Presidential reference on deadlines for Governors: LIVE UPDATES from Supreme Court - Day 6

Sibal: They are saying that the sovereign act of the legislature need not be implemented by the executive. For the first time, your lordships will hold any the will of the people will not be implemented because the Governor does not want it. It can’t be. The executive at no stage have any legislative power. The president also has no individual function. If at all, the governor has 2 functions. One is 356 but that’s also a recommending provision. That question has to be addressed first. Let’s forget about case laws. This is constitutional law. Give me one power of the governor by which he can thwart legislation.

Senior Advocate Kapil Sibal: Broadly, my submissions- if you look at 200,201, the question is what’s the nature of the power exercised by the governor under 200. Is it legislative or executive? What’s the power of the president under 201? Is it his personal power or on the aid and advice of the CoM? This is a constitutional conundrum that your lordships will have to face.

Singhvi: You have a collectivity of public interest and parens patriae, and indeed, because the state is otherwise remedy-less. So 226 does not bar 32.

Singhvi concludes his arguments.

Justice Nath: Coming to timelines, if one does not stick to the timeline, then deemed assent will be given by the court. So this court will be part of the legislative process.

Singhvi: After having given a judgment on the law, your lordships do not whisper a word on the merits of the bill.

Justice Nath: So the options that the governor under 200 is not exercising at all.

Singhvi: Then your lordship is saying he can hold on to the bills for as long as he wants.

CJI: that’s not the question. But whether that power is there under 142.

Singhvi: There is no issue of separation of powers. In fact, one of the TN bills is already under challenge before Justice Nath’s Court.

Singhvi: Justice Joseph’s judgment in the Election Commission case is an example of a general timeline. The 3-month guideline is a general norm for the 10th schedule after the judgment. A combination of a timeline coupled with a consequence is the best solution for the time.

Singhvi: A 200-day delay is not met by either a 226 in an individual bill case or a 32. It takes minimum of a year. What’s the point then? And in the case of 226, it is 3 years. The governer then has 3 years. Then the governor becomes a pocket veto, a super chief minister.

CJI: 143 appears to be that you are imposing on the President. Saying that the president ought to take….

Singhvi: 3 months is enough for all the timelines given. After that there is the option of referring to the president.

CJI: every week we receive so many letters from district judge and trial judges. The court has asked to complete the trial within a certain time. They say they can’t conclude it. The governor is to make a decision within a reasonable period.

Singhvi: deemed assent is the further follow up.

Justice Nath: why only deemed assent? This court can just get into the shoes of the governor and consider all three options he has.

Singhvi: that’s not a correct analogy.

Justice Nath: individual cases can always be examined. You come here. The court will examine the bill and take a decision.

Singhvi: that was the way these cases were born. It is found that the delay is repetitive. Your lordships is certainly on an ivory tower.

Singhvi: 200’s structure is completely amenable to timelines. There has to be an amendment to the Constitution, of course, that’s the ideal thing. In Manipur, Telangana, the court had to intervene. My lord recognises that, despite no constitutional amendment, this Court can fix timelines. If a bill-by-bill approach is followed in 200, then the object of putting a timeline will be negated. And answering Justice Vikram Nath’s question. There has to be a consequence attached to it. And that is deemed assent. It could be contempt.

Justice Narasimha: If we lay down the timeline and it is not followed, then what?

Singhvi: it’s not a standard paradigm. A general timeline is amenable to the structure 200,201.

Justice Nath: then it is amending the constitution basically. Including these timelines in 200,201.

Singhvi: If the court were to limit time limits for individual cases…

CJI: There could be different factual considerations.

Singhvi: a 200,201 necessitates a general timeline.

Justice Nath: what happens if the timeline is not followed?

Bench resumes after lunch

Singhvi continues his arguments.

Bench to resume proceedings at 2 pm

CJI: Can SC under Article 142 lay down a straight jacket formula for the president OR the Governor to exercise their powers

Singhvi: unless there is an express fetter

Singhvi: The Reference is in the context of a judgment here. We are not on appeal here. The word "ought to" here is used for prudence...

Singhvi: This court takes into account the lived realities and felt necessities of time.

CJI: Our decisions are based on interpreting the constitution. Our decision is not based on which political dispensation was in power or not.

Justice Narasimha: our decisions are not based on all of this

Singhvi: can we ignore the Tamil Nadu case... 1257 days delay for some bills....then

Singhvi: Suppose there are states other than Tamil Nadu and AP

SG: If we travel down this dirty path, I am also willing to do so.

Singhvi: Threats do not work ...He is preempting my submissions. You are threatening to show that all bad governance is traceable to 1947..

CJI: this cannot become a platform for political battles.

Singhvi: I am relying heavily on the judgment of this court which went against me .. the Telangana case.

CJI: Constitution framers would have never imagined courts to be powerless with speakers not deciding.

Singhvi: The Governor cannot withhold assent, kill a bill or be a judge in this. He is not the final arbiter or the super chief minister... Ultimately, allegedly unconstitutional bills are passed every day, and courts will decide that. Even if majority introduced it courts will see it.. that is separation of power

Singhvi : Article 361 protects you from civil criminal action but there is no bar of judicial review against decisions you have taken at all.

Singhvi: If governor and President are exempted from judicial review then their jurisdiction of power is stretched beyond limits and antithetical to separation of power

Singhvi: If the constitution makers have given the power of judicial review and have given it so protected and within the basic structure, then the same is respected.

Singhvi: Courts are smart enough to know which is a no-go area and where they can intervene. These are self imposed limitations..ofcourse there are minor aberration like the one in Allahabad..

CJI: Do not cite individual instances otherwise, the other side will have to reply

Singhvi: The court is doing the job to maintain the supremacy of the constitution... That is the job that is being done by this court.

Singhvi: On justiciability... Judicial reviews hit the decision taken. The provision in Article 361 is much narrower. Else, if you see, the USSC had interpreted that the US president can also grant a pardon to himself.

Singhvi: There is no procedure for falling through other than Article 200 and lapse of the bill. That's all.

CJI: Is a second-time reservation of a bill permissible or not?

Singhvi: If the bill is returned to the assembly, it can still fall through. There is a separate head for withholding assent like this, and if it's done..then Constitution will be turned on its head

Singhvi: Reconsideration by house is the one, then comes re passing by the legislature...and then return it to the governor.

Singhvi: Falling through occurs unless the first proviso is completely followed.

CJI: They say it holds it back without sending it back.

Singhvi: yes we say falling through does not happen like that. First proviso is complete code in itself. It includes withholding and returning, and it is a telescoped composite set.

SG Tushar Mehta: If they are going to rely on examples of Andhra Pradesh etc.. we would like to file a reply on this. Since we need to then show how Constitution was taken on a joyride since it's inception.. let us see if we want to travel down that dirty path.

CJI: we are not on individual cases but interpreting provisions of the Constitution

Senior Advocate Abhishek M Singhvi: Let us begin now

Singhvi: Reconsideration by house is the one then comes re-passing by the legislature...and then return it to the governor.

Singhvi: Falling through occurs unless the first proviso is completely followed.

CJI: They say holds it back without sending it back.

Singhvi: Yes, we say falling through does not happen like that. First proviso is complete code in itself. It includes Withholding and returning back and it is one telescoped composite set.

SG Tushar Mehta: If they are going to rely on examples of Andhra Pradesh etc... We would like to file a reply on this. Since we need to then show how the Constitution was taken on a joyride since its inception.. Let us see if we want to travel down that dirty path.

CJI: We are not on individual cases but interpreting provisions of the Constitution.

Senior Advocate AM Singhvi: Let us begin now