Presidential reference on deadlines for Governors: LIVE UPDATES from Supreme Court - Day 9

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 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.

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.

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: 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 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.

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.

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

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: ...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: 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: 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: 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.

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.