Governor Can't Be A Judicial Reviewer Of Repugnancy Or Illegality Of Bills : Singhvi Tells Supreme Court In Presidential Reference

During the hearing of the Presidential Reference on the issue of assent to Bill, Senior Advocate Dr Abhishek Manu Singhvi, for the State of Tamil Nadu, argued before the Supreme Court that the Governor cannot act like a judge and review a Bill, and that it was for the Courts to see if a Bill was violative of the Constitution or repugnant to any Central law.

He argued that withholding of assent and returning the bill to the Assembly were interwoven components and that the Governor cannot simply withhold a Bill without returning it to the Assembly.

The bench, comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar asked if the Governor can reserve the Bill for the President's assent, after it has been re-passed unmodified by the Assembly on being returned by the Governor in the first instance.

Singhvi answered that firstly, the Governor has no business in the matter of repugnancy, but nevertheless, if he finds the bill so repugnant, he must reserve it for the President at the first instance available to him, while exercising the three options in the main part of Article 200. But he can't do that afterwards, and if the repugnant Bill becomes a law, it is for the Court to decide.

He added that even when he is reserving it for the President, he is acting in aid and advice of the Council of Ministers. 

"He can do so by a) referring it first and b) but he can't do it second because it then violates the first proviso which mandates him to pass it because now you have exercised the will of the legislature and it[proviso] says, you shall pass it. If there is repugnancy, error, or illegality, it is available only to the Courts. He is not a judicial reviewer. Somebody said, the elected government has duty to do right but it also has the power to do wrong and the power to do wrong for the elected legislature is a great power which is only in many cases settleable only in the Courts...That's why mylords quashes or stays everyday. If the Governor starts saying, I feel it is repugnant, and twice the State has said it is not-first it sent you, they did not think so. Second time the State sent you back, it does not think so. Who are you to think so? You can't."

Dr Singhvi also referred to the judgment of Shamsher Singh, which was also read by Solicitor General Tushar Mehta to argue that the Governor has a fourth option to withhold the Bill without returning to the Assembly and when he exercises that, the Bill "falls through". Dr Singhvi addressed that the reading is incorrect as the words have been taken out and given a different meaning.

When CJI Gavai asked what it really means that the bill falls through, Dr Singhvi responded that it is used when the Governor exercises the second option of withholding therefrom and sends it to the Assembly. If the Assembly does not return the Bill, it falls through. Justice Narasimha pointed out that the words 'falls through' may not be a correct terminology and that the judgment has created confusion in using those words. He said that the bill lapses is the right form to use. 

Dr Singhvi also responded to the argument made by Senior Advocate Harish Salve and SG Mehta that Article 200 does not treat a money bill as a separate or special category and the Governor can withhold even a money Bill.

When Dr Singhvi introduced this argument, SG Mehta objected and said he never argued that a money bill can be withheld. However, Dr Singhvi responded that SG Mehta had in fact supported Salve's argument by referring to Article 207 that a financial bill can only be introduced by the recommendation of the Governor at the State level. He said that an incorrect reference was made to Article 207 because it was to bar the private members from introducing financial bills, which could only be introduced by the State Government.

"I am very sorry to say, the submission that a referral back or a refusal back also includes Monday Bill. Specific argument was made. I went back to the Constitution, spent 10 minutes and told my friend also that I must have misread something. The answer given to support that argument was by reference to Article 207. I again examined Article 207. Article 207 is a very interesting provision. We have in Parliament on Fridays afternoons are normally kept for private member's Bills. There have only been five private member bills passed till now that too by Government adopting. Now, Article 207 was enacted that for a financial bill that you can't have private member bill, but you must only do with the recommendation of the State. That provision is cited to support that the Governor can return a bill, which is a money bill. It is in sync that the Governor is in a dominating position- he a super-Chief Minister! Possibly trenching beyond that."

Dr Singhvi also objected to the examples referred to by SG Mehta - such as patently unconstitutional laws made by states such as barring the entry of persons from other States, giving special treatment to one class etc-  on which the Governor can withhold simpliciter or reserve it for the President in the second round after the bill has been returned from the State Assembly. He termed those examples as "doomsday scenarios" and remarked that constitutional adjudications can't be made on extreme examples. 

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