Is court helpless if Governor refuses to discharge his duty? Supreme Court to Centre in Presidential Reference

Will courts be powerless to act when a Governor sits over a bill passed by a legislature for years, the Supreme Court asked the Central government on Thursday.

The Court posed the question in response to the Central government's argument that Governors can refuse to act on bills sent to them for their assent by State legislatures.

The Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar was hearing a reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution in relation to the Court's April ruling that prescribed timelines for the President and the Governor to decide on Bills.

"If particular function is entrusted to the Hon'ble Governor and if for years together he withholds it, will that also be beyond that scope of judicial review of this Court when this Court has set aside the constitutional amendment itself which had taken power of judicial review that 'no amendment should be called into question by this Court'. It has been found to be hitting at the Basic Structure of Constitution. With those judgments, can we say that howsoever highest the constitutional authority may be and if it does not act, still the Court would be powerless?" CJI Gavai asked.

In response, Solicitor General (SG) Tushar Mehta, representing the Central government, said that the solution lies in the political sphere.

"There are certain problems which are not solvable by judiciary. There are to be solved by political democratic process. When such a thing happens, we have to expect and accept that there are constitutional functionaries who are responsible and responsive because they are answerable to people everyday and at least five years," Mehta said.

At this, CJI Gavai remarked that the Governor is not answerable to anyone. However, Mehta said he holds the most vulnerable office as the Chief Minister can go to Prime Minister or the President.

"Such things do happen. When Governor sits over it, the political process takes over. Governor can be called back. Some other person can go as Governor. Why cannot we trust other constitutional functionaries," he added

The Presidential reference pending before the Court has questioned 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.

The April ruling was rendered by a Bench of Justices JB Pardiwala and R Mahadevan in The State of Tamil Nadu v The Governor of Tamil Nadu & Anr. In that verdict, the apex court 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 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.

On Tuesday, the Court heard arguments on maintainability of the reference. On merits, Attorney General for India R Venkataramani questioned the Supreme Court's April ruling, asking whether the Court can re-write the Constitution. He submitted that top court in the verdict had looked at the President as an "ordinary statutory authority".

On Wednesday, 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.

The Court made the remark when SG Mehta argued that the Governor under Article 200 of the Constitution can withhold assent to a bill, making it "fall through" with no option to send it back to the legislature.

"Would we not be giving total powers to Governor to sit in over appeal. The government elected with the majority will be at whims and fancies of Governor," CJI Gavai remarked.

Arguments today

Solicitor General Tushar Mehta today argued on the aspect of Court prescribing timeline for clearances of bills by Governors and the President.

Mehta questioned whether one constitutional authority can prescribe a time limit for another constitutional authority

"Wherever the Constitution has thought it appropriate, the timeline is provided," Mehta said.

He added that the Court's decision to prescribe timeline by placing reliance on Punchi and Sarkaria Commissions was not correct. Mehta further contended that the Court cannot add or supplement words to the statute.

"And even if the Court were to do it, Court can suggest that we recommend or we suggest," he said.

In this regard, Mehta also highlighted P Ramachandra Rao v. State of Karnataka in which Supreme Court held that time limits for criminal trials cannot be prescribed.

"In case of decisions of the nature which Governor or President takes, they are polycentric decisions. They are not ticking the boxes that 'yes, complied with...'. They may choose to call the Chief Minister, they may take some other consultative process to ensure there is no impasse. There may be several reasons for delay," he added.

Justice Narasimha said that if the Court cannot specify a time-limit, there must be some way in which the process works out.

“The question is, isn't there an outer limit at all. Can the Constitutional interpretation be left to a vacuum… Though you can’t specify a time limit but at the same time, there must be some way in which the process works out. Can it be a situation where not acting on a bill which is sent to the Governor itself is a fullstop, no further. Is it?”

SG Mehta said the Court may rightly be pained at the lack of timeframe but cannot confer on itself the jurisdiction to prescribe the same. The Court is not flooded with such cases of inaction, he added.

"The remedy lies with the parliament... The practical answer is the political answer. Suppose a particular Governor is sitting on a bill, there are political solutions. Solutions are taking place and it is not everywhere that State is advised to rush to the Supreme Court. The Chief Minister goes and requests the Prime Minister. Chief Minister goes and meets the President... such impasse is solved," Mehta further submitted.

Mehta urged the Court to consider that such issues have been arising for decades. He added that political statesmanship would always be at play to solve any impasse.

"Therefore, at the cost of making a little unpleasant argument, I am saying, every problem in this country may not have solution here. There are problems in the country for which you must find solutions within the system," he submitted.

Mehta also said a justification can never confer jurisdiction.

"The separation of powers, I am saying without mincing words, must be a two-way street," he added.

CJI Gavai remarked that if there is a wrong, there has to be a remedy. Mehta said that all problems in the country cannot have a solution in the court.

"As the custodians of the Constitution... this Court is a custodian of the Constitution. Suppose a constitutional functionary which is entrusted with certain functions refuses to discharge those functions without any valid reasons, whether the hands of Constitutional Courts would be tied and say that 'no, we are powerless'?," CJI Gavai then said.

Mehta said each organ is a custodian of the Constitution and the Court cannot legislate. CJI Gavai then asked whether the Court cannot go into the constitutional debates to find the intention behind enactment of the provisions.

When Justice Kant said power of interpretation vests with the Court, Mehta reiterated that timeline cannot be prescribed by the Court.

"Adding words or amending the constitution itself is something else," he added.

Justice Narasimha remarked that when an extreme view is taken, it cannot be a justification to argue that no view be taken at all by the Court.

Mehta also submitted that the Court cannot prescribe in what manner a Constitutional functionary is to exercise his power. He also argued that the President and Governor's powers in respect of the bills are not justiciable. He relied on judgments holding that assent given to a bill is not justiciable.

At this stage, CJI Gavai pointed out that question is of Governor withholding assent for an unlimited period. Adding to it, Justice Kant said,

"Here the question is of decision making process and not the decision taken ultimately.... that process can be examined by Court within the ambit of judicial review."

Mehta then argued that his concern is that there would be multi-level challenges in relation to exercise of power by Governor and President under Article 200 and 201 of the Constitution.

When Mehta argued that these issues only can have a solution in the political sphere, Justice Narasimha said there would then be a constitutional logjam. Mehta reiterated that every logjam may not have a solution with the judiciary.

"The Court would be holding its hands that it is non justiciable," Mehta said

CJI then remarked,

"Under Article 200, if we hold that the Governor has an unlimited power to withhold for time immemorial, what is the safeguard for a duly elected legislature. Suppose a legislature which is elected by say 2/3rd majority unanimously passes bill. Then if he (Governor) does not exercise the proviso, it will be making the legislature totally defunct... The Act is always subject to challenge..."

Mehta said the solution would an amendment of the Constitution but till then, political process is the way out.

During the hearing, Justice Kant remarked that the Tamil Nadu case was reverse case.

"The complaint was [that] action was not being taken," the judge said.

At this stage, CJI Gavai said suppose a Governor sits over a bill for four years, what "happens to the democratic setup of the government, the will of the 2/3rd majority of the legislature of the State".

In response, Mehta gave an example of delay in deciding cases by courts. He asked whether a citizen can approach the President of India saying his trial is pending for 10 years and the sessions judge is not taking up the matter even though the offence is only punishable only with seven years of imprisonment, would the inaction on part of judiciary empower the President to declare that he has undergone the sentence.

"It may not be comparable example but this is how separation of power [works]. This presupposes that every problem will have a solution ultimately at the doors of the Court and political solutions, democratic solutions are no solutions," he added.

CJI Gavai said the Court was not dealing with only a hypothetical problem.

"We are having petitions from at least four States," the CJI said.

In respect of the President's question on whether it was permissible for Courts to undertake judicial adjudication over the contents of bill which has to become a bill, CJI remarked there may not be any conflict between the parties or counsel over the answer.

"We will have to leave all other work and only devout ourselves to giving advice to the Hon'ble President," the CJI added.

On the aspect of deemed assent in the Tamil Nadu verdict, Mehta asked whether the Court can substitute itself in place of another constitutional functionary.

"Deemed assent would mean your lordships substituted your lordships as the Governor and your lordships declared that the assent is deemed to have been granted," he added.

Mehta said Article 142 of the Constitution cannot be used to amend the Constitution.

On the question of whether the Constitution bars any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India, CJI Gavai said,

"We know what happens to Article 131 suits... In West Bengal case, issues could not be framed... but you know the kind of petitions we have faced under Article 32."

Senior Advocate Kapil Sibal said the question need not be answered "in this fashion". CJI Gavai also said it can be answered at a later time.

Mehta responded that the question has been framed by the President and he would have to seek instructions regarding it.

"I cannot withdraw," he said.

Senior Advocate Neeraj Kishan Kaul, representing the State of Madhya Pradesh, also made brief arguments today. The arguments in the matter will continue on August 26, Tuesday.