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

SG: if Governor feels a part of Bill is beyond legislative competences, violates fundamental right, he can send the Bill to cure the defect- if he feels some part is curable, then first proviso.

SG: held by all five judges bench.

J Nath: what is the meaning of withhold? why it is being used...is there any constituent assembly debate on the word withhold? they could have said assent or do not assent.

SG: it is taken from 1919 Act and 1935 Act, no debate in constituent assembly. Without keeping in mind egregious situations, that it has been withheld without application of mind, all these are independent options. Let say if it contains atomic energy etc

CJI: he can send it to President

SG: its not repugnancy but complete outside legislative domain

SG: If Governor wants to withhold, the Bill falls through. He has to do it at outset, if he does not chooses he is denuded if he chooses to return the Bill.

SG: What happens when Bill is referred by Governor to President- its Article 201. Please mark as separate point, Constitution provides for a timelimit.

J Nath: the exercise of returning can continue as much as President desires?

SG: How I interpret this, several provisions where Governor exercises executive or legislative or quasi legislative..neither contextually or textually, it can be concluded that withhold is temporary withholding till first proviso works out. If framers were to link, two things -a. withhold will be qualified with first proviso b. first proviso would provide that it will be reconsidered.

In other words, the power of withholding is independent power.

SG: the question of withhold, permanent or temporary, I will show some examples

CJI: you said it is covered by Punjab judgment

SG: without referring to five or seven judge judgments recorded that withhold means first proviso

SG: there can be an Bill which is of such nature which have some provisions regunant or violations fundamental rights or is not desirable by the Governor,

J Narasimha: two places where withhold comes, if your argument withhold leading to falling flat, then you will have to give the same meaning in first proviso.

CJI: if governor feels it lacks something, it is not necessary to exercise proviso, he can bypass proviso?

SG: that's not my case, that is an extreme case visualised in Tamil Nadu.

SG: if there is repugnancy with central law, the governor will have to refer it.

J Narasimha: declaration has to be there in all cases

SG: yes, he has to declare if he withholds it

CJI: if he says, according to you, if he withholds, it falls through?

J Narasimha: what you are saying if he withholds, he communicates that it can't be sent to assembly?

CJI: are we then not giving total powers to the governor..the government elected by majority will be at whims of the governor

SG: withhold-whether it is a temporary act? or Supreme Court five or seven judge bench said it falls through. Suppose at border state, it passes a legislation dealing with [security], he can't assent or refer to President or return to the House because then he is bound, here he will have to withhold it- it has to be used rarely or sparingly

CJI: four options, assent, withhold, reserves for President, according to you, withholding is withhold falls through? But then, it does not exercise resending for reconsideration, he will withhold it for time immemorial

SG: it dies [the bill dies]

J Narasimha: In TN, 12 Bills after first consultation, he withhold 10 but we are not talking about a situation where he communicates he witholds 10

SG: Subsequent articles except Article 163 does not provide discretion but my submission is that when the provision itself provides option, it is his discretion

CJI: discretion has to be exercised within the options provided

SG: problem has arisen from state of punjab judgment

J Narasimha: but time lines is not relatable to the options

SG: no, no. I made a reference that whenever marker provided, its there.

J Kant: the time line you are referring to is for the legislature. Possibly there can't be serious dispute on options assent, withhold, sent to President for advise and return. Discretion was omitted. These are options available, central point of debate is what does withhold means? either to reconsider or return. One draft bill is there, it encroaches upon list I, the Governor can say you can't implement...who much time this process should take is the central point