The Supreme Court on Thursday concluded hearing the reference made to it by President Droupadi Murmu under Article 143 of the Constitution, seeking clarification on the Court's April 13 ruling regarding deadlines for Governors to act on bills passed State legislatures.

The Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar began hearing the reference on August 19 and concluded the hearing today after a lengthy hearing which lasted for 10 days.

The Court is likely to deliver its opinion on the reference in next two months as CJI Gavai retires on November 23.

During the last hearing today, CJI Gavai remarked,

"I publicly say that I am a strong believer in doctrine of separation of powers and though judicial activism has to be there, it should not turn into judicial [adventurism] but at at the same time if one wing of the democracy fails in discharging its duties, would the Court - which is the custodian of Constitution - be powerless and sit idle."

In response, Solicitor General (SG) Tushar Mehta, appearing for the Central government, said 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.

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.

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.

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 are 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.

Arguments today

Solicitor General Tushar Mehta today submitted that the way the Court decides the case will determine how the country is governed.

"The Constitution will have to be interpreted by the harshest of examples," he 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.

The SG also questioned whether a writ of mandamus can be issued to Governor and President. Someone can file a petition asking that Governor be asked to refer the bill to the President, he added.

"There can be some MLAs who may file a separate petition asking that Governor be prevented from granting the assent ... because when the bill was passed, the Chief Minister was enjoying the majority confidence. If your lordships have the power of granting a positive mandamus, your lordships can also say don't refer it to the President, don't return it to the house, don't withhold it. Therefore, this exercise is non justiciable," Mehta said.

"Would it be possible or permissible for this Court to deal with such situations," he asked.

At this, Justice Kant said there would be a difference in asking the Governor to take a decision within his prerogative and asking him to do something in a particular manner.

However, Mehta said the question would still be whether a constitutional organ can issue mandamus to another co-ordinate constitutional organ when there is discretion available and no timeline is prescribed.

In his final submission in the rejoinder, Mehta argued that the Constitution Bench in the present reference can declare that the judgment in the Tamil Nadu case is not the correct law. In this regard, he referred to the 2G case reference.

"The Court said that while inter party the decision is binding and final, there is still power to overrule the view of law expressed in it," he said.

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.

"So the issue is whether Article 200 should remain free from restraints that were never imposed upon it. How will the Governor work under Article 200. My understanding is that the Governor has to evaluate the course of action independently within the four options given," he submitted.

Previous hearings

On August 19, AG Venkataramani questioned the Supreme Court's April ruling, asking whether the Court can re-write the Constitution. He submitted that the top court in the verdict had looked at the President as an "ordinary statutory authority".

On August 20, the Court observed that if a Governor is allowed 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.

In the following hearing on August 21, the Court asked whether it should be helpless when a Governor stalls a bill for years. On August 26, the Court made similar observations.

Tamil Nadu government on August 28 argued that accepting that the Governors can withhold assent even to money bills passed by a State legislature would effectively make them a "super Chief Minister" of a State.

On September 2, the Court said that its decision on the Presidential reference concerning the Governors' powers over the bills passed by the State legislatures would not be influenced by which political party is currently in power or was previously in power. It also asked about the consequences of the Governor and the President not following the timeline set by the top court.

Karnataka, West Bengal and Himachal Pradesh governments on September 3 submitted that the Union government was seeking to "abrogate the fulcrum of Constitution" by questioning the Court's April 11 ruling.

On Tuesday, Kerala government argued that the Council of Ministers of a State can compel the Governor of the State to grant assent to a bill if he chooses to withhold it despite discussions.

On Wednesday, the Court questioned the Central government's argument that a false alarm was being raised in respect of Governors' inaction over bills passed by state legislatures.

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