Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-8 : Live Updates

hearing to continue tomorrow.

Reddy: prior to Constitution, in 1937, the constitutional provision order made a change that in his discretion, it will specified that it will not be operated because of the adaptatio order. When constituent assembly sat down, there was a draft provision and the drafting committee suggested that there should not be discretion. The draft was put out for comments, they received the comments. It proposed the amendments that needs to be carried out. In Article 175, they may have to delete the word discretion. The debates will clear show that the views were clear that the Governor will not have options.

CJI: he has to act on aid and advice

Sr Adv Niranjan Reddy: in advisory jurisdiction, mylords are invited by President on legal advise on what they have to do. In Special Courts reference, mylords answered that if it's a Bill, the property can't be touched by the Court until it becomes the law.

Your lordships would be advising the President/Governor, normally in judicial review, the two-judge was cautious. But mylords treat it as purely constitutional question, there may have been a doubt on the mind of the President on what is meant by as soon as possible, or should the Governor/President be mindful in reference in Article 201.

The doors are now open by the President. What may otherwise be an inevitable factors, mylords can now specify. If my lordships find that Governor/President are expected to act preferably within 3 months, it only becomes only mylords option but it ends up becomes what they will be bound by.

This issue, advisory jurisdiction, Canadian constitution continues to have it. The Australian removed it. US does not have. Indian Constitution cautiously choose to retain it.

This reference needs to be seen from constructive perspective, not confrontational.

Governor has no discretion. He has no options. All the options available only for council of ministers which Governor is bound to follow. This is the original intent. 

Datar: In para 239 of two-judge bench, the Court says our interpretation should not be taken as timelines but timelines which serve as a benchmark for judicial review.

There has never been a reference of questions which have already been decided.

Last submission, Constitution does not provide everything. Now, I am asking- is there is a constitutional convention of approving the bill at earliest option? Article 111 and 200 are mirror images- if there is convention to approve the bill at the earliest, the same convention applies to Article 200. What is President to the Parliament, the Governor is to the state legislature.

CJI: what about Article 145(3)?

Datar: please see proviso to Article 145(3)

CJI: therefore, the court was required

Datar: if they are satisfied. Under 145, to struck down constitutional provisions, there have been two-three judges benches.

SG Mehta: here, the learned AG did make a request to refer to larger bench

Datar: court says if it is not necessary to refer to five judges. I can give n number of cases where two and three judges bench have heard constitutional interpretation. I would submit, my proposition is, Article 145(3) is not taken as necessary mandate. It is not illegality and irregularity.

CJI: when specific question is made

Datar: go for a review. My argument is two judges have not struck down any constitutional provisions. They have said, do it in 3 months and if not done, approach the court.

Suppose tomorrow, I file a writ petition or it comes before Madras High Court and I raise an objective that it should be heard by five judges. Suppose court is going to lying on precedents and say it is not necessary to. I am only saying, then everything will wait for the five judges. Court has only said, as soon as possible means 3 months.

CJI: you are not on maintainability?

Datar: my submission, if there are 12 questions, 6 have been answered in judgment, it is no more a question of law for reference. What the Presidents referred are questions...What is the meaning of 143, if it is a question of law already answered, it can't be a subject matter.

Datar: under Article 143(1), what can be answered is questions of fact or law. In all 15 references, barring natural resources, nobody evaluated or clarified...if Supreme Court delivered a judgment on statutory or constitutional provision, it is law declared under A.141. Here, questions referred are issues framed by two judges. For instances, issue 1, 2, and 4. If particular bench has framed an issue and answered it, on that point, the reference will not arise. President will have to follow the law.

Datar: they say, we will make the point of law but it will not affect the decree. The jurisdiction under Article 143 is not to clarify or evaluate the correctness of the decision. Indira Sawney says 50% is the limit, they say it applies to promotion also, can you have reference to 11 judges? no. Remedy is Article 368. My submission is Article 143 is not a constitutional method to bypass Article 368.

Even in federal court, there was a case where it gave advisory opnion under GOI Act. High Court started following it as binding, federal court says it erred in following it as binding law. In Kerala Bill, J Das comments upon federal court's judgment. Nothing wrong. I am saying, natural recourses is a wrong law to say you can decide, indirectly making intra-court appeal. Either it goes by Dawoodi Bohra rule or constitutional amendment.

Datar: Laying down timelines is a part of the constitutional trust. Refers to another judgment CT Sivanandan.

What is important is consistency and predicability- once the bill is represented, if Supreme Court enforces a standard, it is completely fine in terms of protecting the cabinet system.

In judgment of natural resources, it does not lay down the correct law. It says, in advisory jurisdiction, mylords can clarify another judgment-very important, this is per incurim as it is contrary to Kerala Bill. Also, AG said that we are accepting the 2G judgment. My friends prepared a chart of the 15 presidential reference so far. In 2G, licenses were cancelled, court said give spectrum not on first cum basis.

In natural resources, the correctness of the 2G was questioned...they say, seriously problematic- overruling of principle is not outcome of appellant jurisdiction but inherent powers

J Nath: even if as soon as possible was not there, the Governor was expected to act in reasonable time.

Datar: when constitution makers contemplated six weeks to as soon as possible...as Venugopal puts it, there is money bill or an appropriation bill, can you stop it? all these are components of well-oiled engine. Constitution contemplates all work in harmony. Can you impose timelines? Yes. If mylords can bring due process in Article 21, overturn AK Gopalan...In how many times, the Court put timelines? hardly in 2 to 3 takes. If mylords can all Governors will give assent in 3 months, and litigants can go to the court after that, there is no reason to complain.

I have taken plea of constitutional trust- Lon Fuller takes about congruence-making and implementation of law. Setting a timelimit is essential for constitutional congruence, it makes explicit what was implicit.

Doctrine of constitutional trust-one passage from Seervai. Basically, what they said is there is a belief that highest constitutional functionaries will discharge their functions