropriate circumstances and this courts can issue limited directions in terms of constitutional accountability," the Court held.

The Court also added that Governors cannot act as a super Chief Ministers and there cannot be two executives within a State.

In a nutshell

- No timelines can be prescribed for Governor or President to act with regard to bills passed by State legislature;

- There can be no deemed assent to such bills on the ground that the Governor/ President failed to act within such prescribed timelines;

- Actions of President/ Governor with respect to a bill cannot be agitated before Court;

- Action before Court/ judicial review will lie only when the bill becomes law;

- If the Governor does not act within a reasonable timeline under Article 200, then constitutional court can exercise limited judicial review. Courts can then issue a limited direction to Governor to act under Article 200 within a reasonable time limit, without making observation on merits of discretion.

Background

The judgment was delivered on a reference made by President of India Droupadi Murmu under Article 143 (1) of the Constitution of India.

Article 143(1) of the Constitution allows the President to seek the Supreme Court’s opinion in matters of legal and public importance.

The Presidential reference questioned the April 11 judgment passed by a Bench of Justices JB Pardiwala and R Mahadevan in State of Tamil Nadu v The Governor of Tamil Nadu & Anr. 

In that verdict, the apex court held that Governors must act within a reasonable time and that constitutional silence could not be used to stall the democratic process.

The Court in that judgment noted that there is no expressly specified time limit for the discharge of the functions by the Governor under Article 200 of the Constitution.

However, it added that Article 200 cannot be read in a manner which allows the Governor not to take action upon bills which are presented to him for assent, and thereby delay and essentially roadblock the law making machinery in the state.

Therefore, it went on to prescribe the following timeline for Governor's actions.

1. In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such action forthwith, subject to a maximum period of one month

2. In case of withholding of ascent, contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months.

3. In case of reservation of bills for the consideration of the President, contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months.

4. In case of presentation of bill after reconsideration, in accordance with the first proviso, the Governor must grant assent forthwith subject to a maximum period of one month.

Failure to comply with this timelines would make the inaction of the governor subject to judicial review by the courts, the top court said.

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.

Inaction within the prescribed timeline will result in a deemed assent by the Governor with respect

Following the ruling, the President referred fourteen questions to the Supreme Court, raising concern over the judgment's interpretation of Articles 200 and 201.

Among the questions referred were whether the Supreme Court can create procedural mechanisms in areas where the Constitution is silent and whether imposing time limits encroaches upon the discretionary space constitutionally granted to the President and Governors.

The top court then set up the Constitution Bench for answering the reference.

Solicitor General (SG) Tushar Mehta, appearing for the Central government, argued that the executive and legislature also are custodians of Constitution. Issuing a mandamus with regard to legislative discretionary function of a co-ordinate constitutional functionary (in this case, the Governor) would violate the theory of separation of powers, the SG added.

To buttress his argument that Governor has the power to withhold assent, Mehta submitted that refusal of assent would be the only option if say, a State legislature passes a bill to declare that the concerned State would not be part of Union of India. He said that the same would be an example of a "shockingly unconstitutional" bill to which the Governor can deny his assent.

Mehta also submitted that the States, particularly Delhi government, approaching the Court is only a recent phenomenon. He added that otherwise the system has worked with harmony.

Attorney General for India (AG) R Venkataramani argued that it would not be the Court's role to make Article 200 look better.

"Courts can and must read rights into constitutional provisions, but here it is not a matter of rights. It is a matter of the structural design of the Constitution," Venkataramani said.

AG added that independent exercise of judgment by the Governor is built into the structure of Article 200.

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