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 a 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. The Court also expressed a doubt over its power and decision to establish timelines for Governors and the President regarding their power to assent to bills passed by State legislatures.
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.
Live updates from today's hearing feature here.
Senior Advocate Niranjan Reddy: It says that the Governor shall reserve the matter for the consideration of the President when the powers of the High Court may be affected. That second proviso is actually a clear indication of the fact that the Governor normally would not have discretion. He would be bound by the aid and advice.
I am making a slightly different point. While it has been said in respect of various other Articles, including Article 200, the second proviso itself is an indication. The earlier part, where the powers of the High Court may be affected, there is obviously no discretion.
Reddy: The point I am trying to make is this. The lack of discretion provided to the Governor there is not indicative of a lack of discretion in all of the Governor’s acts. It is a lack of discretion of the Council of Ministers, who cannot advise something that would affect the powers of the High Court.
Because normally the Council of Ministers will guide the Governor on what steps need to be taken. The Governor is granted a separate exceptional power under the second proviso saying that here you are not governed by the Council of Ministers’ advice. The Constitution itself enables the Governor, under this proviso, that other than the regular procedure contemplated under Article 200, where he is otherwise bound by the Council of Ministers’ advice, here he is not bound. Even if the Council of Ministers says “assent” or “do not send it back to the House,” at the very least he will have to reserve it for the consideration of the President.
Reddy: So the second proviso is indicative of the fact that in the earlier part of Article 200 the Governor has no discretion. Because where they wanted the Governor to prevail, it was specifically provided. The text says: “Provided that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which, in the Governor’s opinion, would affect the powers of the High Court.”
That is where the Governor is now mandated by the Constitution. He shall not assent, even if he is advised to the contrary by the Council of Ministers. His special role prevails over that advice. The scheme of Article 200 is as follows. If the Constitution-makers felt that the Governor already had this discretion, there was no need to expressly provide it in the second proviso.
The very presence of the proviso is indicative of the lack of discretion in the earlier part. That is my submission on the exceptions.
After this, very quickly, I don’t need to go into detail, but in one case the Court examined Section 197 of the CrPC. The question was whether the Governor is bound by the advice of the Council of Ministers even in that context. The Court held that ordinarily the Governor is bound by aid and advice, except where the Council itself is disqualified by reason of inherent bias or conflict of interest involving the Chief Minister or Ministers concerned.
Reddy: At the foot of my note I have indicated that even in statutory spaces, powers may be conferred on the Governor. For example, State legislation provides that the Governor shall act as Chancellor of Universities. There was a case where the legislature in Tamil Nadu wanted to amend the law to remove the Governor as Chancellor and replace him with the Chief Minister.
In such a situation, if the Governor sits on the Bill or sends it to the President, Your Lordships will have to consider the scope of his advisory jurisdiction. But whether a Governor who is otherwise conferred this separate power can then sit indefinitely on such a Bill is a serious issue. If the original intent was that the Governor had absolutely no discretion, then courts must recognise that only in a few exceptional areas have such powers been carved out. These are narrow areas where the Governor may act without the aid and advice of the Council of Ministers, or in a situation where no Council of Ministers has yet been formed.
Reddy: ...after 75 years of the Union continuing to exist, there was, at the time of framing, a lot of tension and worry with regard to forces that might work towards fissiparous tendencies. Therefore, the Indian Constitution aimed to establish a slightly stronger unitary centre. It was envisioned as a stronger unitary centre even then, but concerns remained regarding these issues.
There were areas that were left exclusively to the States. In those areas, at that point of time, they did not want the Governor to have discretion. Looking at the law after 75 years, when such tendencies are no longer as imminent or possible, the necessity of trying to dilute a provision against the States and in favour of the Governor is even less today. Because the Indian Union, by the sheer length of its existence, has gathered strength and stability
Reddy: So when you look at the situational difference between the time the Constitution was made, when they felt you could have a Governor for certain oversight functions to guard against fissiparous tendencies, even then, in the Constituent Assembly, they restrained the Governor’s powers. There is no reason to expand that role after 75 years. That is my submission.
Reddy: Very quickly, in my para 2.14, I have indicated other grounds for consideration as to why an interpretation expanding the Governor’s discretion would not be correct. It would be at odds with the express removal of discretion from Article 200. Reading a discretion into Article 200 would not align with the constitutional provision of Article 163, which requires discretion to be expressly conferred.
The Hon’ble Court has permitted discretion to the Governor and the President only in situations where the aid and advice of the Council of Ministers may not be available, either because of self-interest or inherent bias of the Council of Ministers, or the non-existence of the Council of Ministers immediately after elections, or in a case of a fractured mandate. Another very important submission is this. Both the President at the Union level and the Governor at the State level are part of a Westminster form of democracy. The Governor’s role under Article 200 would be similar.
The only additional point I may add is this. In terms of Union and State, while there are separate carved-out areas, in the democratic setup there is no difference. The democratic form and structure at the Union is no different from that at the State. So if, for any reason, Article 200 is interpreted to give the Governor discretion to withhold assent, it could have a similar ramification for Article 111. Because the President could then equally claim such discretion. It cannot be that in a democratic setup at the Union level there is no such discretion, but at the State level the Governor has it
Senior Advocate P Wilson: The States are celebrating this judgment. That is what I wanted to place before the Court. What has made us come here is the legislative procedure. Article 200 and 201 fall under the heading of legislative procedure. This legislative procedure has to be understood in the context of the Constituent Assembly debates, the rule of law, and the principles and approaches adopted by this Court. Therefore, this legislative process, which Your Lordships are going to interpret, has to take into consideration that the people’s will, through elected governments and representatives, is founded on the hope that they will give good governance within five years.
Wilson: The legislative process should be fair and reasonable, respect State autonomy, support the federal structure, and promote parliamentary democracy. That is what Article 200 is all about, and that Your Lordships also have to look into.
Wilson: If a law is seen in the context of Article 21, where the word “procedure” appears, this Court in Maneka Gandhi has clearly stated that the procedure should be fair and transparent. Similarly, addressing the functions of the Governor, time limits, and methods of handling Bills, including reserving them for the President’s consideration and setting a time limit for the President’s action, all fall within the constitutional framework and within the jurisdiction of this Court. Judicially manageable standards are envisaged in the Constitution. The Hon’ble Court is tasked with ensuring both the procedural and substantive validity of legislation aligns with constitutional provisions. This includes interpreting the relevant procedures clearly and ensuring the effective functioning of constitutional institutions, including the Governor.
This, in turn, enables the upholding of the rule of law and the delivery of good governance. That is very important for the people. We go before the people, we get elected, we come here and form the government, and we have to give good governance. That is very important, and within five years we have to do it. Therefore participation by the representatives of the people is essential.
Wilson: the granting of assent is not an exercise of legislative power contemplated under the Constitution. It is a part of legislative procedure. And whether the procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by this Court. Then, with regard to immunity, at page number 1497, I have referred to Rameshwar Prasad where it was held that immunity available to the Governor does not take away the power of the Court to examine validity. Then, My Lords, I have also extracted S.R. Bommai, where judicial review is a basic feature of the Constitution. The arm of the Court is long enough to reach injustice, and the actions of every highest constitutional functionary are subject to judicial review.
Wilson: And if Your Lordships see State of Rajasthan, I have extracted para 149. The Court held that whenever a question arises as to whether a constitutional authority has acted within or exceeded its powers, it is a constitutional duty of the Court to decide. The Constitution is the supreme law of the land, binding on every organ of the Government: Executive, Legislature, and Judiciary. No authority, however high, can be the sole judge of the extent of its power under the Constitution. This Court, as the ultimate interpreter, is entrusted with the task of defining the limits of power, ensuring that no branch transgresses them, and upholding the rule of law by enforcing constitutional limitations.
Then, My Lords, I have also referred to Raja Ram Pal. That goes to the interpretation of Article 212 and to what extent the Court can go into legislative procedure. If it is illegality, then the Court can always intervene.
Senior Advocate Gopal Sankarnarayanan: A few points I have to make which have not been made so far. I am not repeating anything that has already been addressed. Coming to Article 145(4). This has not been read yet. Article 145(4) says: “Judgments shall be delivered by the Supreme Court in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court.” Please note the word “report.” This is very critical to the entire exercise. The Constitution has, from day one, clarified that what Your Lordships are doing now is not a judgment. It is a report. Because it says no judgment shall be delivered except in open Court, and no report shall be made under Article 143 except as an opinion delivered in open Court.
So the advisory opinion is a report, merely a report. What flows from that is critical for the purpose of answering those 14 questions. This is in fact a recognition of what took place before the Constitution came into effect. The Constitution took Section 213 of the Government of India Act and effectively copy-pasted it into Article 143. The only addition was on questions of fact, which were not considered by the Federal Court in its advisory jurisdiction earlier. So what Your Lordships are doing now is a completely different jurisdiction. Different from Articles 32, 131, 136 and so on. In this jurisdiction Your Lordships are being asked, by citizen number one, for guidance.
Now, the way under Section 213 of the Government of India Act, this was referred to is relevant. And I will show Your Lordships the reason why. If Your Lordships will see Article 374 of the Constitution.
Avani Bansal: So to say, once in this debate between the Legislature and the Executive, the question is this. I say this with respect, that the citizens of India are not sitting ducks. For example, just one illustration. In the interest of time, I will confine myself to one illustration. Let us say I come from an area where, within 100 km, there is no government hospital or no government college. As a citizen in a democracy, I petition the government. I use all my democratic means. The government says yes, possibly. And then it sits with the Governor. Now, the government or the political party in power turns to me and says, we have done what we need to do. At this point, for the next three, four, five years, if that Bill does not pass, then as a citizen, I have absolutely no voice. So it is my proposition that this opportunity before the five-Judge Bench, My Lords, is also an opportunity to perhaps consider that it is time to recognise the right to time as a concomitant right under Article 14.
If the Governors or the President do not act as constitutional functionaries within the time threshold that is required of them, irrespective of specific timelines, because we have “as soon as possible” as a higher threshold, then, My Lords, it is an arbitrary act. And we have a series of judgments saying that arbitrariness and equality are sworn enemies. My Lords, I have referred to a number of judgments. I will just read one. At page number 116, I am reading. Article 14 is described as a vital principle which lies at the core of republicanism and shines like a beacon light pointing towards the goal of a classless, egalitarian, socio-economic order which we promised to build for ourselves when we made a tryst with destiny on that fateful day when we adopted our Constitution. If we have to choose between fanatical devotion to this great principle of equality and a rigid adherence to the letter, we would unhesitatingly prefer to err on the side of the former, against the latter. I have also quoted Maneka Gandhi, where at para 51 Article 14 is said to be in its strictest sense. So, My Lords, my argument is that if Governors and Presidents do not act in time, even if there is no specific timeline, but they fail to act “as soon as possible,” then why, as a citizen of India, do I have no right? In multiple cases we have recognized the right to privacy, the right to media, and other derivative rights.
My submission is that the right to time must also be recognized as a concomitant right. Just one minute to wrap up. My only and last argument is this. The right to time, I understand, is a major argument. It cannot be taken lightly. Because I am requesting My Lords not to merely say something in obiter. I am requesting My Lords to say clearly that the right to time needs to be recognized as a concomitant right.
Senior Advocate Sidharth Luthra: We have supported the union on all issues but to say that Article 32 will not lie in all case by state, that is something which we cannot accept. Because where issues of pollution, man-made disasters, and res sub judice matters are pending, in those situations one cannot say that you should not be going under Article 32.
Hearing to resume post 2 pm
CJI: there are some 17,000 to 18,000 pages before us and we do not have any summer vacations also in between till November 24 (when I demit office)
SG: I would respectfully say, I would not reduce the august jurisdiction of this Hon’ble Court, that is, its advisory jurisdiction, to a mere giving of a report which is not binding and not worth a piece of paper. One will not know your Lordships’ opinion then.
My Lords, this Court has declared, and I make that good, that your Lordships can even declare, I am repeating, your Lordships can even declare that this particular judgment or the view expressed does not lay down the correct law.
Your Lordships can even overrule. It is not a communication or conversation between the President of India and the Supreme Court of India.
The President of India has sought your Lordships’ opinion under Article 143, and your Lordships are interpreting the Constitution while giving their opinion. Kindly come to page 746. These are the broad propositions which are argued, and I will, without repeating anything, avoid any repetition
SG Tushar Mehta: They have argued that he is only a postman with only two differences, that is beacon on his car and has a bigger house. That is the flawed constitutional argument. The Governor therefore is not to apply his mind to the process. So this was an argument made, that the exercise of the Governor is judicially reviewable to the full extent. But I have certain constitutional submissions to make before your Lordships. Some I have already made, and some additional submissions I wish to place. My submission is that it is not amenable to judicial review, and even if it is amenable to judicial review, it is not justiciable.
I will give the reasons in a nutshell. The Governor is not answerable like any other executive authority making any other routine administrative executive decision. This, again with respect, is constitutionally not correct. Because as I will show from the scheme of the Constitution, the legislative process starts from the introduction of the Bill, then how the Bill travels, and it ends with the assent of the Governor. Your Lordships are aware that the Governor is a part, a component of the Legislative Assembly, though with no right to vote and no right to preside, but nonetheless a part of the legislature. The legislative process commences with the introduction of the Bill and culminates in the final step under Article 200 when he gives assent.
SG: The Governor must act within a set time frame as provided for by this Court, absent any constitutional provision to the contrary. I emphasize, my Lords, the oath of office, because your Lordships are considering the powers, functions, duties and responsibilities of the Governor. There is one judgment not so far cited, and as a prelude I would like your Lordships to see which oath the Governor and the President take. These are the only two functionaries for whom a specially defined oath is contemplated in the Constitution. Article 159 states: I do swear in the name of God that I will faithfully execute the solemn office of Governor and will to the best of my ability preserve, protect and defend the Constitution and the law. My first respectful submission is that there are certain implied discretions which I will come to a little later. One of the implied discretions flows from his duty to preserve, protect and defend the Constitution. Now please come to Article 167, quoted at page 747. It shall be the duty of the Chief Minister of each State to communicate to the Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation, and to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for. He can even ask how this particular Government is functioning.
Your Lordships may note why this power is conferred. If the Governor so requires, he may submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but not considered by the Council. He can say that such a decision of this magnitude, affecting the entire State or the economy of the State, could not have been decided by one individual Minister and must be placed before the Cabinet. These are the responsibilities of the Chief Minister of the State. Now in this context please read a Constitution Bench judgment which has not so far been read, the case of B.P. Singhal v. Union of India, page 748, paragraph 35, last line. It says the constitutional position he occupies is that of a high constitutional office with important constitutional functions and duties.
Senior Advocate Kapil Sibal: All this is happening after 2014 only
SG Tushar Mehta: Oh I am praising your government also.. I have cited since 1970
Sibal: you must.. these things have never happened then
SG: I have given empirical data on how Constitution worked.
CJI: We cannot take the data.. it will not be fair to them.
SG: atleast see it.
CJI: We will not go into it. Then we have to unnecessarily go into data ..earlier you objected to their data
SG: ninety percent bills assented to within one month. Only 20 bills reserved so far and which includes these 7 bills.
CJI: we are proud of our constitution.. see what is happening in our neighbouring states.. Nepal we saw
Justice Vikram Nath: Yes Bangladesh also.
SG: He is not an employee of the Government, nor the agent of the party in power, nor required to act under the dictates of political parties. There may be occasions where he has to be impartial, where he has to be a neutral umpire when the views of the Union Government and the State Government are in conflict. Please mark, this peculiar position arises from the fact that the Indian Constitution is quasi-federal.
SG: There is no question of the Union Government having Governors who are in sync with its mandate and policies. Governors are not expected or required to implement the policies of the Government or popular mandates. The constitutional role is clearly defined and bears very limited political overtones. We have already noted that the Governor is not the agent or the employee of the Union Government. As the constitutional head of the State, many times he may be expressing the views of the State Government which are neither his own nor those of the Centre. For example, when he delivers the special address under Article 176, it is always prepared by the Council of Ministers. Governors are reputed eldermen, statesmen, able administrators and eminent personalities with maturity and experience. Some may come from a political background, but once appointed as Governors they owe their allegiance and loyalty to the Constitution, not to any political party. They are required to preserve, protect and defend the Constitution. See the terms of oath or affirmation under Article 159. Many judgments have said this duty has to be read in tune with the oath. Like the President, Governors are expected to be apolitical, discharging purely constitutional functions irrespective of their earlier political background. Governors cannot be politically active. But, my Lords, we should be proud as citizens of this country that the Constitution and the aspirations of the framers have withstood this expectation. I will give empirical data to show that irrespective of the Government in power at the Centre, and irrespective of the Government in power in various States, right from 1970 onwards, Governors, except in a few aberrations, have acted as the Supreme Court has desired them to act. For certain purposes, each State has its own Governor exercising the executive power of that State. But all Governors, although devoting themselves to the service and well-being of the people of their respective States, owe an undivided allegiance to the Constitution. This is where the implied power comes in, in exceptional circumstances, where they cannot follow aid and advice if it is unconstitutional or contrary to the Constitution.
SG: President of India under our Constitution cannot be compared with the British Crown. Mr. Datar even read some judgments that the British Crown cannot withhold, cannot do this, cannot do that. But we will have to understand that our Constitution borrows only the broad skeleton of parliamentary democracy from England. We have not blindly followed. The Crown is hereditary, the son will succeed irrespective of qualification or acceptability.
Whereas our President is elected, elected by the entire nation by way of indirect election because his voters are the elected representatives of the people. He is supposed to act as per the aid and advice of the Council of Ministers, who themselves are elected and are answerable to the Houses of Parliament. The position of the President of India can therefore never be compared with the British Crown. That is my respectful submission.
SG: Position of the highest court of the country cannot be made into a headmaster. Like telling a student, now do this.
SG: Withhold is used in the main part as well as in the first proviso. It cannot mean temporary withholding or temporary deferment in the main part and final withholding in the proviso. I have read that withhold means it falls through. I will come to that.
My Lords pointed out that this is not a word used in the Constitution. My Lords are right, but the word falls through has significant connotation. Even in the Constituent Assembly debates, when an amendment is not passed, they say the amendment falls through.
SG: That is the expression consciously used by the Constitution Bench subsequently, that if it is withheld the Bill falls through, meaning thereby it will not become an Act. Appreciate the distinction that in the Constituent Assembly amendments were not to be approved or assented to. Therefore, if they were not accepted, they used to fall through.
Here there are stages: it becomes a Bill, then if it is assented to, it becomes law, but if it is withheld, the expression used is borrowed from the Constituent Assembly debates, that it falls through. The spirit of the Constitution, according to them as understood by me, is that the Governor has to do nothing, he has to act as per the aid and advice. That violates a very fundamental principle that there are certain implied discretions which the Governor can exercise.
SG: One or two States recently, maybe because of Governors’ inaction or for whatever reason, I am not going into, but that cannot declare a felt necessity to amend the Constitution. Even if a felt necessity is there, the remedy is not to amend the Constitution by a judgment. The argument of the other side on constitutional interpretation, specifically reliance on felt necessities and purposive interpretation, deserves closer analysis. While their submissions appear non-controversial and appealing, there exists an inherent contradiction. Felt necessities and purposive interpretation necessitate a collaborative and effective constitutional role for all authorities.
The doctrine of felt necessities calls for construing the Constitution in a purposive, dynamic and forward-looking manner. Any constitutional interpretation ought not to immobilize one constitutional actor while exalting another. Collaboration is possible if each functionary has some powers and they work together. But if I have no powers and am supposed to act only on what another says, what collaboration, what consultation is there? A living and purposive reading supports a model in which constitutional functionaries engage with each other in good faith to realize constitutional objectives. The felt necessities of our times, including frequent inter-institutional friction, reinforce the need for constitutional practice that enables reasoned consultation and principled participation, rather than a one-sided insistence that any role other than a mere mechanical signature by the Governor is impermissible.
I am suggesting a balance. They are on an extreme argument that the Governor is merely a signatory and can do nothing on his own. At the same time, they also argue that there should be collaborative and consultative exercise. What collaboration, what consultation, if the Governor has to sign without any discretion? This has been going on for 55 years. The Chief Minister is called, the Minister concerned is called, there are dialogues, debates, exchange of views. For example, a popular feeling in the State may require the Legislative Assembly to pass a Bill which even the elected leader knows is not in the larger interest. He might advise the Governor informally to keep it pending till the situation stabilises. He might request the Governor to withhold it. There are several contingencies, several situations, which we cannot identify or visualise in advance.
SG Tushar Mehta: The voter is a very smart voter, whether a doctorate or an illiterate farmer. Nobody can be taken for granted, and that is the strength of our democracy. I always feel proud of it. When Mrs. Gandhi imposed the Emergency, not as a political argument but as a matter of fact, the people taught her a lesson. Not only did the party lose, she herself lost, her government collapsed, they could not manage the administration. The same people within three years returned her with a thumping majority. This is the strength of our democracy. I am not making a political point.
When some names come, it is not always political. I am saying this is the strength of our democracy. We may have aberration. We may have some Governors who may not discharge their functions as expected of them. But in 55 years, as per the empirical data, most have acted the way they were expected to, in a collaborative manner. The best example was during Covid. Except for one or two States, I will not name them, all States, whether Congress Chief Ministers or Communist Chief Ministers, were on the same line. They were directly in touch with the Prime Minister and they were fighting the crisis as a nation..
Justice P. Narasimha (to the Centre): Saying that the moment a Bill is passed by the Assembly, we have to consider its implications. I will not send it, but interpret it in the context of two principles: one is the principle of federalism and the other is the principle of democracy. It is in that context that we have to balance both and understand the full import of the Bill.
Once a Bill is passed by the Houses and comes to the Governor, is there an obligation to ensure that the consultative process is respected? Because when the Bill comes to the Governor, if he sends it back with a message, it gives the Assembly as well as the Government their recognition and role to play.
Consider the perspective of a Governor who may be reflecting the views of the Centre, and the Assembly which reflects the mandate of the people. If it comes back to him, does he then lose the opportunity to send it back again? That was the question. Also read Article 200 with Article 201 together. When it goes back to the President at that stage, he cannot say even in the second round that he will withhold. Basically, when it goes back the second time, the President has to act. The Constitution is beautifully silent here. It only says it shall be presented to the President for his consideration. Does that silence carry much more meaning? That is what I am asking, whether at the outset, the moment the Bill is passed, this obligation is already cast.
SG: if there is already a power existing to amend the Constitution, why should we not permit Parliament to amend the Constitution. The power to amend under Article 368 can also include amending Article 368 itself. Why not. That was the argument. It was a textual argument and quite catchy. Mr. Palkhivala, contemporaneously, gave extreme examples and that turned the table. He said, suppose Article 368 is amended and the power to amend the Constitution is given to the executive. What will you do. Or suppose Parliament were to surrender the sovereignty of India to the Queen of England. What will you do.
Democracy means adult suffrage, every adult will have a right to vote. Suppose Parliament comes out with a Bill that only a particular section of people will have a right to vote, maybe only taxpayers, or only graduates, or only people of a particular religion. Because even in those days, that was one of the considerations during partition. What will you do. So extreme examples were given by Mr. Palkhivala to convey that you are testing not an enactment but the Constitution itself. The Constitution is the fundamental document upon which the nation subsists. Extreme examples are necessary to ensure that the Constitution withstands any future contingency. I was answering Your Lordships’ question. The basic structure doctrine came into existence because of extreme examples. Everything cannot be amended, it is expected.
SG: Suppose hypothetically a Bill is passed. Normally nobody would expect Parliament to pass a law surrendering sovereignty. Nobody would expect Parliament to pass a law taking away voting rights. But such examples were taken to examine whether such amending power exists. I am giving a similar extreme example. Suppose a Legislative Assembly passes a Bill that in my State only one language will be used, people will not speak, use or write anything in any other language. Language is within List II, the State has the competence. But it is not necessary that the Governor will immediately withhold it or refer it. He may call upon the Chief Minister and say, this will destroy your economics, you must reconsider.
I am not on timelines at all. Forget timelines. Your Lordships’ question was whether at the threshold he will withhold. No, it is not necessary that he will withhold at the threshold. He may have a consultative process. He can persuade them. Suppose part of the Bill conflicts with a Central subject. Rather than referring it to the President, he might call the Minister and say these two provisions are problematic, if you agree I can return it to the House, you correct those. .. it is not that at the threshold he has to act. It will have to be after a consultative process and for good reasons. For example, in Punjab he did it but not for good reasons. He must persuade. Sometimes political leadership in the State, that is the Council of Ministers, has its own limitations. Irrespective of the party, they have to take a stand. The Governor, after consultation, may feel this cannot go ahead. He has all four options open. Therefore I would not read the power of withhold as a mere power of temporary suspension or return....
Hearing to resume tomorrow.
CJI: we propose to finish the hearing tomorrow by 1 pm
SG: it will be a collaborative effort