The Supreme Court is hearing the Presidential reference case on timelines and procedures for the President and State Governors when considering Bills passed by State legislatures.

A Constitution Bench comprising Chief Justice of India (CJI) BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice Atul S Chandurkar is hearing the matter.

The reference made by President Droupadi Murmu challenges the top court’s top court's April 8 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.

Following the ruling, President Murmu referred fourteen questions to the Supreme Court, raising constitutional concerns about the Court’s interpretation of Articles 200 and 201. The reference argued that the Court is not empowered to prescribe deadlines, and that the notion of “deemed assent” in the event of delay is not contemplated by the Constitution.

The Kerala and Tamil Nadu governments have opposed the reference as not maintainable.

On the other hand, the Central government has supported the reference, arguing that the power of Governors and the President to act on Bills is a “high prerogative” function which cannot be bound by judicial timelines.

During the hearing of the matter on August 28, the State of Tamil Nadu argued that accepting that Governors can withhold assent even to money bills passed by a State legislature would effectively make them a "super Chief Minister" of a State.

This argument was made in response to a submission made by the Maharashtra government on August 26 that the Governor can deny assent even to money bills.

During the hearing on September 2, the Court said its decision in the matter would not be influenced by which political party is currently in power or was previously in power.

During the hearing on September 9, Senior Advocates KK Venugopal and Gopal Subramanium representing the Kerala and Karnataka governments respectively, argued that the Governor has no veto power over bills passed by State legislatures and is bound by the aid and advice of the Council of Ministers.

The Court on Wednesday (September 10) questioned the Central government's argument that false alarm was being raised in respect of Governors' inaction over bills passed by state legislatures.

Live updates from today's hearing feature here.

Solicitor General Tushar Mehta: Making a point from yesterday’s hearing. Yes, it is certain. There is always a declaration made by the Governor in one of the four courses available to him.

According to me, three are correct, subject to Your Lordships deciding it. But there is a declaration. I could lay my hands on one such declaration. I will just broadly place it for Your Lordships’ consideration because of the paucity of time, I could not reach other Governors’ records. The Governor of Manipur has said that there was one Bill which was within the same subject. Nothing turns on that; there was no political difference between the Centre and the State. It was the Manipur Agriculture Produce and Livestock Marketing Bill. The reasons are given in the file notings. There are also exchanges of letters, calling the Chief Minister, calling for some details. But ultimately, the Governor says, I withhold assent from this Bill. So there is a declaration, just to answer Your Lordships’ question.

The second method, I am told, is that so far as the number of the Act is concerned, if it is returned under the first proviso and sent back with or without modification, if that happens in the same year, the same number continues. If it happens within the next year, a new number will be assigned. But when it goes back, it is confined only to that question and nothing more. So the House will deliberate on the question that the Governor has asked. The House is to reconsider only that question

SG Tushar Mehta:...Then why have the Governor? That was the simple argument. One of the arguments was about the promulgation of Ordinances. Please see the language used. I will read whatever is necessary and skip what is already paraphrased. Article 213 says that at any time, except when the Legislative Assembly of a State is in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. If there is a Legislative Council, then except when both Houses are in session.

I am not saying that this has to be read as his absolute discretion. It has to be his discretion, there is no doubt, but that is not my submission. My submission is that while satisfaction is required, it is not my case that it is unfettered. I accept that it has to be as per aid and advice, but there is also discretion even after aid and advice. That is what I wanted to emphasise.

SG Tushar Mehta: The proviso says the Governor shall not, without instructions from the President, promulgate any such Ordinance if certain conditions exist.

Clause (a): where under this Constitution the previous sanction of the President is required for the introduction of a Bill into the Legislature, like Articles 30, 31, etc. Clause (b): where he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President. If it would have been a Bill, despite aid and advice, he would have considered it necessary to reserve it. Clause (c): where an Act of the Legislature of a State containing the same provisions would under this Constitution have been invalid unless having been reserved for the consideration of the President and receiving his assent, like Article 254.

So this makes it very clear that the framers of the Constitution said in the first part, yes, he will act as per aid and advice, as my Lord the Chief Justice rightly pointed out, but he shall not do so if these three contingencies arise. One of the contingencies is where he would have deemed it necessary to reserve the Bill for the consideration of the President. In that case he needs prior instructions from the President even in case of an Ordinance.

SG: Now please come to paragraph 51. It may be pointed out that Article 213 is a power to promulgate Ordinances. The Ordinance is promulgated by the Governor himself. Clause (b) has to be read in context, in view of the nature of the Ordinance and the fact that the Governor is promulgating it. The question of assent under Article 200 will not arise, because there is no question of granting assent where he himself is promulgating.

Similarly, the second option of withholding under Article 200 will not arise, as the Assembly not being in session is a precondition for exercising the power of promulgation. Therefore, the option of returning does not arise either. There is only one option for the Governor, out of the four mentioned in Article 200, and that is referring the Bill to the President for assent. This provision came up before a seven-Judge Bench of this Hon’ble Court in Krishna Kumar Singh v. State of Bihar. The Court held that Article 213 is to be read with these safeguards. Paragraph 231 is relevant. The Court pointed out that situations where the assent of the President is required illustrate the same principle. For example, under Article 304(b) the Legislature of a State is permitted to impose reasonable restrictions in the public interest on the freedom of trade, commerce, notwithstanding Articles 301 or 303, but that requires the previous sanction of the President before introduction. That is one illustration. Another illustration is provided by Article 200, where the Governor is required to reserve for the consideration of the President any Bill which, in his opinion, would if it became law derogate from the powers of the High Court. Situations where the assent of the President is required, like under Article 254, reinforce that such Bills must be referred. The Court said there is a clear recognisable constitutional requirement in such cases.

SG: In my initial respectful submissions, and even during these submissions, there are judgments which say that, irrespective of constitutional provisions, there are discretions available, like calling the minister, calling someone to form the ministry, etc. In all those cases the Supreme Court was very clear that these are only illustrative and not exhaustive. The Supreme Court was clear that circumstances may arise in future where, other than the illustrations given, the Governor may have to exercise his discretion.

I have given the broad parameters within which he will have this discretion. Where the Bill is capable of subverting the Constitution, where the Bill undermines the Constitution, where the Bill erodes the principles of democracy, or where the Bill is of such a character that it has national implications. For example, the Punjab water dispute. Four States were involved — Punjab, Haryana, Rajasthan, Delhi — and there was an international treaty with Pakistan. One Assembly said that it would remove the agreement entered into. Now we are faced with the argument that the Governor has no option and even such a Bill must receive assent. Obviously that cannot be. That would not take away the power of the Governor, because it affects the federal structure, four States are involved, and there is an international treaty in place.

Let me give certain examples. Suppose an Assembly passes a law that it will have a separate force, not called an Army but a force to protect the borders of the State. Or a law that a person belonging to a particular community will not be permitted to trade or do business. These are extreme examples. The Supreme Court has dealt with such extreme examples in the past while interpreting the Constitution, because what Your Lordships decide today will lay the foundation for how the country is governed. The Constitution has to be interpreted with these examples in mind because it must withstand the test of future contingencies. There are many Acts passed today which may not have been contemplated 70 years back.

SG: I gave the example of Mr. Palkhivala, who also used extreme illustrations. Suppose Article 368 is amended to take away the right to vote from a particular class of persons, or confer the right to vote only on a particular class. Or suppose a Government says it will not tax anyone except a particular set of industrialists. These may sound improbable but are possible.

The Supreme Court has examined such extreme situations. Please see page 771 in Kesavananda Bharati. It was observed that if a political party with a two-thirds majority in Parliament for four years could so amend the Constitution as to prevent any other party from functioning, it would establish totalitarianism, enslave the people, and make the Constitution unamendable or extremely rigid. This would invite extra-constitutional revolution. Such possibilities were considered while interpreting the amending power. Mr. Palkhivala gave the example that suppose Article 368 is amended to confer the amending power on the executive, then what. I am saying the same thing here. While answering the proposition that Parliament has unbridled power, the Court has examined extreme situations. We have to keep these situations in mind while interpreting this provision also.

CJI: Constituent assembly expected existence in harmony. Normally provincial governments were taken into consultation before governor was appointed..but now..

SG: Yes harmony existed so far. But the problem started with the Delhi government and with everything, an Article 32 plea was filed..

SG: .... but something shockingly unconstitutional cannot simply be assented to. Suppose a Legislative Assembly passes a Bill declaring that henceforth it will not be a part of the Union of India. Would he return it, would he grant assent, or would he refer it to the President? The only thing that can be done is to exercise that option. I have said, and I am not repeating it, that there have been only 20 such instances in the last 50 years. Withhold is a separate and independent option. I have already argued this. I was only trying to assist Your Lordships on the meaning of the expression ‘falls through.’ What is the consequence of withholding. Does it mean the Bill falls through?

As my Lord Justice Narasimha pointed out, it is not a constitutional term. The Constitution uses the term ‘lapsing.’ Lapsing is a separate phenomenon. Suppose a Bill is moved and the Assembly is dissolved, then the Bill lapses. But withholding is different. Every judgment of the Supreme Court uses the phrase that if the Governor withholds the Bill, it ‘falls through.’ From where did the Supreme Court get these words? If you see the Constituent Assembly Debates, wherever amendments were moved and not accepted, the expression used was that the amendment ‘falls through.’ That is the origin.

So, from the beginning of the framing of the Constitution, the phrase ‘falls through’ was used to mean that if it is withheld, it dies. Larger Benches of the Supreme Court have said in the context of withholding that if a Bill is withheld, it falls through, meaning thereby it dies. That is the limited submission I am making.

SG: There are three categories of cases Your Lordships are dealing with when the Governor’s power is concerned. The first is purely executive power, namely the power under Article 356, the power to grant pardon, etc. That is the first category where Your Lordships have said that there is the power of judicial review. Please do not treat this as an argument of arrogance that you cannot go into it. My submission is that this aspect is non-justiciable as a constitutional proposition

SG: The judgment of this Court in Tamil Nadu says that if the President does not decide within three months or the Governor does not decide within one month, you can come to Court. Now a State comes before Your Lordships. The prayer would be to direct the Governor to grant assent. The question is, can that be done? Can a writ of mandamus be issued to either the President or the Governor to grant assent? The problem does not stop there. Somebody may file a petition to prevent the Governor from granting assent and to refer the Bill to the President because of alleged repugnancy.

Some MLAs may file a petition to prevent the Governor from either granting assent or referring it, but to send it back to the House because, at the time of passage, the Chief Minister enjoyed majority support, which they now dispute. Would Your Lordships then substitute what option the Governor would exercise? If Your Lordships can issue a positive direction to grant assent, then logically Your Lordships can also say do not refer it to the President, do not return it to the House, do not withhold it. That is why, in my respectful submission, such directions are not permissible and the exercise is not justiciable. Otherwise, not only the State Government but also citizens and MLAs can all come. This shows the danger of treating such powers as amenable to judicial directions.

My limited point is whether it would be permissible for this Court, apart from whether it has the power, to deal with situations where there are four petitions raising four different prayers. One says grant assent. One says do not grant assent. One says refer to it. One says return it. Can one constitutional organ issue a mandamus to another coordinate constitutional organ when there is a discretion available, four options exist, and no time limit is prescribed by the Constitution? Where time limits are prescribed, they apply to all three organs. But here, when the Constitution uses the words ‘as soon as possible,’ it is a conscious choice. Let me clarify.

My interpretation is that ‘as soon as possible’ cannot mean endlessly. There is no dispute on that. Empirical data show that in the last 50 years, assent has been given to more than 90 per cent of Bills within one month. Even in Tamil Nadu, except for two disputed Bills, assent was given promptly. The Governor cannot sit over a Bill endlessly. That is not my submission. The phrase ‘as soon as possible’ means that each Bill has to be considered in its own context. Some Bills may require consultation or a collaborative exercise with the executive. Sometimes, despite knowing a Bill may harm the State, the Legislature passes it to calm public sentiment.

In such situations, the Governor may be requested to hold it back till the situation cools down. In other cases, the Governor himself may feel that waiting for two months may allow for suitable modifications. So the expression ‘as soon as possible’ gives that constitutional space for collaboration and consultation. Imposing a rigid one-month or three-month limit would be self-destructive and impermissible under the Constitution.

At the same time, it does not mean that the Governor can sit on a Bill for years. It depends on the facts of each case, and it must be left to the constitutional wisdom of a coordinate functionary rather than binding him with a straightjacket timeline. This is not a case like Vishakha where constitutional silence has to be filled by judicial directions. Here, the words ‘as soon as possible’ are a conscious constitutional choice. If time limits are to be prescribed, that can only be done by Parliament under Article 368, not by judicial interpretation

SG: My last submission is this. Suppose Your Lordships finally decide either fully or partly against me; that is final, that is the law, it binds us. I cannot argue against it. But Your Lordships have the jurisdiction and power to declare that the Tamil Nadu judgment is not the correct law. That is my last proposition. Please come to page 816. This is the 2G judgment where questions were referred by the President. One of the questions was whether a particular earlier judgment was correct law. The Court stated that, although the decision is binding and final inter partes, it still retains the power to overrule the view of law expressed in it.

See paragraph 45. Justice Sawant considered the difference between a decision of the Court and a view of law expressed by the Court. These words are sometimes used interchangeably, but here Justice Sawant consciously drew a distinction. He clarified that while the decree between parties is final, the Court’s inherent power permits overruling of the legal view. The argument that overruling means sitting in appeal over a previous judgment was rejected. It was held that so long as the decree inter partes is not disturbed, the Court may overrule the view of law.

Therefore, my respectful submission is that Your Lordships can say that the Tamil Nadu judgment does not lay down the correct law. That is all I am requesting. I must also place on record my gratitude. This has been an enriching experience. From the queries of Your Lordships and from my learned friends, Mr. Gopal Subramanium, Mr. Singhvi, Mr. Datar, and others, we have all researched and learnt. I am thankful to my team. We are as good or as bad as our team, I thank Kanu Agrawal and I am grateful for their efforts..

AG R Venkataramani: Before I come to Article 200 itself, I want to invite Your Lordships’ attention to a very civil observation by Justice Holmes in a 1907 judgment. He said, great cases like hard cases make bad law. Great cases are called great not because of their importance for the future, but because of some accident of immediate overwhelming interest, which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, before which even well-settled principles of law will bend.

For more than 75 years, Governors have been giving assent within one month in 98 percent of cases. So what was clear has now begun to appear doubtful. I wish Your Lordships apply this instructive advice to see why this reference has come. In Tamil Nadu, an argument was canvassed linking withholding of assent to the first proviso. My understanding is different. The first proviso means that when the Governor is inclined to give assent but feels that the Bill can be improved, he sends it back with recommendations. These are not a withholding of assent but suggestions for improving the Bill. If the House deliberates and chooses not to accept those recommendations, the Governor, already inclined to assent, will then assent. So the first proviso is not to be seen as withholding, but as returning with suggestions. That is why the rules of business and the House rules provide for discussion on the Governor’s recommendations.

When those recommendations are not accepted, the Bill comes back and the Governor gives assent. To treat this as withholding would be a very narrow way of reading the proviso. Otherwise there are only two options: return to the House or assent. This is the difficulty. A large line of judgments say that if it is withheld, the Bill falls through. The President therefore sought this Court’s opinion because there are conflicting views. This is not an attack on the Tamil Nadu judgment, but a request to find the best way to look at Article 200.

AG: The core question is whether Article 200 should continue to remain an important part of the constitutional scheme. If we close our eyes to the scheme, we do not need Article 200 at all. If the Court were to rewrite Article 200 to make it look better, that would not be the Court’s role. Courts can and must read rights into constitutional provisions, but here it is not a matter of rights. It is a matter of the structural design of the Constitution. So the issue is whether Article 200 should remain free from restraints that were never imposed upon it. How will the Governor work under Article 200. My understanding is that the Governor has to evaluate the course of action independently within the four options given. If he finds that assent is possible, he gives assent. If he believes recommendations are necessary, he returns the Bill. If he believes it must go to the President, he refers it. If he withholds, then consequences follow. It is not a matter of discretion under Article 163. Once the Constitution contemplates four options, the Governor must exercise independent judgment within those options.

Therefore, I do not think it is necessary to bring in the word ‘discretion.’ Independent exercise of judgment by the Governor is built into the structure of Article 200. The question is whether we leave that independence intact or whether restrictions are to be judicially imposed.

Justice Surya Kant: You are saying that before the assent, the governor can examine the constitutionality of the bill and that after assent, and it becomes an act, it falls within the realm of the judiciary.

AG: if it's executive power then article 200 will have no value at all.

CJI: SG has argued at length that it is legislative power being excercised by him

AG: The Court will not, through mandamus, enter into matters that comprehend all law-making, namely the enactment of statutes, the making of rules under Article 309 of the Constitution, or regulations. The engagement of the Governor in dealing with a Bill presented to him is already part of the law-making process. Article 200 is part of that process, which begins with the introduction of the Bill in the House and culminates in the Bill becoming law. There cannot be any room for a judicial remedial process here. No lines of demarcation can be drawn between different classes of legislative action.

No citizen will have a right to approach the Court to say that a law must be framed without delay, or that it must be framed in a particular way. If that is so, there is hardly any scope for the State to step in and articulate a cause of action purportedly on behalf of the residents of the State. There are three judgments on this. I am skipping A.K. Roy and Zaki, but kindly turn to paragraph 55 in Supreme Court Employees’ Welfare Association. That case dealt with writ petitions filed by employees of the Supreme Court praying for a pay hike. The Court held that the Chief Justice of India, under Article 146(2), exercises legislative power when he makes rules, and that the President’s approval or disapproval of such rules under the proviso to Article 146(2) is also legislative in character. No mandamus was issued in that regard. The President’s approval under Article 146(2) was seen as a step towards completion of the rule-making process. Likewise, the Governor’s assent under Article 200 is a step towards completion of the legislative process.

The parallels are clear. Now, much emphasis has been placed on the doctrine of parens patriae. The argument has been that the State acts on behalf of the citizens in this capacity. However, selective reliance on judgments has led to a misplaced understanding of the concept. This Hon’ble Court has noted that parens patriae operates only in special situations, where citizens cannot by themselves vindicate their rights. Even then, the Court cautioned that the conferment of power and its valid exercise are two different matters. In Aruna Shanbaug, at paragraphs 58, 126, and 130, the doctrine of parens patriae was again considered. The Court reiterated that it cannot be invoked to give rise to a cause of action where none exists. The doctrine has a limited role, and cannot be used to create a basis for judicial intervention in the legislative process under Article 200

CJI: It has been a very enlightening debate. Thank you very much everyone. Reserved.