Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-7 : Live Updates
A 5-judge Constitution Bench of the SupremeCourt will hear today the Presidential Reference by President Droupadi Murmu on 14 questions on the power to assent on Bills, including whether Court can fix timelines for the President/Governor to decide on Bills.
The Presidential Reference, made under Article 143, came a month after Supreme Court's judgment in Tamil Nadu Governor's matter, wherein the Court held that the Governor did not act bona fide in reserving Bills to President. It held those bills as deemed assented. In the judgment passed by Justices JB Pardiwala and R Mahadevan, the Court held that the President must act on the Bills reserved for her under Article 201 within 3 months:
The reference will be heard by a bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.
Follow this page for live updates from today's hearing.
Arguments to continue on September 9.
Gopal: falling through literally means it falls because it can't be represented to the Governor again.
Reads the proviso- predominantly, the intention is to secure the assent of Governor. It is necessary because all provisions will collaese.
Under Article 111, if President is bound by aid and advice for reconsideration, there can't be any different yardstick for Governor under Article 200.
1. cabinet form of gov,
2. runs by aid and advice
3. Governor and President are titular head
All executive actions taken in name of governor and President. That is the design. Two intervene by any process, it must be one authorised by the Constitution. Suppose, Governor is appointed as Governor of UT, the Constitution says he acts indepndently because Union Territory does not have cabinet ministers.
Under sixth schedule, some provisions say he acts independently and some say he acts on aid and advice.
Gopal continues.
Gopal: on Article 200, in Kameshwar there is a passage- Governor is compotent part of legislature, it is misnomer to think he is a part of legislature, the importance is this that if the Governor in a sense alien to legislative business, his role is limited and circumscribed by aid and advice. Reserving the Bill for President is not discretion but under those provisions that on aid and advice, please refer. Rules of business which shows aid and advice even for a message for reconsideration of bill.
Whether he grants or withholds and reserves it for President, all takes place under aid and advice of Council of Ministers.
Sharma: States have their autonomy and they must not be belittled on the whims and fancies of the Governor. If you have a situation where some States can't make a law, and I know cases the Chief Ministers express their helplessness that they can't make law. What is important that legislature are positioned in manner which has to be protected and respected and States can't be created as municipalities.
Sharma: many pronoucements of yourlordships have reaffirmed federalism as part of basic structure. Any attempt to redefine or revisit we disturb the equilibruim.
Learned AG used functional disharmony, a genuine concern which I share. In our constitutional scheme of things, there is no space for discretion but it will erode our strength.
Whether it is justiciable? the answer is a firm yes. There is no protection. If Governor withholds assent, does it have any authority to sit over bills by legislature? Governor's office is it can't be used to nullify the will of the people.
Sharma: Article 123- power of president to promulgate ordinance and similar power Governor has- at anytime if the President is satisfied that situation is such for him to require for promulgation-this is not a legislative power- it has a short life but all these ordinance go back to the house in the first sitting and government of the day, if it doesn't want to retain, it can take it away.
Mr Soliciter referred to legislative powers and that's why I referred.
On assent- very carefully stipulated that there is no discretion. The federal structure, part of basic structure, has a unitary bias designed to reconcline the unity of states and is that this reference brings forth very sharply- both derive their authority from constitution, states have their autonomy and it has to be borne in mind that centre-state relations duties are very well-defined.
Sharma- now the issue of address-that is also moved by cabinet whether in case of governor and president. They can't add or delete one sentence and they speak on behalf of the cabinet.
CJI: where do you get that?
Sharma: Article 86. Whatever they say is cleared by the cabinet. I may also mention the perogation of house or termination of house. The president acts on advice of Prime Minister which may consult the cabinet. It can take place anytime even when house is in session or when house is adjorned sine dine. What is the practice after adjournment?
CJI: this may not be relevant, we may be guided by the limitations but it may not guide us for interpretation of Article 200
Sharma: the proposal to summon is initiated by ministry of Parliamentry affairs and submitted to Prime Ministers and when it is agreed, it is submitted to the Speaker and it is the Speaker through Secretary that it is submitted to President for summoning.
Even to summon legislature, President or Governor has no role. They are bound by aid and advice.
Sharma: second proviso to Article 200 is very clear that where Governor the could recommend or send it to President. 31(3) was also specific where it is stipulated, A.288(2), 304(b), 360- are where discretion is stipulated.
Discretion to Governor is not given in the Constitution.
For 'as soon as possible' means the earliest. In the draft it was six weeks, which was rejected. It was made clear that there is no room for delay. 6 weeks were considered longer and not shorter. Here we are taking about 6 or 8 months.
In UK, the sovereign originally had power to withhold assent and the Supreme Court termed it unconstitutional.
Our Governors have role so-well defined but we say they have the discretion to withhold or the bill falling, the Governors are not Vice-Roys. They are bound by aid and advice. I am referring to Articles 74 and 173.
I am also referring to few other articles which have not been referred that legislature is supremacy and governors/president have no role in the legislature. Even when they come to parliament to address joint session, they don't preside or share, they only address- Article 85.
Sharma: doctrine of separation of powers is not abstract but very foundation of constitutional framer. I will not have to repeat how law-making takes place. But it is the legislature which is sovereign, Parliament or State legislature and when it comes to interpretation, mylords are the final arbiter. That's why India's democracy has substained itself unlike other countries which become independence with us but could not substain.
Article 50 has ensured judicial independence and that is what matters to the people that their rights are secured and justiciable.
Whether President and Gov-do they have discretion? answer is no, the Constitution does not give any discretion. When the Bills are referred to President for consideration, that is also strictly stipulated by Constitution that no discretion was dispensed. It was there in the draft but it was done away with. The amendment moved by Dr Ambedkar was to ensure that there is no delay.
The powers are de jure and no de facto. Executive powers are completely vested with legislature.