The Presidential Reference on 14 questions referred by the President Droupadi Murmu concluded on September 11, after 10 days of hearing.

A five-judge bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing the reference made a month after the Tamil Nadu judgment was delivered wherein, a bench comprising Justice JB Pardiwala and Justice R Mahadevan declared 10 Bills as having got "deemed assented" noting the Governor acted mala fide in sitting over Bills, the oldest pending since 2020, and then reserving it for the President after they were re-enacted by the Tamil Nadu State Assembly.

The two-judge bench laid down timelines, stating that the President must decide on the reserved Bills within three months, and if the Governor decides to withhold assent or reserve for the President upon the aid and advice of the Council of Ministers, he must choose forthwith within one month. If the Governor reserves the Bill for the President's consideration on grounds of patent unconstitutionality, the latter ought to seek the Court's advice under Article 143. It was also held that the actions of both the President and the Governor are amenable to the Court's jurisdiction. 

During the 10 days of hearing, Attorney General for India R Venkataramani, Solicitor General Tushar Mehta, Senior Advocates Harish Salve(for Maharashtra), Siddharth Luthra (for Andhra Pradesh), Maninder Singh (for Rajasthan), Mahesh Jethmalani(for Chhattisgarh), Additional Solicitor General KM Nataraj (for Orissa and Uttar Pradesh), Neeraj Kishan Kaul, and Additional Solicitor General Vikramjit Banerjee(for State of Goa) argued in favour of the reference. 

Senior Advocates KK Venugopal (for Kerala), Gopal Subramanium (for Karnataka), Kapil Sibal (for West Bengal), Dr Abhishek Manu Singhvi (for Tamil Nadu),  Arvind P Datar(for Punjab), and S Niranjan Reddy (for Telangana) argued opposing the reference.

Here is the summary of the brief arguments led by the parties:

• Can the Court sit in intra-Court appeal over Article 143 jurisdiction?

Union: By taking support from the 2G reference, the Union argued that although the two-judge bench judgment in the Tamil Nadu Governor's case is binding on the parties, nothing prevents the Court from holding that the view of law expressed is wrong. It was submitted that the Court can even overrule a previous decision because it is doing so by exercising its inherent jurisdiction. Since "functional disharmony" has arisen as there is no authoritative pronouncement in this matter, the Court can decide the case for once and all.

States: States argued that the issues raised in the reference are more or less settled issues of law after the Tamil Nadu, Punjab and Telangana judgments, and the Court can't sit over appeals in advisory jurisdiction because the law laid down in these judgments is binding under Article 141. It also raised why the Union neither filed a review nor a curative. 

States like Tamil Nadu and Kerala raised preliminary objections that this reference is nothing but an "appeal in disguise". A reference in this regard was made to the Cauvery dispute to support their arguments. The State of West Bengal also argued that the issues raised in the reference are vague and general, unlike any other reference made in the past, where only specific issues were raised and the Court was not asked to opine based on the likelihood of something happening in the future. 

Court: On Day 1, the Court clarified that it would express its view on the law and not sit as an appellate court over the Tamil Nadu judgment.

• Is the nature of powers exercised by the Governor executive or legislative under Article 200?

Union: Union argued that the Governor exercises legislative powers under Article 200.

States: It was argued that the Governor is a part of the legislative process because under Part VI, from Article 196 onwards to Article 200 is named as 'Legislative Procedure'. But he does not exercise legislative powers. 

• What options do the Governor have in Article 200?

Union: This is one specific issue where the arguments are more or less different from counsel to counsel. The Union and the Attorney General endorsed the "four-option theory".

As per this four-option theory, the Governor can either grant assent, reserve it for the President in case of repugnancy, etc, or withhold the Bill in which case it lapses. 

It was argued that there was a fourth option by which the Governor can return the Bill to the Assembly for curable defect. If he exercises this option and if the Bill is returned to him unmodified or not upon his satisfaction, he can still exercise the power of reserving the Bill for the President's consideration.

States: States opposing the reference argued that the Governor does not have four options. He has limited options, and in choosing those limited options, he is not exercising discretion but performing a "constitutional duty". 

As per States, the Governor can either grant assent or withhold assent therefrom or reserve the Bill for the President's consideration. If the Governor decides to withhold the Bill, it has to be necessarily accompanied by an act of returning it to the Assembly as per the Punjab Governor's judgment. That is, withholding is either an independent option or a veto can be exercised where the Governor simply withholds the Bill. 

Court: Court was interested in how a balance can be created so that both the functions of the Governor and the State Assembly can be recognised in this process. But it also questioned the proposition that the Governor can withhold outrightly is difficult to accept because what is at stake is both the principles of federalism and democracy. 

• Do Governors have discretion?

Attorney General: Attorney General argued that the term discretion was there in the Government of India Act, 1935, but the constitutional framers deliberately deleted it because Article 163 says that the Governor exercises discretion both explicitly and implicitly.

Union: Union argued that the Governor has discretion as he is not a "postman" and is not bound by the aid and advice of the Council of Ministers because, in cases such as involving repugnancy or requiring sanction to prosecute the Chief Minister, either the assent will not be given or the assent will be biased. 

States: States more or less argued that the Governor has no discretion under Article 200 because he is a "titular head", and wherever there is discretion, it is explicitly provided. While States like Tamil Nadu and Karnataka argued that the Governor is bound by aid and advice rendered by the Council of Ministers even when the Bill is reserved for the President, the State of West Bengal argued that the "inherent evidence" suggests that the Governor exercises some independent application of mind while exercising this option of reserving the Bill for the President. 

Court: The Court had orally remarked that it has experience with how the Governors have exercised discretion, leading to inordinate delays. 

• Can Governors indefinitely sit over bills, including money bills? Is there a declaration when the Governor withholds the Bill? 

Union: The Union maintained a clear stance that the Governor can withhold the Bills, including Money Bills, permanently because there may be instances of repugnancy, or something "atrociously unconstitutional." Union argued that technically, the Governor is not withholding the money Bill because it can only be introduced upon the recommendation of the Governor under Article 207.

Union presented empirical data, although it was not accepted, that in the last 55 years, only 20 Bills have been withheld by the Governors. It also said that the States are now raising "false alarms". On declaration, it was argued that the Governor has to make a declaration in all cases. 

States: States vehemently disagreed on these points. All States unanimously argued that the Governor can't withhold even if there is repugnancy because the Governor is not a judicial reviewer. It was also argued that the reliance on Article 207 is wrong because the provision was to prevent a private member from introducing a financial bill. 

Court: The Court questioned how the Union could say that the States are raising "false alarms" when Bills keep pending before the Governor for three to four years. It asked whether allowing the Governor to sit over bills indefinitely would make the elected Government at the Governor's whims and fancies. It said that the two-judge bench's directions may have been intended to handle an "egregious situation" created by the Tamil Nadu Governor. It also asked what the constitutionally permissible recourse for a Constitutional Court is in such situations where Governors indefinitely sit over Bills.

• What happens when the Bill is withheld? Does it fall through?

Union: It was argued by the Union that when the Governor exercises the option of withholding, the Bill falls through, as held in Valluri judgment. A reference here was made by the Union that the word has been inspired by the Constituent Assembly debates, that whenever an amendment was moved and it was rejected, the amendment falls through. Bill falls through means the Bill dies, or it lapses. 

States: It was disputed by the States that Bill falls through 'unless' the procedure in the proviso is followed. The proviso says that the Governor, as soon as possible, after the presentation of the Bill for assent, return the Bill to the Assembly with a message that the Bill may be reconsidered. 

Secondly, the States argued that the Bill falls through not at the hands of the Governor but by the State Assembly when the Bill is returned by the Governor with a recommendation to make some improvement but the Assembly does not return the Bill to the Governor for assent.

Court: The Court had also remarked that Valluri says the Bill falls through 'unless' the procedure in the first proviso is not followed.

• When can the Bills be reserved for the President?

Attorney General: Attorney General had argued that the Tamil Nadu judgment "robbed" the President and the Governor of application of mind by stating that when the Governor reserves the Bill for the consideration of the President on grounds of patently unconstitutionality, the latter ought to approach the Court in advisory jurisdiction.

Union: It was argued by the Union that there can't be a straightjacket formula, but if the Bill is repugnant to the central law, the Governor can't assent to the Bill. He can either withhold the Bills or reserve them for the President's consideration. Union referred to the Punjab water dispute reference, and said that this was a perfect example where the Governor should have withheld. 

States: States argued that if the Governor has to reserve the Bill for the President's consideration, he has to do it at the first instance. He can't do so after the Bill is returned to the Assembly, and then when it is sent back to the Governor, he reserves it for the President's consideration. It was argued that 'withholding assent' can't be interpreted to mean that after the Assembly sends the Bill back to the Governor, he then can't withhold the assent, but can still exercise the option of reserving it for the President's consideration. 

• How soon is 'as soon as possible'? Can timelines be laid?

Union: Union argued that in the Constituent Assembly debates, there was a timeline of six weeks under Article 111 for the President to give assent, but it was consciously done away with by an amendment made by Dr Ambedkar and 'as soon as possible' was substituted. It was pointed out that attempts were made to make 'as soon as possible' to 'as soon as not later than six weeks' or 'as soon as may be', but it was rejected.

Union also argued that wherever the Constitution was supposed to prescribe timelines, it does, as in Article 201 prescribes a timeline of 6 months for the legislature to reconsider the Bill. It was argued that timelines are mostly provided in the context of the legislature because, for the high constitutional functionaries, it is expected that they would perform their duties bona fides. There is no constitutional silence and the Court must not read it contrary to the constitution drafters.

States: States argued that a general timeline can be prescribed to ensure certainty and predictability as the elected Government can't be made defunct at the hands of the Governor's indecision.

Court: The Court asked if the Governor or President can be made to be bound by a "straightjacket formula" by laying down timelines, and wouldn't that be amending the Constitution? At the same time, it raised concerns about the inaction of the Governor on the will of the people represented by elected State Government. 

• Is the nature of powers exercised by the Governor immune to judicial review or justiciable under Article 361?

Union: The Union argued that the Governor's powers exercised under Article 200 are not justiciable because these are "poly-centric" decisions where no "judicially manageable standards" to evaluate his decisions on why he withheld assent or reserved it for the President. It was also submitted that States should not rush to the Courts in such matters because the solution lies in the political process. The solution lies in consultation and collaboration. 

States: States argued that Article 361 can't be read in a way to make the Constitution unworkable because then the Governor will become a "super-chief minister" if he is not amenable to the Court's jurisdiction.

Court: The Court, time and again, said that the hands of the Constitutional Court is not tied when a constitutional functionary fails to perform its duty. It asked if the Governor has complete power to withhold under Article 200, what safeguards do the safeguards duly elected have.

• Should the matter be heard by a five-judge bench as per Article 145(3)?

Attorney General: Attorney General had submitted that he had requested a larger bench reference during the Tamil Nadu judgment hearing, but it was not considered. It was argued that the matter involved issues of constitutional importance, and a two-judge bench dealing with it violates Article 145(3). Union supported this argument. 

• Can Article 142 be used to issue a mandamus to the Governor/President?

Union: Union argued Article 142 can't be used in a manner to amend the Constitution, as in this case, where the court prescribes timelines when none were given. The only permissible route here is Article 368.

States: States argued that Article 142 is a power that allows the Court to do an incomplete justice, and the Court can't be remediless when a wrong has been committed, and Tamil Nadu was a case where the Court observed that the Governor can't be trusted as his actions lacked bona fide. Therefore, the remedy was that the bills are deemed assented. 

Court: Court said that it is aware of the fact that it has to avoid a 'operation successful, patient dead' situation.