Centre wants to abrogate fulcrum of Constitution: Karnataka, WB, HP tell Supreme Court in Governors case

Karnataka, West Bengal and Himachal Pradesh governments on Wednesday told the the Supreme Court that the Union government was seeking to "abrogate the fulcrum of Constitution" by questioning the Court's April 11 ruling that prescribed timelines for the President and the Governor to decide on Bills passed by State legislatures..The States, where Congress and Trinamool Congress are in power, also urged the Supreme Court not to fall "into the trap" of letting the Governor become an impediment in the functioning of the Constitution. It was also submitted that States cannot treated as municipalities.The submissions were made before the Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar which was hearing the reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution seeking clarifications with respect to the April ruling.Senior Advocate Gopal Subramanium, representing the State of Karnataka, said that submissions of Union government seek to indirectly abrogate the fulcrum of Constitution which is cabinet-form of government and the responsibility to the legislature. He added that the democratic form of government through cabinet has been held to be part of the basic structure of Constitution."Theory of implied limitation [on powers of President and Governor] was recognized," he added..Senior Advocate Kapil Sibal, representing the State of West Bengal, said that the Court should not fall into a trap where Governor becomes an impediment to the functioning of the Constitution."Constitution is a living document. It owes genesis to history but owes it allegiance to the future and you [judges] are the future because you interpret it. Let us not fall into a trap where Governor becomes an impediment in the functioning of the Constitution. Therefore you will have to say something.... Don't give a timeline but you still have to say that there is no way he can withhold if it is passed again," he stated..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 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..Arguments today.Senior Advocate Sibal, representing West Bengal government, today argued that Governor cannot look into the constitutionality of a bill.When the Court asked whether the Governor can withhold assent if the bill is repugnant in view of central legislation, Sibal said that would be a rarest of rare case."A legislation can be challenged in a court of law by citizens or by somebody else. It’s in the rarest and rare case that a Governor says I cannot pass," Sibal said."Bills and legislations are not introduced like this. Deliberations take place.. like drug control etc. Legislations are not passed at ipse dixit of ministers," he added.At this, Justice Kant said,"Therefore, Mr Sibal, even according to you, the Governor would have to apply his mind at least to find out whether the proposed bill is within the constitutional framework ... 'shall declare' presupposes application of mind by Governor. You can argue what would be contours of that, the other side can also argue what it should it be. Within that framework, neither he can treated as postman nor he can be a super legislative power.".Constitution is a living document. It owes genesis to history but owes it allegiance to the future and you [judges] are the future because you interpret it. Let us not fall into a trap where Governor becomes an impediment in the functioning of the Constitution.Senior Advocate Kapil Sibal.Sibal submitted that any problem the Governor has must be communicated before and once bill is sent, he must assent."All confabulations with Governor may happen before hand and once bill is sent it must be assented to. There may be extraordinary situation to refer it to President but as soon as possible and forthwith must apply to the Governor and the President," he added.Sibal urged the Court not to allow the Executive to interfere with the will of the people. He said Governor is also part of the Executive."Will of the people cannot be subject to executive whims and fancy," he added. Sibal in his arguments did not agree with the submission that the court-set timelines for Governor and President amounted to amending the Constitution."Of course not. You are ensuring the Article (of the Constitution) functions, that constitutional machinery functions, not that you are amending it," he said.Sibal also said if Governor is given a 'personal choice' to assent or not, he would be answerable to no one."If you allow the Governor a personal power to take a decision, neither the Government of India nor the Government of State is not involved. How will [Article] 361 apply when it is the decision of the Governor that I will not give you assent or that I am keeping the bill pending. Government of India cannot defend him. State government is at odds with him. Then how will the writ lie? If you give that to Governor, then he is answerable. Then Article 361 will not stand in the way. You can't have it both ways. You take recourse to Article 361 saying he is not answerable and you give him power under Article 200 and say Governor will not file an affidavit and Court can't issue a process. Then you are making Constitution unworkable," the senior counsel argued.Sibal also commented about the nature of the present reference."No reference in the past is similar to this one... I would request your lordships to be careful when deciding a matter of this nature, dealing with a hypothetical situation in the absence of facts. What is being argued is that the Governor has immunity, he can withhold assent. That your lordships must answer but there are several peripheral issues which are not before you."Sibal added that the Court should not answer many of the questions in the reference and exercise its discretion. "All these questions should not be answered. The only parameter that needs your lordships' careful consideration is Article 200 of the Constitution in the context of the power of the Governor. It is not about maintainability, it is your lordships discretion in the exercise," he said..I would request your lordships to be careful when deciding a matter of this nature, dealing with a hypothetical situation in the absence of facts.Kapil Sibal to Supreme Court.Senior Advocate Subramanium, representing the State of Karnataka, submitted that the principle of cabinet-form of government, which is collectively responsible to legislature, would be violated if the Governor or President are given or endowed with any form of discretion. Subramanium also argued that that the Governor does not have any legislative power. "He enjoys no legislative power. So the question of high constitutional functionary enjoying plenitude of discretion is completely anathema to the Constitution," Subramanium said. The senior counsel also argued that the President and the Governor do not have any kind of discretion for the purpose of dealing with the executive government or the acts of the legislature."The reason why assent is required from President and Governor is because all the executive actions have to be taken in the name of the President and Governor," he added. .Submissions of Union government seek to indirectly abrogate the fulcrum of Constitution which is cabinet-form of government and the responsibility to the legislature.Gopal Subramanium.Subramanium further said the Governor's action to reserve the bill for President also is not discretion as the same is done in accordance with various provisions of the Constitution. His arguments in the matter will continue on next date of hearing..During today's hearing, Advocate Anand Sharma, who appeared for State of Himachal Pradesh, submitted that courts are the final arbiter when it comes to Constitution and that is the strength of the Indian republic. Governors are not viceroys or Governor-Generals, he said, while submitting that they are bound by the aid and advice of the council of ministers. President or Governor has no role to summon the legislature sitting also, he said."Legislature is supreme. Neither the President nor the Governor have any role in law making. Even when they come to address the sessions [of parliament or legislature, they don't preside, they don't chair. They only address," Sharma said.Sharma said that the Governor's office cannot be used to nullify the will of people. He said the States have their own positions in the country and must be protected and respected."States can't be belittled or treated as municipalities," Sharma said. .Previous hearings.On August 19, Attorney General for India R Venkataramani had 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 had 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 had 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..[Read Live Coverage]