How Can You Say States Are Raising False Alarm When Bills Are Pending With Governor For Years? Supreme Court Asks Centre

During the Presidential Reference hearing, the Supreme Court orally questioned how the Union could say the States are raising "false alarms" when Bills continue to be pending with Governors for 3-4 years. This was in response to the plea taken by the Union that in the last 55 years, assent has been withheld in only 20 Bills out of the "17000" and in 90% of cases, Bills have been assented to within 1 month. 

In this context, Solicitor General Tushar Mehta, for the Union, said: "Essentially, the Governor's role will have to be as a guardian of the Constitution, protector and representative of Union of India, and a person who takes the interest of the entire nation because he represents the President of India. Everything he should do in consultation and collaboration with Council of Ministers. Your lordship would recall yesterday when KK Venugopal was arguing, he gave a list of dates in case of Kerala, and in fact, said that this is how it should function. I fully agree that the Governor calls upon the Chief Minister over tea, some issues are discussed and this is how the Constitution works, and this is how it has worked. I will show that with empirical data that this his how the Constitution has worked. Now, we are raising a false alarm that there is a need to do something."

Questioning this argument, Chief Justice BR Gavai asked: "How can you say [States are raising false alarms] when bills are pending with the Governor for four years?"

SG Mehta clarified that the Union is not justifying the indefinite pendency of Bills, but added that there can't be a straightjacket formula by laying down timelines because there are "political dialogue, political discussion and political solutions". He said that in cases where Bills are "atrociously unconstitutional," assent has to be withheld and the Bill falls through. He referred to the Punjab water dispute reference and argued that this was a case where the Governor should have withheld the assent.

SG Mehta said that even though it has now become a trend that everyone wants to come to the Supreme Court, the Court will not interpret the Constitution even in cases of "felt necessities," as argued by some States, in a manner that amends the Constitution. 

In this context, Justice PS Narasimha asked: "Consider the interplay of Article 200 and 201 coupled with proviso one and proviso two, these are very clearly interrelated, it is not a felt necessity. Constitution is an evolving document. But in the context of felt necessity as an administrative law situation, being constitutional concept of how we weigh this proposition that you advance that at the outset the governor can straightway say, sorry I will not assent it. Withhold in another words, you are saying, is not to assent. The moment the assembly passes the Bill, it comes to the Governor and he says, I will not assent to the Bill."

Justice Narasimha said that under Article 201, the President can't withhold and he has to either assent or compulsorily send it back to the Assembly for reconsideration. But the Constitution is silent as to what happens when the Bill is represented to him again. In this regard, can a proposition be accepted that the Governor can outrighly withhold when equally important principles of federalism and democracy at involved. 

"That has to be interpreted in the context of two intervening principles of federalism and democracy. In that context, we need to balance both. There won't be an expression of federalism written in the Constitution nor democracy,  how do we give full import of bill passed by Houses and comes to the Governor and solitarily it is stopped or is there an obligation to ensure that a consultative process takes place that when the Bill comes to the Governor, he could send it back with message and it gives assembly as well as the Governor both in order both recognition of their role to play. That is, it goes back to the Assembly, the Assembly considers the perspective of the Governor, who is reflecting in all probability the view of the centre and it goes back, and Assembly reflects on it. When it comes back to him, could you read that position that he shall not withhold? We have to address what happens when it comes back, does he loses an opportunity to send it back to President. Do we also read Articles 200 and 201 together so ensure a full flow that even if it goes back to the President at this stage, he can't say no. Look at the beauty of the Constitution, even if in second round, it goes to President, President can't say he withholds it. President will have to say, he has to assent or he has to compulsorily send it back, but when it goes back to the Assembly and comes back,  the Constitution is beautifully silent. It says, it shall be represented again to the President for his consideration. But to say at the outset the moment the Bill is send to the Governor and he says, sorry I have withheld it back is a difficult proposition to accept.