Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-6 : Live Updates

Sibal to continue arguments tomorrow.

Sibal: Read Article 200, second proviso- 'shall not assent to' is different from withholding assent.

CJI: according to you, where absolute power is given to not assent, it is specifically given and therefore, it can't be added for first proviso.

Sibal: I may be Kamath but he [Mr Mehta] is not Ambedkar

J Nath: discretion is a problematic word?

Sibal: if you use it so lose, then it will create problem. Concept of discretion is alien.

J Nath: he takes a decision

Sibal: that's right. what happens is if one court uses it, the other relies upon on it

J Nath: if he takes a decision, is this justiciable? if he makes a declaration that he is reserving for President, can it be challenged?

Sibal: it can never be challenged.

J Nath: In your side, there are self-contradictory arguments, one is taking a different stand.

Sibal: no, mylords. Only on first point, Dr Singhvi and I talked about it.

Sibal: Mr learned friend said, I am not saying there is no judicial review but there is not justiciability because there is not judicially manageable standards-what are these standards? there are normally in the domain of the executive. Take Article 14, does it have a definition? no, but its manageable. What is equally? it has to be decided case to case basis because there is underlying constitutional principle. Same with liberty, can arbitrariness be defined?

In area of legislative responsibility, all standards are manageable because its on touchstone of Constitution. Not being able to manage is a rule of evidence -take for example, conversation with client and attorney, husband and wife etc.

Sibal: 7. you can't interpret to say this is [exercise of power] is not amenable

8. when interpreting constitution, court's approach should provide workable solutions

these are broad principles supported by judgments.

Sibal: 1. there is no principle of constitutional law which allows for a breakdown of constitutional machinery

2. each organ must function to ensure it does not act as impediment- in context of separation of powers, you can't argue that executive has legislative role

3. working of constitution is collaborative constitutional exercise-it is not a competive position

4. while interpreting the constitution, the fundamental is that each pillar exercises its duties within the framework

5. while interpreting the court must lean towards providing solutions

6. no organ has absolute powers- except master of roster [laughs]

CJI: i only have two months left

J Kant: I definitely did not hear that

Sibal: [reading Article 200]-either Government tells the Governor in aid and advise-my arguments is no! There is element of constitutional responsibility but not discretion.

'if the bill is passed again'-Why will they pass again?

J Nath: then how will he write message?

Sibal: he is not a post office

Sibal: 371(A) is executive power for law and order like CrPC law and order.

J Narasimha: uniquely worded proviso under Article 371(A) says, clause required to act in his individual judgment

Sibal: Nebam summoned house in aid and advice and set agenda of the House-in that context, the counsel for Guv said its in his individual capacity-court said nothing doing! there is no such thing as discretion, completely alien to Article 200.

Even if there is discretion, there are contours in which it has to exercised. Its not like the Governor can exercise in his free will.

J Narasimha: Article 163 says discretion subject to process identified and it is in same line we will have to see if Article 200 gives any discretion to Governor

Sibal: the third aspect-what do you mean by discretion-there is no such concept, no such words have been used. Where is the discretion?

CJI: discretion is to do one of the three options

Sibal: discretion is only used in Article 163

J Nath: the three functions

Sibal: that's a constitutional duty he is performing; Come to Article 371(A).