Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-10 : Live Updates

SG: This adversarial approach was never taken, since 50 years we have this example.

Another point, discretion and aid and advice and necessary implications as argued by Gopal Subramaniam- his argument was discretion is only provided when it is so provided either by or under the constitution-the constitution confers discretion expressrly and certain read as implied due to nature of power. Article 200 is example of certain implied discretion based on certain fact situation where Governor is so required to act.

Even under Article 163, the Governor can exercise implied discretion when taking aid and advice would defeat the purpose-suppose Chief Minister faces allegation and it requires sanction under PC Act, and he may still take council of ministers advice but Governor can say it is a biased advice and he may not take it.

For example, under the constitution, discretion is evident- power to summon the assembly-such as for floor test, power of floor test does not use the word discretion but said power can be exercised. Power under second proviso to Article 200 does not recognise in his discretion, under Article 356 does not say discretion but nature of power is such.

To say that it has to be under or by constitution is a wrong interpretation.

CJI: your proposition is that we have to take into consideration extreme examples and have to be cautious

SG: something so shockingly unconstitutional-suppose State assembly says henceforth we will not be a part of Union of India, Governor has to withhold assent. It is a separate option.

What is the meaning of word falls through? what is the consequence of withholding assent? it is not a constitutional term, constitution using lapsing but it is a separate phenomena suppose assembly dissolves etc. But every judgment uses the words falls through.

In constituent assembly, whenever the amendment was moved and it was not accepted, it falls through

CJI: it has to be equated with legislative assembly

SG: whenever the amendment is not accepted, it falls through or dies

CJI: unless the proviso is followed

Sibal: my learned friend gave this sheet that the bill falls through but the Governor's assent was given. According to him, whenever he withhelds, it falls through but it became an act.

SG: this is reference made by President, it does not mean only one party will appoint Governor

CJI: constituent assembly was cosnidering provision of Governor, they had expected that it would work on harmony

SG: the system has functioned in harmony, it is a recently started phenemona with NCT Delhi. There was Congress government, communist government but was Article 32 petition was filed?

Sibal: it was this very bill

CJI: place it on record to see if after withholding Governor sent to assembly and after it come it was passed

Sr Adv Wilson: In Tamil Nadu, 10 bills were returned as withheld and then it was passed

SG: as a matter of fact that Article 213, that despite the contrary aid and advice, the Governor has room for discretion. I have given contingency for discretion. I have cited judgments which says irrespective of constitutional provisions, there is discretion available- calling for the chief minister to make government etc. ..i have given broad paramaters such as bill is undermining the constitution, erodes principles of democracy, has a character which has national implication. I have example of Punjab water dispute, 4 States involved, an international agreement, assent was given

J Narasimha: court granted stay on that

SG: but that would not take away the power of governor to withhold. I have given extreme examples, I have given judgments where Supreme Court has given extreme examples to decide the case. The Constitution will have to be interpreted with harshest example to withstand the time. I have given example of Nani Phalkhiwala giving extreme examples- surrendering sovereignty, or state saying we will not tax anyone except industrialists.

See Kesavananda Bharati-

CJI: these are in regards to executive having unbridled powers. Your submission is that while interpretating this, we have to take into consideration extreme situation

SG: Another example State of Rajasthan v UOI- this was came of A. 365, Janata Government dismissed 7 Congress Government- question was what can be judicial review- court said we will examine only if there are certain exceptional examples

J Narasimha: this is age-old technique, nothing new.

SG: New point, otherside learned counsels relied upon Article 213 to substantiate their interpretation. The interpretation canvassed that this clearly shows that there is no discretion with Governor. Dattar went to the extent of saying that legislature has a right to pass a void bill and only mylords can set aside.

One argument was the promulgation of the ordinance, I am not saying read discretion here

CJI: it is his satisfaction rendered by aid and advice; ordinance is the power of executive

SG: i am saying, there is discretion after aid and advice..Like Article 254(2), here it makes very clear that as per first part, you will act on aid and advice. But he shall not do it on three contigency including he deemed it necessary to reserve it for the consideration of President. For this, he needs prior permission of the President.

This provision came in consideration before a seven judge bench. This was not cited because the argument came orally. Krishna Kumar Singh v State of Bihar, seven judge bench held.

SG Mehta: There is always a declaration made by Governor in either of the four contigency. I could lay my hands on one such declaration. Governor of Manipur has sent me, one Bill which was withheld. There was no political difference between centre and State. Manipur Agricultural Produce and Livestock Marketing. Reasons are given in file noting, ultimately Governor says I withhold assent.

Second, I am told, so far as number of act is concerned, if it is returned and sent back and if it happens in same year, the same number continues and if new year, then new number...Lok Sabha Rule 132, the debate on such a motion shall be confined to such matters referred to the suggestions and amendments recommended by the President.