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

Datar: my submission is, no governor in the country can be a constitutional filter, taking upon himself the constitutional validity of the law. Moreover, the number of laws struck down is not even 2% of those made. On constitutional principles, I can make a law in my competence-sometimes legislature may genuinely feel its competence but court may feel otherwise.

There is no bar in lying down constitutional timelines. I have two examples- In BLR Project, Court said IB should submit its report in 4 weeks.

Dr Rajendra Prasad, stated that gaps must be filled by developing conventions in due course. In so many cases, as tax laws, when no timelines were given in revision projects, J Sinha put a timelimit. Ultimately, effectiveness of law is the certainity. If Supreme Court lays down a law, there is complete certainty.

J Narasimha: do you know the Ruma pal order, how much litigant it led to?

Datar: In education, it created problems, but it tax law, it did wonders.

J Narasimha: constitutional provisions stands on a different footing

Datar: take basic structure, from Shankari Prasad to Sajjan Singh, we said the court's power is untrammelled

J Narasimha: fear is, we get in a situation where legislative process is completely monitored

Datar: take Article 200, the drafters made it 'as soon as possible'- is it creating problem? what is the power of the court to say the outerlimit would mean 6 months? court's power is not fettered, if it feels it is leading to...

Datar: before lunch I was at Article 213- it gives a rough idea of scope of Article 200. This ordinance is done on satisfication of the council of ministers-there is no stage such as that of the Bill. There are multiple articles which require sanction of the President.

In case of ordinance, Governor is cast upon the duty to not promulgate the ordinance-In Krishna Kumar, it is said that at the stage of Bill there is no repugnancy; it is passed then when the issue arises, it can be struck down for violating Article 14.

My submission is, Governor has only options and no discretion. Suppose a bill is potentially repugnant to parliamentary law in List III, can the Governor say I will not assent? Only ground when the Governor can suo moto reserve for the President is the second proviso. It is an exception to following aid and advice.

In two-judge bench, the Governor gave reasons why he did not give assent as it would be contrary to List III-my submission, even if the Bill is in teeth of repugnancy, in most legislatures it is often does with the application of mind, they see the provisions whether it is repugnant to central law. For example, if TN wants to make such law, it will tell the Governor to refer to the assent of President then it goes to Article 254(2), though inconsistent, it will be valid for the State of Tamil Nadu. State cabinet can request Governor to send it for President. Suppose State does not take protection of Article 254(2) and it does not want to refer to the President, it will run the risk of Article 254(1).

The point, I am making, the Governor can't be a constitutional filter.

J Narasimha: what you are saying is legislature can make invalid law? its survival depends on the Governor. but question is, the discretion in 213 is unavailable for 200. One is qualitative discretion another is executive discretion.

to be continued after lunch.

Sr Adv Arvind Datar (for Punjab): I have followed most arguments.

1. Governor has no discretion, his discretion is to choose three options.

2. Article 200 uses as soon as possible-I found it is used 7 times in Constitution- 242 statutory provision etc, mostly as soon as possible for legislature. Why do they say that? the kinds of bills may be of multiple types, could be simple amendment or complex bills involving matters in List III, there Governor may take some more time- it depends on the context of the Bill. If the bill is complicated, he may consult the Advocate General etc. To accept stand of Union is to result in contitutional paradox.

Now argument is I can withhold indefinitely- withholding is like a pause- is there something for the Governor to make a message?- he can consider the House to look at Bill in entirety or certain provisions- what the paradox Union suggest is, when Governor advices and legislature decides to still want to go withhold it- it would be absurd to say that I will not make a message but will withhold it. In Maharashtra, we have chronic issue of reservations for Marathas, now Bill is passed for more than 50% reservation, Governor has no choice. But AG in TN said that the Governor can examine validity, I am not he can't. Governor is not a constitutional filter. Governor with serious advice can say, please rethink.

3. withhold message is inextricably interlinked with the message- he can't keep it as it is

4. when can you refer to the President? this scope of Article 200 can be read with Article 213.

Venugopal: if the Bill is killed, reasons will have to be given as it is open for judicial review. Governor is not there to subvert the functioning of the legislature. He has interest in the State as much as the State legislature. He has no power to withhold assent, after discusing with ministers, Article 163 wll be used for the Governor to grant assent. This is to ensure that Governor is not there as adversary.

Venugopal: One suggestion, former Governor of Kerala, now Bihar's Government followed a practice. When Bills are received by him, he would send for the ministry which introduced the Bill for briefing.

CJI: We will not be deciding individual matters

Venugopal: I am saying that this a precedent set which is the only way the Governor can function

Venugopal: there are 28 States and three UTs which have legislatures. Out of 28-5, 23 States. no dispute of going to court. No problems of bills being assented to. Why? Because so far, the Governors are collaborative, there is an intimate relationship between Government and the Governors...

Venugopal: J Pardiwala's judgment, certain areas has been sent to the President, these are not areas which can be sent to the President, it requires adjudication.

It would be fully within the State Government to indicate to the Governor that these bills would require the assent of the President. If Governor has any doubts, there is a procedure by which all this could be cleared.

Learned Solicitor said that A. 207, it is only with recommendation of Governor that financial bill can be introduced, I say no. Valluri said that such recommendation is only on aid and advice.

Article 117 is a corresponding provision to Article 207-it has been accepted that so far as President is concerned, there is no area of discretion given to him unlike Article 163.

Venugopal: both instances such as as soon as possible and that money bill is provided separately shows the urgency.

For reserving for President, it is only for cases where assent is required...For instance, it has been not brought to the notice but it if Governor wants to promulgate an ordinance, it can't when it requires previous sanction of the President. There is no question of any other issue involving a bill being send to the President, that would violate the federal structure of the Constitution.

Venugopal: Please see Article 199, definition of money bill-assume that money bill is not assented to when presented, 40% of the total budget of the country is the salary people will not receive. Article 198(5), normally the money has to be placed before council of states but if they delay it by 14 days, it has to be passed. It can't have a delay of 14 days, could mylord perceive Governor sitting over money bill- I am told that one money Bill in Kerala has been delayed for 10 months

CJI: we will not go into the facts of individuals cases