Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-7 : Live Updates
Gopal will continue on Tuesday.
Sr Adv Anand Sharma, for Himachal Pradesh- this presidential reference does seek to reopen many settled issues of law and brings into discussion constitutional issues of foundational basis..we have given written submissions and judgment which can be marked as read. We circulated short note...
I seek to focus on
1. federalism- power and responsibility and rights of union and autonomy of state
2. position power and constitution role of Governor and President
3. justiciability
4. discretion powers, separation of powers of legislature, judiciary and executive
The framers were grappling in framing the constitution, after centuries of subjugation, the people were to be given a voice... there is no firebones here when it comes to the separation of powers.
Gopal: rules of business are itself product of aid and advise, through which ministerial business can be suitably defined- 77(3) and 163(3)- aid and advice which is binding on council of ministers. CJ Ray said you can't have parallel administration through Guv.
The court noted the expression discretion was consciously omitted. It was also said that although words like satisfaction/discretion is written, it is never personalised exercised.
Gopal: there is a speech in constituent debate-where speaker says that President acting on discretion does not abide by council of ministers's aid and advice, he is thwarting the will of parliament- this is the method by which you actually secure constitutional accountability-this is the basis for the Shemsher Singh judgment.
Gopal: Kesavananda Bharati-court said there is something called implied limitation. In substance, Guv/President stands on the same footing and the democratic form of government is a part of basic structure-theory of implied limitation- J Khanna said if you intend to change the form of government, it will be an abrogation of powers
1. Union says unitary bias in favour of centre- nothing like that
2. nothing called discretion
Gopal:What Union indirectly does it to abrogate the fulcrum of the Constitution-which is cabinet form of government and responsiblity towards legislature- Kesavananda Bharati referred.
Gopal: cabinet form of government is relevant to see the discretion held by Guv- Guv is outside the cabinet and not anyway collectively responsible. In UNR Rao, this question arose and court said even after dissolution of Parliament, the court read Article 74, 75 to say that there will always be council of ministers-aid and advice is central to our constitutional democracy governance.
There is different forms-Presidential and Parliamentary-we chose the last both in terms of centre and state...the reservation of President also takes place on aid and advice...there is no position in the constitution where governor acts on discretion unless under Article 356 and second proviso to Article 200.
Gopal: Union's suggestion is that Guv/President exercise discretion; it is fundamentally flawed.
RC Cooper referred-