Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-3 : Live Updates

Kaul: proviso a necessary adjunct to withholding is wrong.

J Kant: what is the meaning and import of shall declare? formal, informal or implied declare?

J Kant: whether power of governor to withhold includes power to withhold temporarily?

Kaul: the proviso in a way out of the four is a preliminary option, all other three have a categorical finality.

CJI: so the Govenor can exercise proviso first and then either of the two?

Kaul: there may be cases where Governor feels the Bill can be assented but it needs some tweeking

Kaul: J Kant asked if other options will fall otiose? Merely because you choose one, it does not make the other otiose.

CJI: expression is not mention, more than one option is given, it shows he has discretion. In debates, Ambedkar said that Article 163 is to presume that whenever discretion is not used, can be presumed and not generalised.

Kaul: I am saying proviso always existed as an option. It is historically an independent option. GOI, 1935 added the word discretion but Article 200 did not have discretion, the constitution benches have said the Governor has discretion. Constitution envisages back and forth between the State and centre. it is a whole process provided for.

Kaul: just because it uses as soon as possible that it is adjunct to withholding is wrong. Under GOI, 1912, Section 12, return of Bill was an option, withholding was an option. It wasn't adjunct. The article said, instead of declaring or without, the words were he returns for consideration.

CJI: need not to go into pre-independence legislations

Kaul: but to say, proviso means the moment you withhold assent, you are duty bound to send it back is wrong because the Constitution does not provide for it.

Kaul: the philosophy behind it, there is an inbuilt consultative mechanism. Dr Ambedkar while dealing with Governor advising said that the Governor has duty to advice

CJI: friend, philosopher and advisor

Kaul: he is not sitting as a rubberstamp. Word discretion may have not been mentioned but court has said he may not be bound by aid and advice and act in discretion.

Kaul: the first words in Article 200 are positive affirmative action of 'shall declare'. But there is a preliminary option there but with ridder that the three options will be taken from you.

Kaul: the words in proviso are 'as soon as possible' 'after representation of bill'. the words as soon as possible, the constitutional framers imbided an expediency over it. It adds unless because if Governor gives assent, it naturally does not falls through, if he reserves, it is still a Bill. But only when he withholds, the Bill falls through.