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

Gopal: whether power to assent is legislative- not a legislative power- he is a part of the legislature in Article 200- but the power of assent is not legislative power. He is the head of the executive, therefore, he declare the bill as law. Bill is declared by the assent of the Governor.

Gopal: I must say, I truly admire the industry of Advocate General, he put the GOI, 1919 and 1935 but the discretion enjoyed must not creep into the 1950 Constitution.

CJI: According to him, President is bound by aid and advice but Governor is not.

Gopal: it's my duty to point out. As for role of Governor is concerned, Union submits he acts as representative of the President...that the Governor is the agent of the centre- this contention is based on the constituent assembly debates- it is submitted he does not act as representative or agent of the centre, he takes oath for the well-being of the state. As so far as union policy is concerned, it is adequately protected.

The Union Government arguments has a possibility of resurrecting the Sardarilal judgment.

Gopal: There is divergence in submissions by my solicitor general, in respect of role of President, relying selectively on Seervai...it is not correct, President/Governor does not have oversight over Chief Minister or Prime Ministers. It does not accurately reflect the law as laid down in Shamsher Singh and express powers of Article 74.

Gopal: firstly, whenever a question arises whether discharging function, whether governor can act on aid and advice- the Respondent says it is final and it can't be questioned makes the decision outside judicial review and will make governor all-pervading authority. The constitution clearly states the Governor has not been assigned any executive or legislative role.

Gopal: In Nebam Rebia, it was correctly laid down that Governor can't be assigned powers dominating the state legislature.

CJI: According to you, S.197 CrPC, it is Governor's discretion?

Gopal: no, its a statutory discretion held in MP Police establishment, he acts independently. In Mama Devi Shrine board, similar held

J Narasimha: any judgment on A.163(2)?

Gopal: Nebia case- where court says its not the investment of discretion.

J Narasimha: Article 163(2) powers are only those crystallised and identified by specific provisions, empowering or declaring that therefore, there is scope of Governor to come to a conclusion that this is in his discretion and that is given finality, this is the purpose of Article 163(2). There is a process and his identification is finalised.

Gopal: I would respectfully ask for a contrary opinion. It is the context of A. 163(1), not standalone. This is what Nebia correctly interprets that A. 163(2) does not give source of power.

Gopal: Under Constitution356(1)(C) 371, and 371C are powers where Governor acts as delegate of the President. In those cases, it becomes under the Constitution. In other cases, it is 'by' the Constitution.

Gopal: Article 163(1)- 'by' and 'under' Constitution- governor to act on ministerial advice, the constituent assembly's decision to retain discretion was meant to serve as a safeguard to ensure the decision is confined to those explicitly given in the Constitution.

In debates on mode of appointment of Governor, Dr Ambedkar said that the governor's mode of appointment does not change his purely ornamental role.

Gopal: State of Gujarat v RA Mehta- Governor must act in aid and advice save in exceptional situations.