Presidential Reference | Sibal Disagrees With Singhvi's Argument That Governor Has No Discretion While Acting On Bills [Day 6]

The Supreme Court yesterday(September 2) orally remarked that the arguments made by those opposing the Presidential Reference are self-contradictory in terms of the different approaches offered by them in reading Article 200.

Justice Vikram Nath orally said this in the context of an argument made by Senior Advocate Kapil Sibal(for the State of West Bengal) that the Governor is not a mere post office and there is inherent evidence in Article 200 to suggest that he acts independently in sending the Bill for the President's reconsideration. Justice Nath then asked if the Governor does not consider the aid and advice of the Council of Ministers at this stage, to which Sibal said he disagrees with the argument made by Senior Advocate Dr Abhishek Manu Singhvi (for the State of Tamil Nadu) in this regard. 

Singhvi had argued that the Governor has no discretion, and he must take the aid and advice of the State cabinet. He had submitted that when the Governor sends the Bill for the President's consideration, the Governor is acting on aid and advice because there may be a situation where either the State Government wants the President to reconsider, or where the bill deals with a matter which requires Presidential assent. 

On Justice Nath's remarks, Sibal quickly clarified that he is not adopting Dr Singhvi's argument in this context only. He said: "As far as the aid and advice is concerned, when it comes to the right of the Governor to send it back, there is inherent evidence in reading the provision that he does in his capacity that the Governor feeling that it might be repugnant to central legislation.

"There are two interpretations. Either the Government of the day tells him to reserve it for the consideration of the President [on the aid and advice]. That is Dr Singhvi's first alternative argument. I say, no. It's my argument, no [that is not the case] because if he is going to refer it to the President on aid and advice of the Council of Ministers, why would Bill be sent to him. This is obvious. There is an element, not of discretion but of a constitutional responsibility.

Reading the first proviso to Article 200, Sibal added: "Now, you read the words 'if the bill is passed again'. If the Bill is returned on the aid and advice, where is the question of if the Bill is passed again? Therefore, I am not agreeing with the first argument of Dr Singhvi." 

Further, Sibal argued that it is wrong to use the word 'discretion' in the context of Article 200, which is "alien" to this concept.

When Justice Nath asked how the Governor writes the message while sending the Bill to the Presidenr when he has no discretion at all, Sibal replied: "Therefore, there is that constitutional responsibility afterall, I said he is not a postman. There, I agree with him that there is some play in the joints but there is limited play in the joints and what is that play?

If he feels that this requires a consideration of the President, he can consult lawyers, and refer it to the President. Or if he feels some amendments are required, that's a suggestion because he is not the deciding authority he send it back. That's perfectly workable. That is what makes the Constitution work. If its only on the aid and advice of the Council of Ministers and there is no leeway, what's the point of having a Governor then?"

Sibal emphasised that to make this work, it has to be only through a "collaborative exercise of constitutional authorities". That's the only way to interpret the Constitution, he added.