Presidential Reference : Karnataka, Kerala & Punjab Argue In Supreme Court Against Giving Governors Power To Withhold Bills Indefinitely

States of Karnataka, Kerala and Punjab concluded their arguments today in the ongoing Presidential Reference relating to timelines for assent to bills, arguing that the constitutional scheme under Article 200 does not provide for the Governor to exercise discretion. 

While Senior Advocate KK Venugopal (for Kerala) emphasised that the Governor can't be allowed to exercise discretion in such a manner that he can withhold even money bills, Senior Advocate Gopal Subramaniam (for the State of Karnataka) submitted that both the President and the Governor are "titular heads" and they exercise their powers on aid and advice of the cabinet ministers.

Subramaniam argued that no such powers can be given to the Governor that allow him to become an "all-pervading authority". Referring to Article 200, he added that the power to grant assent is not legislative, as was argued by Solicitor General Tushar Mehta. The Governor is only a part of the legislative process in regards to assent to the Bill, and he is under a constitutional obligation to act in urgency in granting assent.

Similarly, Venugopal also maintained that the Governor must act "forthwith" while exercising the options available under Article 200. He referred to Article 109 to make a point that when a money Bill is sent to the Rajya Sabha for recommendation and it does not act within 14 days, the money Bill is "deemed" to have been passed by both Houses to denote that even the Rajya Sabha has an outer period of 14 days. 

Venugopal also referred to a practice followed by a former Governor of Kerala, now the Governor of Bihar, that whenever a ministry would introduce a Bill in the State legislature, and then the Bill would be sent to the Governor, he could call upon the minister in-charge and have an interactive session with him and the concerned authority in order to understand the nuances. He added that this is how the Governance has to work and the Governor has as much a role in the "well-being" of its people as the elected State Government.

Senior Advocate Arvind P Datar (for the State of Punjab), while maintaining similar arguments on discretion, added that how long 'as soon as possible' would really depend upon the context of the Bill. He said that for a simple amendment, the Governor may not take much time, but for the complex Bills involving repugnancy, the Governor might take his time in consulting, for instance, the Advocate General of the concerned State. But that does not make the Governor a "constitutional filter" to withhold a Bill if he finds it repugnant with a central legislation or any subject matter in List III. 

Datar argued that the Union's argument that the Governor can withhold simpliciter will lead to a "constitutional paradox". He added that when the Bill is repugnant, the Article 254 route has to be followed. If the State legislature advises the Governor to reserve the Bill for the President's assent, which is repugnant to the centre's powers, Article 254(2) says that the Bill will become law to that extent for that particular State. But if the States do not follow the Article 254(2) route, it runs the risk of Article 254(1) and become void to that extent repugnant to the central law, he argued.

Datar advocated for the laying down of timelines to ensure certainty and predictability. He added that it is important for "constitutional congruence" to make something explicit which is already implicit in the Constitution. Lastly, Datar submitted that the law laid down in natural resources allocation reference (2G Reference) is a bad law in terms of the fact that it allows the Court, in exercising its advisory jurisdiction, can clarify another settled judgment. "The jurisdiction under Article 143 is not to clarify or evaluate the correctness of the decision," he said.

While Datar did not argue that he is questioning the maintainability, he remarked that questions which have been settled by a two-judge bench in the Tamil Nadu Governor should not be considered in reference, as they are no longer substantial questions of law. "A question, once settled, is no longer a question, which can arise for a presidential reference," he said.

Towards the end, the Court also heard Senior Advocate S Niranjan Reddy for the State of Telangana, who would continue tomorrow as well. "Governor has no discretion. He has no options. All the options available only for council of ministers which Governor is bound to follow. This is the original intent," Reddy submitted today.

A bench headed by Chief Justice of India BR Gavai, comprising Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar has been hearing the reference for the past seven days. States of West Bengal and Tamil Nadu concluded their arguments in the first three days.

While Senior Advocate Abhishek Manu Singhvi(for the State of Tamil Nadu) argued that the Governor has no discretion and he must act on aid and advice even for reserving the Bill for the consideration of the President, Senior Advocate Kapil Sibal (for State of West Bengal) argued that the Governor acts independently in exercising this power. 

Hearing to continue tomorrow.

Live updates from the hearing can be followed here.

Click Here To Read/Download Order

Constitution Can't Be Interpreted In A Manner Making Governors Unaccountable : Sibal To Supreme Court In Presidential Reference [Day 7]