Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-9 : Live Updates

SG: Kindly visualise when there is apparent repugnancy, normally it is expected that councils of ministers itself would say, it is repugnant and take reference of the President. Suppose, the council genuinely feels there is no repugnancy but Governor feels there is, and resorts to proviso.

J Nath: Has it ever happened that when Governor withheld, a declaration has been made in this regard?

SG: yes, 20 such bills

J Nath: 20 bills have been declared to be withheld

J Kant: there was no formal declaration

J Narasimha: 20 cases Governor said, I will not grant assent. When a bill is sent back with a message and then assembly amends in entirety and then comes back, under parliamentary procedure does it continue to have same number?

Sibal: same number

J Narasimha: does it comes to the hand of a Governor as a new bill?

Sibal: No, because for new bill the bill has to be withdrawn. I have never seen any formal record that he has withheld. There is no declaration, the act itself is a declaration.

SG: I will confirm tomorrow if it goes as a separate bill or not

SG: what happens when he sends it and assembly passes with or withhold modification, then also he does not lose his power to refer it to the President.

SG: suppose, take for ex, a bill is passed that in my state only one language will be used, people will not speak or write in any language. It is in list II. It is not necessary the Governor will immediately withhold it, he will ask the chief ministers that it will destory your economy etc.. It is not necessary he will withhold at the threshold, he may hold consultation.

SG: When Kesavananda Bharti was argued, bench was of the view that power to amend the constitution also include Article 386 itself- it was a catchy argument, Mr Pakhiwala gave extreme examples that it turn his way. He said, suppose some parliament is to surrender the sovereignity to queen, or suppose parliament will come out will bill that only certain people will be allowed to vote

CJI: voting rights were not available to everyone initially

SG: Constitution is fundamental document based on which nation subsists. Extreme examples are important to make sure nation can deal with extreme exgiency..What I said was even basic structure came into existence due to extreme examples

CJI: it first came in minority judgment

SG: textual meaning is always preferred. Even in case of felt necessity or extraordinary situation, your lordship will not interpret the Constitution which has consequence of amending it

J Narasimha: it is not a felt necessity, constitution is living document. It is a constitutional concept of how we accept the proposition that the governor at the outset says he will not assent- how to interpret it in principle of federalism and democracy- how do we give full import of bill passed by legislature to the Governor where he could send it back with message in order that both gives recognition. Assembly considers the view of the Governor which in a way conveying the centre's view and Governor does not withhold. Do we also read Articles 200 and 201...even if in second round, it goes to President, he has to assent or mandatorily sent it back and when it comes back, the Constitution is beautifully silent but at the outset to say that the Govenor can withhold is difficult proposition

SG: collaborative and dialogue is not a one way street. The governor, who are nothing but postmaster, when we say refer it, refer it- judgments say it has to be collaborative.

SG: It does not mean every state would come and reduce the highest judiciary of country to the position of headmaster that this student is not doing that. There are particular political process. More and more cases are not arising not because the problem is not solved but because they take a different political process. Right from 1970, 90% of bills are passed within a month.

Argument was give interpretation to constitution to make it workable but they mean give Governor a position of ornamental- I have said that chief minister is under obligation to inform the Governor who is going on. Options are available to governor, not council of ministers. if there is apparent repugnancy, which council of ministers will ask Governor to not assent?

SG: some states can't declare felt necessities to amend the constitution. They are on extreme argument that governor is only signatory but they also argue that he has to undertake collaborative exercise. This is going on 55 years.

SG: if two judge bench's judgment is clear then, Article will have to be read with this amendment that Governor shall not withhold and has to assent thereof.

this argument was, the word withhold is used in sense of temporary deferment. The word withhold is used in same article twice. First, he assents or that withholds therefrom but I read as they read that he assents or temporary withholds and sends it to the legislature- then what is the reading of the proviso? governor shall not withhold. One word used in same article can't have different meanings.

What meaning we will give? come to first proviso, last time- governor shall not withhold therefore-this can't be temporary withholding. Withhold means it falls through. J Narasimha pointed out that the word has not been used in Constitution but it has connotation in constituent assembly that when an amendment is not passed, it falls through

CJI: yes, it means it is not passed by constituent assembly

SG: ignore constituent assembly debates

CJI: that analogy can be applied to the bill passed by legislature

SG: because there was no one there for assent or withhold.

Argument was take the spirit of the constitution that according to them Governor has nothing to do- this according to me is wrong. This argument is debated in Kesav Madhav Menon.

SG: they wanted to present their problems

CJI: they wanted to give data of respective states on how many bills are pending for months and years. You can't then represent the data

SG: 90% bills are assented to within 1 month

J Nath: how is that relevant?

CJI: we are proud of our constitution. what is having in neighourbing states, what happened in nepal

J Nath: or Bangladesh

SG: he argued felt necessities. I am saying, earlier such issues were arising but states were not advised to rush to the court

J Nath: what is wrong if they are better advised today?

SG: I strongly object to this kind of objections by [sibal]

J Kant: the point is if one bill is withheld or 1000,

SG: that fire in the auditoriam argument that something is happening

CJI: we didn't permit them, we will not permit you

SG: he argued felt necessities, not facts.