Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-4 : Live Updates
Salve: so, 1. when constitution does not set out condition
CJI: you want to compare Article 200 with Article 356?
Salve: yes, that's the short point. The judicially manageable standards are discren from the limitation- 1. delineating the power- once it is delineated, the subject of power is subject to judicial review-Mylords are repeatedly told, how do you find judicially manageable standards when no precondition? Anderson example- If Governor is satisfied, when is satisfaction a fact? But Article 200 finds no such standard.
2. very imp point- the language of Article 361- 'shall not be answerable to any court any exercise of powers and duties' -if mylords accept the position of existence of power to withhold assent, then why he withheld assent is not answerable. Where there are no judicially manageable standard to test discretion, is asking him to answer- the same does not applies to President because he acts on aid and advise but if governor acts on his own, Article 361 will make his answer outside the pale of judicial review.
Salve: Article 200 gives no indication as to when he should withhold, reserve for president etc- no judicially manageable standards.
Salve: why they no judicially manageable standards? they are to be found within the Constitution itself. If power is defined by any express conditions, then the Court is entitled to make such the high functionary is satisfied. But if there is no express condition, the Court can't read into it.
Salve: judicial review- 1. question of judicial review would flow based on interpretation of Articles 200 and 201
2. open for court to always delineate the powers- once delineated the power, exercise of the power by high constitutional functionaries is not amenable to judicial review. If Court holds, Governor has no right to withhold, that's different. but once it is held that Governor has such power, his decision to withhold is not amenable.
Salve: Governor is appointed by the President- and he holds office during pleasure of President. We have to realise, it is within the Constitution, Governor is appointed by Prez and holds office virtually at his pleasure-once sense he is the channel of communciation between Union and State and it is hard to believe that when Union does not accepts the Bill and Governor withhold, it would be hard to believe that Union has no role to play. This is how Constitution works.
Salve: Article 200 does not set out time limit under which the Governor has to set out his discretion- political process takes place behind the scheme, we achieve in 15 days but in some cases it takes 6 months. This can't be sitting in ivory tower and taking decisions.
Salve: When it is presented to the President, he has to act on aid and advise
CJI: though President is bound by aid and advise, its for for so far the States are concerned and the Governor can
Salve: yes; we have two structure and the constitutional framers could have decided, but they did create two structures. Textually, when they wanted to make it 'shall' they did, very carefully crafted provision. The general refer that may becomes shall, they will not apply here because where they wanted, shall is used. On textual interpretation, scheme of Article 200 does not make withholding assent as necessary reference to returning the Bill.
J Narasimha: how Article 74(2)?
Salve: I misunderstood, Article 74(1); there is an element of political process recognised.
J Narasimha: Article 111- President withholds without application of proviso
Salve: Article 74(2) will come into play
Salve: Governor is nodal agency for harmony between union and States. In real constitutional scheme, it is hard to believe that the Governor will act on his own, he may refer to President or try working with Assembly. It is hard to believe that assent must follow and assembly must have the last word- if that is not the scheme of the Indian Constitution, we have to go back to the drawning board and decide what is our federalism.