Presidential reference on deadlines for Governors: LIVE UPDATES from Supreme Court - Day 2

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 Bench was constituted to decide the reference made by President Droupadi Murmu under Article 143(1) of the Constitution, which allows the President to seek the Court’s opinion on questions of law or matters of public importance.

The Presidential reference challenges the top court’s top court's April 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.

The reference was triggered by the Supreme Court’s judgment of April 8 in a case filed by the State of Tamil Nadu against the Governor.

In the judgment, the apex court ruled that the absence of a time limit under Article 200 to decide on bills passed by the State legislature could not be interpreted to allow indefinite delay.

A Bench of Justices JB Pardiwala and R Mahadevan held that the Governor 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.

“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State,” the judgment said.

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 neither Article contains any express provision empowering the Court to prescribe deadlines, and that the notion of “deemed assent” in the event of delay is not contemplated by the Constitution.

The reference objected to the Supreme Court’s ruling that introduced the concept of “deemed assent” if the President or Governor failed to act on a Bill within a prescribed time. The reference argued that such a concept was contrary to the constitutional framework.

The President’s questions are understood to include whether the Supreme Court can effectively legislate a procedure where the Constitution is silent, and whether timelines for assent encroach upon the discretionary domain of constitutional functionaries.

The reference also underscored that legislative functions are separate from judicial powers, and that directions of the kind issued in the Tamil Nadu Governor's judgment risk upsetting the balance between the three branches of government.

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

According to TN's application, the reference is an appeal in the disguise of a reference and it should be returned by the Court unanswered since the Supreme Court cannot sit in appeal over its judgments.

The State of Kerala too filed an application before the Supreme Court to declare the Presidential 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.

Pertinently, the Centre has also said that Governors are not mere emissaries or outsiders in a State but carry the will of the people of the entire country into individual States.

During the hearing of the matter on Tuesday, Attorney General R Venkataramani asked whether the Court can re-write the Constitution by setting timelines for Governors and the President to grant assent to bills passed by legislatures.

The Court replied by stating that the bench which delivered the April ruling may have felt compelled to intervene because the bills passed by the Tamil Nadu assembly were pending before the Governor for long.

Live updates from today's hearing feature here.

Hearing starts

Solicitor General Tushar Mehta: See how governors were appointed and were given powers as then was deemed fit.

SG Mehta reads Constituent Assembly Debate for Draft Article 131 - Article 155

CJI: You are entitled to read the constituent assembly debates, but see whether the expectations they had were met or not. They envisioned two power centres. One chief minister and one the governor.

CJI: Mondays to Fridays we have 17 supreme courts (17 benches)

SG: on the lighter side there are 32 supreme courts (the judges)

Sr Adv Kapil Sibal : No no

SG: On a lighter note

CJI: You are saying the power of the governor is such that discretion can be used .. but we have seen recent examples where governors have used discretion leading to so many litigations

SG: Indian democracy is a mature democracy and this democracy has worked efficiently under the Constitution of India and i have seen it work perfectly during the COVID period.. a few minor aberrations here and there cannot change it.

SG: Constitutional interpretations cannot be based on aberrations or some of the worst cases.

SG: The other side will harp on this that there was discretion earlier and now done away with in Article 200.

Section 75 of the GoI Act, 1935, is a legislative precursor to Article 200 of the Constitution. Once a Bill is passed by the Provincial Legislature, it provides the Governor, in his discretion, with the following four options at the time when a Bill is presented to him for assent: (i) to declare assent in His Majesty’s name; or (ii) to withhold assent; or (iii) to reserve the bill for the Governor-General’s consideration; or (iv) to return the bill to the Chamber for reconsideration.

Pertinently, the Governor under Section 75 of the GoI Act, 1935 had three options in the substantive part. The Governor, in his discretion, may return the Bill for reconsideration by the Legislature.

There is no mandate to mandatorily assent to a bill, when a Bill which was returned, was presented to him after reconsideration. The Governor retained the authority to veto any bill passed by the Provincial Legislature by withholding assent.

SG: In Draft Constitution Prepared by the Constitutional Advisor, in relation to the procedure for assent to bills to be granted by the Governor, Draft Article 147 was drafted and reproduced hereunder:

“147. Assent to Bills A Bill which has been passed by the Provincial Legislative Assembly or, in the case of a Province having a Legislative Council, has been passed by both Houses of the Provincial Legislature, shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President: Provided that where there is only one House of the Legislature of a Province and the Bill has been passed by that House the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will reconsider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House shall reconsider it accordingly and if the Bill is passed again by the House with or without amendments and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”

CJI: So in effect...if the legislature in the second instance reiterates in the bill, then the governor has no option but to give assent.

SG: yes no option then...

CJI: yes like the collegium

SG: i cannot say anything.

CJI: Yes better stick to the case.

CJI: When subsequent articles were discussed, such as Articles 201, etc, then was the discretion of Article 200 discussed? Because it was stated that...

Justice P Narasimha: timeline has nothing to do with discretion etc

SG: Since I was reading the provision on timeline, i said when condition makers wanted they have given the timeline

Justice Kant: This timeline is for the house and not the governor. There is no dispute with these terms: assent, shall declare, withhold, send to President for advice, may return.. these are the options. The central point of the debate will be what you mean by withhold. Withholding for what? Suppose there is a bill touching parliament's domain under List 1. So the governor can withhold or send it to the President. So issue will arise here...

CJI: If the governor does not send the bill back for reconsideration, it can be withheld for time immemorial.

Justice Narasimha: In the Tamil Nadu case, he said he would withhold the 10 bills, but he did not communicate so.

Bench in discussion

SG: All of us derive our powers from the constitution...

CJI: what if power to withhold the bill comes with power to reject

SG: I will address

CJI: you say if bill is lacking something.. governor need not excercise powers under the proviso and bypass

SG: That is extreme ..we are burdened by the facts of TN case

SG: i will explain...i can see your lordships smiling...

CJI: i always smile. I did not say anything. We can't say.

SG: your smile is an indication

CJI: what to do if God has gifted me with a smile..

Justice Narasimha: Bear in your mind.. there are two places where withhold comes in two places under article 200.. if the power leads to the bill becoming flat . Then you have to say that meaning must be read into the second utterance as well.

Bench to resume proceedings at 12:30 pm

SG: The three-judge bench judgment led by CJI DY Chandrachud, without regard to the earlier 5 and 7 judges, held that the term withhold has to be read along with the proviso in the Punjab Governor's judgment. But if that has to be understood, then the last part will be read as governor shall grant assent

SG: There are political parties in the state which is similar to the same party as in the centre. We are not saying the governor can kill the bill... Political parties will keep changing. I am on the constitutional interpretation of the term "withhold".

CJI: But if the bill is not sent back and passed for 6 months, it lapses.

SG: If the bill is returned as Governor and thereafter if I cannot excercise discretion.. then what should the governor do.. he is not a postman. He represents the union... The one who is not directly elected is no less than someone who is directly elected.

Hearing to resume at 2 pm

SG: I had been a law officer of a state where the state government was different than the central government...these are all plenary constitutional powers vested in high constitutional authorities. Let us not give an interpretation which kills the power.

SG: The post of the president is not of a postman and has to use wisdom.

SG: If this court reads withhold as in the main provision of Article 200 as temporarily decide not to grant assent immediately ..that would be what TN judgment has laid down and as I read.. it is not the correct interpretation

Justice PS Narasimha: When laws were made ideal situations were contemplated.. everyone agreed and speaker was the best adjudicator when 10th schedule was brought into. Conditional interpretations cannot be frozen in time and ground realities are taken into account. If today we decide that we will decide it differently..

SG: ....of which the court has very little knowledge.

CJI: Can the interpretation be static? See the Telangana judgment we have delivered recently .. that time it was not anticipated that speakers will lead to situations where operation successful patient dead but that happened..

SG: But that happens in court also..but when one body cannot function properly does not mean the other body encroaches on it.

CJI: We believe in separation of powers. We have noted that there are riders also whole issuing mandamus to the speaker.

Justice PS Narasimha: Here, judicial review becomes important. It becomes counterproductive to the powers of the governor and the legislative process also. First he can say no.. but he can also say modify this bit. To say don't go back again.

Justice Kant: if you are withholding there comes the point of reasons.. if you have given reasons for the same. .so today you withhold it saying it is unconstitutional.. but later there can be changes made which can rectify it.

CJI: So there is no judgment which says the governor can withhold a bill permanently... The text of Article 200 can be patient materia to 1935 act but there is slight distinction. There was a timeline then..

SG: that was the last option.

CJI; when we interpret Article 200, we should see direct judgments and not on something of the government of India act. Now we have our own Constitution and judgments interpreting article 200.. just restrict yourself to article 200 interpretation..

SG: I can remove the prima facie opinion...

CJI: We understand that you are saying he can withhold it in two ways: one where he withholds and sends it to the assembly, and another where he withholds and is bound by the assembly's reiteration. Additionally, youare suggesting he has the option to withhold it permanently. Your argument is rightly registered by us.

SG: Yes. There are certain provisions I will show where presidential assent is mandatory. In such a situation governor has no choice..thus governor will need that point read into..

SG: Please now come to the Punjab case.

CJI: You are saying it has not considered the binding 5 and 7-judge bench judgments..

SG: yes nothing at all

CJI: so as per you .. withhold permanently or temporarily withhold if you want to resort to the proviso

SG: First option is to assent. Then withhold, and it is permanent. Else, refer to the President. The last option is to send it to the assembly, saying this provision is repugnant, and then the governor can send it to the President again.

Justice Kant: So you are saying if option 2 is accepted, then the last 2 options are defunct.

SG: yes

Justice Vikram Nath: why is the fourth option there as a proviso. And not part of main article 200

Justice Kant: Can option 4 be resorted to after option 2?

SG: No it cannot

Senior Advocate Neeraj Kishan Kaul: Constitution benches have said shall assent, shall withhold, shall refer and then comes the proviso

Justice Nath: For withholding, also there needs to be a declaration

CJI: Withholding and exercising powers under the proviso are two different things right

SG: yes

Justice Kant: So we are Constitutionally interpreting one provision which renders two other defunct.

SG: quite the opposite.