Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-6 : Live Updates

Sibal: Article 361's true import is against personal attack..but if you interpret Article 200, it will not operate. Look at the oath of office of the Governor...

Sibal: Argument of 361 made, if mylords look at the judgments in Article 356 cases, Governor is not a party because Government defends it and even for 361...but when it comes to the Government's own power, they say it can't be challenged-it will lead to absurdity- It has genisis in history but has alignment with future and who decides the future? you 5 mylords in this case.

If you look at Article 361, it says he is not answerable in the first part but then it says he can be impeached.

Sibal: There is element of urgency because legislature is sovereign. So if mylords said forthwith, that's enough mylords does not have to say 3 months etc.

CJI asked what happens in Parliament? Department prepares the draft and send it to ministeries affected and then comments will come and it will be collated and final draft is send to Ministry of Law and final bill is drafted and send to Cabinet. It is a collaborative exercise of executive ultimately leading to introduction of the Bill. My learned friend says do not deal with facts in other cases but he gave facts-what is this logic? he gives examples which never happened in history.

Sibal: there must be some amnity to make the Constitution work. Not that the Governor says I will not allow it to go forward. No principle of constitutional law allows breakdown of constitutional machinery. There are the fundamentals which the court looks at while deciding the matter. If you look at Article 200, Governor will either send back with suggested amendment or reconsideration, the legislature will then pass. There inherent evidence that that little consideration is with the Governor.

J Narasimha: what weighs with the Governor when he sends it back? when he takes the decision, it is a logical or court type or is it deliberative or consultative?

Sibal: Governor can take advise of Advocate General or private lawyer like the President does with Attorney General

CJI: there has been instances where senior advocates...

Sibal: Governor is not taking decision, he is not a decision making authority or he is a judge. Question of withholding does not arise but then he will thwart the will of the people anthema to the Constitution.

Sibal: Let's assume that he has no power to withhold? he has to either sent it back to say you reconsider or pass it will certain amendment, or he sends to President for consideration. That's the only two options. If he exercises first, he has to do it as soon as possible. Please reflect on the word 'possible'. what impediment would he have to not consider the bill forthwith? the will of people has come to him...suppose example, orphans should also be included in children for reservation- what be impossible for the Governor to hold back?

the matter is sent to the President for consideration? What does she do?

J Nath: sending it to President, whether there will be aid and advice?

Sibal: no, not my argument. If he feels it is repugnant, he has to apply his mind. I am not following Singhvi's argument there...When it comes to Governor sending it back, there is inherent reading in the provision that he does in his capacity

Sibal (for West Bengal): what mylords are considering? One question is-what is the nature of power exercised by Governor-legislative/executive?

What is nature of power exercised by President: is it in aid and advice of Cabinet or independently?

If I assume its absolute executive power- a constitutional concundram will arise-legislature refers to item to List II and passes a legislation defining will of people, but mylords will have to say that sovereign act need not to be implemented- first time in history mylords will hold that will of people need not to be implemented because Guv withholds- unacceptable proposition.

If mylords look at the scheme in respect to executive in relation to State/Union, executive has at no stage any legislative power. If it comes to President, she has no individual function and when it comes to Governor, he will act on aid and advice but he has some individual function like Article 356 which is a recommendatory function. But who decides? the GOI and who decides finally? mylords. Article 161 is grant of pardon, and Article 312 is another power-satisfaction of Governor-again on aid and advise. Give me one article which thwart the legislature.

Singhvi: this is not Article 131 dispute otherwise State is remediless.

Singhvi concludes.

Senior Advocate Kapil Sibal begins.

Singhvi: he is not Union Government, he is not the State...now, I an answering why Article 32 will lie-since Article 131 does not bar.

Since the issue raised can't be worked out in suit under Article 131, writ is the only remedy available. Article 131 is not applicable in my case since there is Governor and the said State Government. Also, substantial question of law also involved.

referring to a UP case: State filed combined Article 32 and 406 for transfer of accused from Punjab to Uttar Pradesh...this is larger parens patriae jurisdiction.

Singhvi: this question reformulated by Mr Mehta not the President's question-does the constitution bar anything jurisdiction of supreme court except by way of suit- it does not directly say it bars Article 32-textually put, this issue was not raised. See Article 131 first.

Question does not arise because Article 200 question can be said to be between Union and State.

J Nath: coming back to previous question, the consequence of timeline has been provided, assent is granted by court and it can be challenged on ultra vires and it will come to this court and this deemed assent can be challenged by way of writ petition

Singhvi: after giving a judgment on law, your lordship does not whisper a word on merits of the bill

CJI: question is whether general timeline can be given under Article 142

Singhvi: you becoming a part of legislative process and then judging bill-both are two completely different thing...mylords will look at merits of the bill, it will not mix the separation of process. Ironically, one of the bills is under challenge before J Nath's bench where I am arguing.