Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-2 : Live Updates

Sibal: if you apply this scheme to Article 111, if Parliament passes a Bill and President withholds it, the Bill falls through? how can this be applied as a constitutional principle

CJI: he says, Governor has discretion, President does not

J Nath: 'unless' again added

SG: But its not an exception to two

CJI: no judgment to say Governor can withhold permanently. Both judgment says it falls through.

SG: Pavitra judgment held to be per incuriam relying on Punjab judgment

SG: none of these judgments cited in Punjab judgment

Judge: what about Tamil Nadu judgment

SG: it is, but it says it is per incuriam

CJI: how can two judges say five judge bench is per incuriam

SG: withholding- it is a complete event. If its not a wise thing, it is for the Parliament to amend but this is how it has been judicially interpreted.

Valluri Basavaiah Chaudhary judgment referred.

J Nath: the procedure to be followed is Article 200- the Governor can do one of three things- declares assent- Bill becomes law; declare to withhold assent- bill falls through unless procedure indicated in first proviso is followed; or declare Bill for President- procedure under Article 201 is followed. Now, unless proviso is invoked coupled with withholding the assent.

SG: unless-it is a separate option

J Nath: unless says he exercises first proviso, that is what the judgment says. He can invoke the proviso when he withholds.

SG: Legislative Assembly passes a law to not enter in trade with foreign country- no question of repugnancy but subject of external affairs- President can say, i can't.

The decision to withhold is based on premise that you did not have the competence.

CJI: Kameshwar is in the context of Article 31A and 31B

SG: Article 200 also examined.

J Narasimha: it has to be open-ended.

J Kant: how to read the curtailment

J Narasimha: the way political process occurs is not adjudiciatory-even if Governor says I withhold, political process can open and he says, I will consider. But to say if it comes for the first time and he says no and it ends. It is counter productive to the legislative process.

CJI: According to him, if Governor withholds, the bill falls?

J Kant: unless procedure indicated in proviso is followed

J Narasimha: two ways, standalone withholding- governor says I am withholding, second option- he resorts to proviso and when Bill comes back, he now exercises is. Standalone withholding will disallow Governor to reply on proviso. Therefore, the stand on judicial review comes important because you say there is no judicial review

J Kant: shall declare means declaration is not empty- how will then we exercise the power of judicial review? Second, if he withholds, he can't exercise other options? If we talk about wide powers of governor, why curtail it?

J Nath: why it is combined with unless, the falling through? According to you, proviso is completely different from fourth option?

SG: Unless he exercises the fourth option

J Nath: Governor can't at one hand say he is withholding and another option exercise an option

SG: proviso is an exception to the first, second and third choice