If Governor Is Sitting On Bills, There're Political Solutions; Courts Can't Fix Timeline : Solicitor General To Supreme Court

If some Governors are sitting over Bills passed by the Legislative Assembly, then political solutions have to be explored by the States instead of judicial solutions, submitted the Solicitor General of India before the Supreme Court during the hearing of the Presidential Reference relating to the grant of assent to Bills.

Courts are not the solutions for every problem in the country, SG Tushar Mehta stated before a Constitution Bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.

Addressing the queries of the bench regarding the way out if a Governor is delaying bills, SG Mehta submitted : 

"Practical answer. Suppose a particular Governor is sitting over bills, there are political solutions. And such solutions are taking place, and it is not everywhere that the State is advised to rush to the Supreme Court. Chief Minister goes and requests the Prime Minister. Chief Minister goes and meets the President. There are delegations which go, saying these are the Bills are which are pending, please talk to the Governor, let him take a decision one way or another. Telephonically they are sorted out. There are joint meetings with Chief Minister, Prime Minister and Governor and such impasse is solved. That would not confer jurisdiction to lay down a timeline by a judgment. That is the question. In the absence of a Constitutionally provided timeline, can such timeline be laid down by the Court even if there is justification? Such issues are arising in every state since last many decades. But when statesmanship and political maturity are at play, they meet the constitutional functionaries at Centre, they meet and discuss...they come together and a political solution is found. These are the solutions to the problem.

At the cost of making a little unpleasant argument, I am saying, every problem in this country may not solutions have here (Supreme Court). There are problems in the country where you find solutions in the system."

At this point, Justice Surya Kant asked, "Against inaction of the Governor, it can vary from state to state, action to action, or inaction, if aggrieved State approaches the Court and according to you, the judicial review is completely barred?"

SG stated that he was not on the question of justiciability of the Governor's action but on whether the Court can direct the Governor to act within a time-limit.

"If there is a wrong, there has to be a remedy," CJI BR Gavai commented.

"For all problems, this forum may not be the solution," SG replied.

"If a constitutional functionary does not discharge function without any reason, are the hands of this court tied?" CJI asked.

"If power of interpretation vests in Supreme Court, then interpretation of law have to be tried by the court," Justice Kant added.

"Justiciability is something else, adding words to the Constituton while interpreting is something else," SG replied.

Justification cannot confer Jurisdiction

During the hearing, Justice Narasimha said, "You say we can't specify a time limit, but there has to be a way the process works out."

In response, SG said that a justification to lay down a timeline will not confer the Court the jurisdiction to lay down a time-line.

 "What your lordships are rightly pained at  is a justification for fixing time limit but it will not confer the Court with the jurisdiction.We are not flooded with cases in which such instances have arisen. There are instances, where, one or two States have come. If that is the problem, that may be the problem, the remedy lies with the Parliament.  Mylords have said, in view of this, we request the Parliament but your lordships do not direct. Your lordships never direct a coordinate Constitutional functionary. That's the constitutional comity."

The Constitution specified timelines wherever necessary

SG told the Bench that the Constitution has at least thirty-one instances where specific timelines are mentioned, because the Constitution framers felt that those actions are to be taken time-bound. Whenever timelines are not specified, it has to be seen as a conscious omission. "Constitutional framers were conscious that some functions need timelines while some don't need it," he said.

When Articles 200 and 201 do not mention any timeline, the Court cannot read into them any such timeline.

SG further submitted that the view in the Tamil Nadu Governor case that the Governor has no discretion while acting under Article 200 was contrary to the larger bench decisions in Shamsher Singh and Nabam Rebia. SG added that the TN Governor case also wrongly declared the dictum in BK Pavitra(which held that the Governor has discretion in reserving a Bill for the President) to be per incuriam. The conflict with the BK Pavitra judgment, rendered by a coordinate bench, was by itself a ground to refer the TN Governor case to a larger bench as per Article 145(3). He added that the 5-judge bench decision in Purushothaman Nambudiri, which refused to direct the Governor to decide on the grant of assent to a Bill, was also ignored by the TN Governor judgment.

SG asserted that one Constitutional functionary cannot dictate to another Constitutional functionary how its functions must be discharged. Can the Parliament tomorrow pass a law saying that the Supreme Court should not write judgments exceeding 600 pages, he asked. Likewise, can the Parliament pass a law stating that a person will be deemed to have been acquitted if the trial is not completed within a time-period?

SG also mentioned that the Supreme Court itself overruled its judgment on the automatic vacation of stay orders, holding that the Constitutional Courts should refrain from fixing timelimits for the trial courts.

SG further argued that a decision taken by the Governor or the President under Articles 200 or 201 are non-justiciable, as they are essentially legislative functions. "In my view, it is not justiciable. More than one judgment supports it. Power of assent is a legislative act and otherwise as a coordinate constitutional organ, the power is not justiciable," SG said. He added that India follows the concept of Constitutional supremacy and no organ of the Constitution can claim that it was the supreme.

The hearing is progressing. Live updates can be followed here.

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Reports of previous days :

'We'll Be Just Expressing A View On Law, Not On TN Governor Decision' : Supreme Court On Presidential Reference Over Bill Timelines [Day 1]

If Governor Keeps Bills Pending For Long, What Is The Recourse? Supreme Court Asks AG In Presidential Reference [Day 1]

Dr.Ambedkar Opposed Setting Time Limit For President To Decide On Bill's Assent : Solicitor General Tells Supreme Court [Day 1]

If Bills Can Be Withheld Without Returning To Assembly, Won't Elected Govts Be At Governors' Whims? Supreme Court Asks [Day 2]