Can Supreme Court rewrite Constitution? Attorney General in Presidential reference case on Governor's powers

Attorney General for India (AG) R Venkataramani on Tuesday questioned the Supreme Court's April ruling that set timelines for Governors and the President to grant assent to bills passed by legislatures, asking whether the Court can re-write the Constitution.

AG Venkataramani was arguing before the Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar during the hearing of the reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution.

"Can the court go to the extent where it says let me take pen and paper and rewrite the constitution," Venkataramani asked.

The Court replied by stating that the bench which delivered the April ruling may have intervened in the Tamil Nadu case because the bills were pending before the Governor for long.

"See the egregious situation where it had come to.. it was to remedy that situation that the court stepped in.. the bills were pending for so long," Justice Narasimha said.

The Presidential reference questions 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.

A Bench of Justices JB Pardiwala and R Mahadevan in The State of Tamil Nadu v The Governor of Tamil Nadu & Anr 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, it had said.

Following the ruling, the President referred fourteen questions to the Supreme Court, raising concern over its 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 by Attorney General and Union government

AG Venkataramani today argued that the top court in Tamil Nadu case entered into the legislative domain. Venkataramani said Article 143(3) of the Constitution requires a bench of Supreme Court to see that if the issue before it involves a substantial question of constitutional interpretation and whether it should be referred to five judges.

At this, CJI Gavai said the Court would then have to sit till 12 into the night to hear cases.

"So you are saying first matter should be seen as to whether there is substantial constitutional questions or not. If that is the case then Mondays and Fridays.. the volumes of cases which come to us...," the CJI remarked.

Justice Narasimha also posed a similar query.

"The question - 'Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India' - You cannot ask this in advisory jurisdiction... you are asking us an opinion and opinion can be polyvocal," the top court judge said.

Venkataramani further argued that the top court in Tamil Nadu case had looked at the President as an "ordinary statutory authority" and entered into the area of regulation-making. He also questioned the top court view that when a Governor reserves a State bill for the consideration of the President, the latter must seek the Court's advisory opinion.

Article 142 cannot be used to create a new edifice ignoring constitutional statutes, the AG argued further.

On the delay by the TN Governor to clear the bills, Venkataramani said he was not going into the facts of the case. He added that the question in the reference was whether Court could have entered into the arena at all.

Solicitor General Tushar Mehta, appearing for the Union government, submitted that all problems may not have a solution in the court of law.

He urged the Court to examine Articles 111 (assent to bills of Parliament), 74 (council of Ministers to aid and advise President), 155 (appointment of Governor), 163 (council of Ministers to aid and advise Governor) and 200-201 (assent of bills of State legislature and bills reserved for consideration) to address the reference.

Mehta submitted that there was a timeline prescribed for assent to bills earlier but it was consciously done away with by the constituent assembly.

"It was deleted for good reasons since the power was entrusted upon highest constitutional functionary," he added.

Mehta will continue his arguments on Wednesday.

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