Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-7 : Live Updates
Sibal: Article 200 is not one such position [where discretion is given] if you give him discretion, the Constitution will breakdown.
CJI: he has been given discretion in Article 371H
Sibal: even that discretion is for the maintenance of law and order. It can't be [that Governor is given discretion under A. 200] because it will be contrary to constitutional law.
Sibal: first time in history of this court that a dismissed Government was put back through a mandamus because Guv action was found completely unconstitutional[referring to Nebam]
J Nath: Kalyan Singh was also put back
Sibal: Learned SG argument on discretion is the exact argument made by three counsels of the Governor in Nebam Rebia and was rejected-
Sibal: SR Bommai also referred.
Under Article 163, the Governor must exercise his powers with the aid and advice of the Council of Ministers except when required by Constitution-the words by and under this Constitution say the discretion must be expressly conferred-that is why I said, the discretion is alien to Article 200 and it is his constitutional duty.
Sibal: see the consequence- Guv says I am withholding the Bill because I believe it is unconstitutional and State passes it again and he still withholds it.
CJI: he can't withhold in second
Sibal: but he does, then what happens? If somebody files a petition, Guv can't become a party and who will defend him? let's not make the constitution interpretion such that it becomes unworkable. That's the argument made under Article 361. The language does not matter, its objective does. It owes its genesis to history but owes its allegiance to the future. Somebody gave a timeline for 3 months, you don't give timeline but you will have to say something. When you come to deemed to, you say you don't have a solution.
Sibal: I will cite two judgments, one is NCT v. UOI
I can understand a situation of tsunami, what is happening in Himachal today, J&K and Punjab completely inundated- there may be a delay in such situations.
CJI: or law and order situation
Sibal: Court must attempt to ensure that there is no area of discord so that the keywords are 'as soon as possible' it was not later than six weeks which means forthwith, immediacy, urgency. Why should that wait? The Governor can't say I don't have time. That's why its very dangerous to lay down laws in these areas...you are given a situation where argument is made that give that discretion
CJI: argument is Governor have power to permanently withhold
J Kant: According to you, Governor will have to apply mind to find out if the legislation [is repugnant]
Sibal: if the Bill is sent to him, there has to be no formal declaration. He sends it back, its a declaration that he is sending and withholding assent. Kindly note the word that withholding is co-terminus to sending the bill. Declaration is clear that it is the act of the Governor. What mylords are looking at the contours-such as reasons for sending it back. Are those justiciable? let's say Parliament does not agree, and it is sent back and if he sends it back to the President and the President sends it back, it has to be passed.