Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-10 : Live Updates
A 5-judge Constitution Bench of the Supreme Court 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 is being heard by a bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.
Judgment on Presidential Reference likely to be reserved today.
AG: It is not an attack on Tamil Nadu judgment but on what can be the best view to look at Article 200...You can't say I will rewrite the constitution to make it look better.
It is not the role of Parliament to look at it? core question is, what has been done over the period of time should be reign free ...I am trying to understand how the Governor will work: there is a composite line of reasoning. Governor will see if he has to withhold assent and then examine the possibility if he has to sent to the President- once all these have to be ruled out, he will automatically give assent. The process of reasoning under Article 200.
I will take mylords to the broad concerns-
1. the court will necessarily go into the question of whether reasons are adequate- endlessly exercise, court will pick up the Vishakha judgment and say, there is a vacuum and I will lay down guidelines.
2. is there a silence in Article 200? the way it has been retained to admit of its experience, it with the period of time. Sufficient intrinsic guidelines for the Governor.
CJI: there is no difficultly when the governor sends back with a message, question is can he withhold it? According to you, Governor has the power to endlessly withhold it?
AG: nobody has done that...In my understanding, Article 200 is a legislative process.
AG: first proviso in my understanding- Governor is inclined to give assent but he sees the bill can be improved, he does not lack the authority to do that. He sends message for improving the bill, a recommendation is not accepted- House Rules says there will be full-fledged discussion. When sent back, Governor who is inclined will give assent. First proviso operatively in entirely different situation.
AG: I wish to take your lordship away from Article 200 a little. It is a matter of concern where they talked about important provision. Very often we land into question of moral principles and policies and it gets jumbled upon. In course of assistance on A. 200, i want to bring to notice a greek figure Proteus...
Article 200 devoid of any independent course of action for Governor- all delays are bad, Governor tends to do delay so all Governors are bad- how will the court be really assisted? We can't fall into the fallacy. The logic of retaining Article 200 with Governor in place...it still finds a position in the Constitution.
Constitution framers would have said we will not have governors etc. It is important that it is not placed under shackles. You are being asked to put restrictions, I would say please don't do that.
The moment you say, I will exercise judicial power into how he will exercise his powers, you are entering into new field of Governor's assent. Once you open up a certain thing, could will become a deputy legislator.
On how you will took at Article 200- I think its important to invite to an observation/dissent made by J Holmes on hard cases.
SG: My respectful prayer, we say its not the correct law laid down.
One submission by intervenor-he relied on Article 374 that federal court judgment is binding- I don't think mylords will go into that but there is direct judgment that it is not binding.
SG: This is not a Vishakha situation but even if it is, the answer would be Section 386
CJI: We did not Telangana, where we said it is for the Speaker to decide
SG: wherever constitutional has used some words or not, it is constitutional cautious choice. Last submission, one extreme argument was that you can't do anything about Tamil Nadu issue. It is intra-party binding but your lordship have power to declare that it is not the correct law.
In 2G judgment, one of the issues was can
Sibal: this has nothing to do with the reference
CJI: but is there a question framed in this regard? We will be answering only those questions referred by President
SG: Mr Datar specifically said that TN judgment is the law of the land and you can't touch upon it, I am entitled to answer it. Reads the 2G reference.
Mylords inherent powers can allow to overlook the views expressed while maintaining it intra-party
CJI: two judge bench's law is not binding on constitution bench
SG: Datar's argument was that the view can't be touched
SG: on as soon as possible- at the outset, I make it clear that can't mean endlessly. Mylords prevented me from giving data but since 50 years, 90% bill assents are given within 1 month and even Tamil Nadu...it can't be governor has power to sit endlessly over the bills. Every bill has context specific issues, it might need consultation and collaboration with executive. Sometimes because of popular perception, the legislature is compelled to pass it, but executive request the Governor that we have passed it, you hold on...There are larger number of such contingencies and it is constitutional collaboration and consultation that has worked. Imposing timelines would be self-destructing apart from the fact that it is not permissible. It can't be perennial sitting over it but this straightjacket formula may not be permissible.
Several bills are required to be assented the next day. Therefore, the Constitution says as soon as possible. Please leave it to a constitutional subordinate functionary.
They relied upon constitutional silence, but this is constitutional cautious choice of words. Even if it is silent,
SG: I didn't learn lipreading we can only apprehend or anticipate
CJI: we had a colleague in Nagpur, when arguments were going on, he would do painting (laughs)
SG: if the Governor doesn't decide within 3 months or the President within 1 month, the writ would be filed and the pray would be give assent? or writ petition is further filed that no prevent Governor to grant assent, and refer to the President directly etc...would your lordship would be in a position to substantite the options Governor would exercise? Quat timet actions are not permissible. Its not states but citizens and MLAs can also come. Would it be possible to deal with situations where four petitions are filed?
J Kant: requesting the Governor to take a decision vs asking Governor to take decision in a particular manner is different
SG: would one constitutional organ issue mandamus to another constitutional organ when there is discretion is available
CJI: whosoever high it one be, as custodian of constitution... I publicly say I strongly believe in separation of powers and though judicial review should be there, there should not be judicial terrorism. But if one constitutional functionaries fails to discharge its duty, would the custodian of the constitution sit ideal?
SG: issuing mandamus to a constitutional high functionaries having discretion, it would violate the theory of separation of powers
SG: State of Karnataka written and oral submissions say governor is bound by ministerial advice, and Article 163 requires Governor to act by and under discretion only under certain circumstances. They treat these instances as exhausted.
I have already told that all these judgments are illustrative and not exhaustive. But it was sought to be read as exhaustive.
no mandamus can be issued to Governor- direct judgment in AK Roy- three categories of cases when Governor power is concerned- purely executive. Mylords have said that even in cases of A. 365 and in pardon, judicial review is read but very restrictively.
Second is legislative power like Article 200-the issue of justiciability of Governor's function must receive a nuanced interpretation...the question of denial assent or reserve is not akin to executive power. The following factors need to be considered, prescription of timelines, quashing of reference to President, quashing of decision to refer to resort to first proviso, direction to withdraw the reference.
AK Roy judgment read: Bill became Act but central government did not notify, therefore, a writ was filed to bring the law in force.
SG: I have raised serious concern how selectively judgments are read as was done before the two-judge bench.
CJI: nothing new
SG: Please see Nebam Rebia-few States read Nebam in order to advance that Governor does not have discretion and it was also read to interpret Article 163(2)-it is wholly incomplete and a clear attempt to mislead the court- the judgment notes that Governor can exercise discretion under Article 200...
reads the para
CJI: but this was made in reference to the fact that the Governor does not have unlimited powers
Sibal: Nebam Rebia does not say that the Governor has power to withhold
SG: you are doing tu, tu, mah, mah
CJI: entire judgment is on record, when I came here it was difficult to cope with the speed of the lawyers...this is nothing new here
J Narasimha: now a days certain [portions] are ready
CJI: four of us find it difficult, from one like people go from first to ten
J Kant: in high courts, the facts are read first
SG: when I started, I read it
J Narasimha: next generation must make it clear that they should not adopt this technique, they should go to old-age practice