Presidential reference on deadlines for Governors: LIVE UPDATES from Supreme Court - Day 3

SG:.. in toto, the constitutional text, federal logic and judicial exposition confirm that the Governor’s determination under Article 200 is a wide, discretion-driven and essentially non-justiciable power. It is without a doubt, controlled by conventions of constitutional statesmanship and the embedded federal-unitary balance.

Matter to resume at 2 pm

SG: This court has the power of judicial review but degree of justiciability will vary. One organ cannot arrogate function of a other.

Justice Narasimha: see you are on two extremes.. one is just because one view is taken.. you cannot make any view at all Can that be done

CJI BR Gavai: No, no, but if there is a wrong, there has to be a solution. This court is an organ of the constitution... If a constitutional functionaries does not discharge functions without valid reasons.. should the court say we are powerless and hands are tied!

Justice PS Narasimha: Interpretation can be there..

SG: but that cannot lead to timelines.

Justice Kant: With the power of interpretation vested in.. can it not be done?

SG: Suppose a governor is sitting over bills, there are political solutions. There are delegations to the Prime Minister, to the President and the impasse is solved. But that does not confer jurisdiction to lay down a timeline! Such issues are arising in many states. Statesmanship, political maturity is at play.

Justice PS Narasimha: Okay, we cannot specify a time limit, but a process needs to be worked out...how can it be that the bill is not acted upon... How long can that be a dead end?

SG: that is what.. what you are pained at is justification for laying time limit but justification does not confer jurisdiction..

SG: Can one constitutional authority prescribe a time limit for another constitutional authority? Constitutional framers were conscious that some functions need timelines while others don't need them.

SG reads Shamsher Singh vs State of Punjab: In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers. Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State.”

SG: Where the Constitution expressly provides for the same – For example, Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2) and 18(3) of the Sixth Schedule; b. c. d. e. Where the legislative intent emerges from the interpretation of any provision of the Constitution – like the powers under Articles 200, 356 or the power to dismiss the government which has lost confidence but refuses to quit, as has been mentioned in the Report of Justice M.M. Punchhi Commission and as have been concurred by a 5-Judge Bench of this Hon’ble Court in the Nabam Rebia case supra; Where the Constitutional Courts specifically declare that certain functions ought to be exercised by Governor on his own; Power to summon or prorogue the House of Legislative Assembly under Article 174 when there are strong reasons and material to show that the incumbent Chief Minister and his Council of Ministers seem to have lost the majority of the House; Situations or matters where the bias is inherent in the aid and advice of the Council of Ministers like in the case of the grant of sanction for prosecution of Council of Ministers.

SG: This Court has carved out an exception to the general rule of the aid and advice, which is not expressly stated in the Constitution; however, it is in consonance with the intent of the framers of the Constitution of India and also with the scheme of functions and powers of the Governor provided therein. A reading of the judgments discussed below and other provisions of the Constitution of India would show that, inter alia, the following are the exceptions to the general rule of aid and advice

SG Tushar Mehta: Of late, Milords.. You cannot take voters for a ride.. Voters ask what is due..

CJI: who said this

SG: I am saying like earlier times.. voters cannot be taken for granted.

CJI: We have always said judicial activism cannot become judicial terrorism.