Thread by @LiveLawIndia

#SupremeCourt constitution bench to continue hearing today Presidential Reference by President Droupadi Murmu (@rashtrapatibhvn) on 14 questions on the power to assent on Bills, including whether Court can fix timelines for the President/Governor to decide on Bills.

@rashtrapatibhvn The Presidential Reference, made under Article 143, came a month after Supreme Court's judgment in Tamil Nadu Governor's matter, wherein the Court held that the Governor did not act bona fide in reserving Bills to President. It held those bills as deemed assented.

@rashtrapatibhvn In the judgment passed by Justices JB Pardiwala and R Mahadevan, the Court held that the President must act on the Bills reserved for her under Article 201 within 3 months: livelaw.in/top-stories/pr…

@rashtrapatibhvn Here is the 14 questions asked by President Murmu:
livelaw.in/top-stories/su…

@rashtrapatibhvn A Presidential Reference is heard by a constitution bench and therefore, a five-judge bench:

@rashtrapatibhvn Follow the thread on yesterday's proceedings:

https://x.com/LiveLawIndia/status/1958019007145009241

@rashtrapatibhvn Read our reportage on Presidential Reference: livelaw.in/gsearch?q=pres…

@rashtrapatibhvn Solicitor General Tushar Mehta to continue his arguments.

SG: Governor shall declare, he has three options- grant assent- facets of it? at the outset, if he grants assent, Bill becomes Act. If he defers, he can take decision and resort to proviso and return the Bill, fourth option. Bill is returned with or without modification.

What is second? withhold- standalone option-complete action

CJI: According to you, Punjab is wrongly decided?

SG: yes. At outset, if he withholds, patently unconstitutional, the bill falls through. Question is- instead of taking this route, he resorts to the proviso- it is returned to the House and if comes back, he has two options- he can assent or reserve. Third, one new element, when the reserves at outset, first can be for repugnancy. Certain provisions in Constitution mandates state legislature passing law, Presidential assent required- for instances, Article 31(3) etc.

@rashtrapatibhvn SG: All four options are independent.

SG: second question, which I am addressing- whether Governor is bound by aid and advice tendered by Council of Ministers- Article 163(1)-functions can be based on discretion or aid and advice. What is the demarcation? that's the question.

The Constituent Assembly debate relevant is-Kamath objected the addition of discretion. This argument is responded by Mahavir Tyagi.

@rashtrapatibhvn SG: there can be a vacuum, when one ministry goes

CJI: whenever there is President's rule, there are advisors to the President

SG: Governor calls out leader for choice of minister, after previous dissolved, who will be to advice him? he has to act in his discretion.

@rashtrapatibhvn SG: I have quoted Seervai on what is the discretionary powers of Governor and President. I have referred judgments on discretion [of Governor and President].

@rashtrapatibhvn SG: [reading judgment on whether discretion can be exercised] 1. expressely provided 2. where legislative intent emerging from interpretation- Article 356 for eg. 3. whether constitutional court declares 4. where bias is inherent in aid and advice- sanction under PC Act

@rashtrapatibhvn SG: Shamsher Singh judgment takes note of in Punjab judgment but relevant paragraphs missed. Only two paragraphs are noticed.

@rashtrapatibhvn SG: Punjab Governor judgment referring to Samsher Singh judgment-

@rashtrapatibhvn SG: What is missed by the Punjab judgment is

@rashtrapatibhvn SG: Article 200 where Governor may act in his own discretion. In TN judgment, this is distinguished relying upon concurring option of a judge in this case. Next is MP Police judgment which is not noticed.

@rashtrapatibhvn SG: MP Special Police establishment judgment- para referred:

@rashtrapatibhvn SG: Now, I came to most important judgment-Nebam Rebia-escaped the attention in Punjab judgment, quoted in Tamil Nadu but important paras missed.

@rashtrapatibhvn SG: How this is dealt in Tamil Nadu judgment-

SG: This discussion in TN is directly dealing with the question of discretion.

J Nath: the TN judgment refers jumps to para 154, skips 151, 152

SG: real law in nebam rebia laid down in para 151, 152. Next BK Pavitra judgment referred, declared per incuriam. This itself was enough for an Article 145(3) reference.

@rashtrapatibhvn CJI: According to you, Article 200 Governor has ample discretion?

SG: it is wrong to say he is bound by aid and advice in every matter.

@rashtrapatibhvn SG: Mylords are right that every case, it is not necessary the Court will exercise Article 145(3) but this was a case where only issue was constitutional interpretation.

@rashtrapatibhvn SG: B.K. Pavitra referred-

@rashtrapatibhvn SG:

@rashtrapatibhvn SG: something very serious- one constitutional organ prescribing timeline for another constitutional organ-statutory functionaries can be bound by it, but would be apply to coordinate constitutional functionaries?

SG: wherever a timeline was stipulated, it was deleted. But wherever it was required, it added. The constitutional framers were conscious of it.

I have compiled constitutional provisions where Constitution itself stipulates timelimit- Article 209, etc. TN judgment, which mandatorily stipulates time limit relies upon Punchi and Sarkaria Commission, itself says these are our recommendations and we recommend appropriate constitutional amendments. Reliance may not be correct because commission does not say it has to be by judicial adjudication.

SG: There are judgments which I have cited that even in statutes, courts can't add, substitute or omit words. Court can suggest a competent legislature. One judgment, I am not reading, where J Narasimha was also in bench Supriyo v UOI. It was not reportable. It was the LGBT matter. Those judgments including electoral bonds cite this but this Supriyo judgment remains unreported. But important judgment laying down seminal questions of constitutional importance.

@rashtrapatibhvn SG: In some facts, the timelimit may be justified but justification can't confer jurisdiction.

@rashtrapatibhvn SG: In case of decision of nature Governor takes, it is poly-centric, it does not tick boxes. They may take some consultative process, there can be several reasons for delay.

P Ramachandran case referred- why time limit can't be prescribed in conclusion of criminal cases-

J Narasimha: you say there is nothing like pocket veto, though we can't specify a time limit, but there has to be a way the process works out.

SG: what you are pained at, it will not confer with jurisdiction. We are not flooded with cases which such instances have arised. One or two States have come. Remedy lies with the Parliament. Mylords have said, in view of this we request the Parliament but your lordship does not direct. That's constitutional comity..Suppose Governor is sitting over bills, there are political solutions and it is not everywhere the CM rushes to the Court. CM goes to the PM, telephonic it is sorted out. Such impasse is solved. But it will not confer jurisdiction to lay down time limit even if there is justification. Such issues are arising in last many decades, but statesmanship and political maturity allows them to keep the centre...they come together and a political solution is found.

SG: Suppose a bill is passed by Parliament that people of country is approaching that there trial is pending for 30 years, can the executive say there is a problem and your trial is treated to have been terminated, you have been deemed to have been acquitted. Justification can;t confer jurisdiction.

J Kant: Against inaction of Governor, it can vary from state to state, action to action, or inaction, if aggreived State approaches and according to you, the judicial review is completely barred?

SG: I am on timelimit.

CJI: if there is a wrong, there has to be a remedy

SG: for all problems, this forum may not be the solution

CJI: this court is the custodian of the constitution

SG: each organ is

CJI: if constitutional functionaries does not discharge function without any reason, are the hands of this court tied?

J Kant: if power of interpretation vests in Supreme Court, then interpretation of law have to be tried by the court

SG: justiciability is something else, adding or constitutional interpretation is something else

CJI: we have to go on literal interpretation

SG: you can always call the law officer and say please do

J Narasimha: if extreme view is taken to argue that you can't do it, you say we don't have the power to do it at all, how do you make the Constitution work?

SG: please see the directions in the Tamil Nadu judgment [reads it]. There are two things, the second direction that President and Governor will record reasons and if they don't follow time line, States can come to Supreme Court or HCs. This means one institution is directing the President to do it within some time. I respect the directions, there may be justification but it can't confer jurisdiction.

SG: on timeline, there is direct judgment of five-judge bench. Article 200 was considered from view of time line and it was not prescribed. Article 200 follows 201 and in 201, time line is prescribed. All provisions where it was necessary to prescribe timelimit, it is there. Only question is can it be prescribed by a judgment?

@rashtrapatibhvn SG: Purushothaman Nambudiri- Bill lapsed because of non-prescription of timelimit.

SG: the outgoing cabinet say, our tenure is over, give assent to the Bill but Governor may choose and say, let me wait for the fresh elections. Outgoing people who have lost their time in the electoral mandate may not have applied their mind.

J Narasimha: so the bill does not lapse

CJI: two judges bench ought to have considered it

@rashtrapatibhvn SG: it is cited, let me first show the facts of Purushottam.

@rashtrapatibhvn SG: even if the context was lapsing, I read the ratio. The pray was this that you provide a timeline otherwise it would lapse.

@rashtrapatibhvn SG:

SG: Kesham judgment

CJI: All have held that the speaker is a tribunal and he is amenable to the jurisdiction of this Court. Right from Kihoton, it has been held that he does not enjoy immunity. Kesham judgment also does not lay down guidelines. An argument was made that in UP case that the court should exercise the power and itself qualification, the Mayawati judgment.

@rashtrapatibhvn CJI: this court held that MLAs writting a letter from BSP that from SP Mulayam Singh should be made the CM itself was enough for disqualification.

@rashtrapatibhvn Sr Adv Kapil Sibal: five years, I have been saying Speaker is a tribunal

CJI: we said we don't want to create a situation of operation successful, patient dead.

@rashtrapatibhvn SG: as soon as possible- I am giving a judgment, Abdul Munim.

Can manner of exercise of powers be prescribed?

J Narasimha: show us the portion of two judge bench where it has been

CJI: that may be valid when some members of executive exercises adminstrative powers

@rashtrapatibhvn SG: directions is to the timeline, give reasons and States can approach the Court

CJI: that will in violation of time line

SG: to get mandamus issued.

SG: another important question- whether exercise of power of President under Article 111 or Governor under 200 and President under 201 justiciable? In my view, it is not justiciable. One than one judgment supports it. Power of assent is a legislative act and otherwise as coordinate constitutional organ, the power is not justiciable.

When we say, kindly take this as constitutional argument, in Britain the Courts can't go questions because of Parliamentary supremacy except for human rights. Fortunately, the Supreme Court of India is the most powerful as mylords can set aside constitutional amendment, legislations.

@rashtrapatibhvn SG: We have constitutional supremacy, but don't have Parliamentary or legislative supremacy.

CJI: Sovereign is the Constitution.

SG: Supreme is the Constitution.

@rashtrapatibhvn SG: While exercising justiciability, the submission is divided
1. nature of power
2. non-justiciablity as facet of the independence of three organs- certain functions are core functions
3. judicial restraint

@rashtrapatibhvn SG: why classical concept of judicial review will not apply? Hoechst Pharmaceuticals Ltd. v. State of Bihar referred.

@rashtrapatibhvn Hearing to resume at 2 pm.

@rashtrapatibhvn Bench assembled.

@rashtrapatibhvn SG: Kaiser-I-Hind Pvt referred-

@rashtrapatibhvn SG: Suppose Governor feels it is repugnant to two central Act and sends it to President and it is found that it was repugnant to actually five central law- the main issue was can the assent be justiciable?

@rashtrapatibhvn SG: court can't decide validity of assent-

SG: on the ground of doctrine of separation of powers and non-justiciable of coordinate constitutional organs- assent is granted in aid and advice, there is no dispute in view of Governor. Under Article 163 prohibits the court from inquiry on what advice the assent was granted.

Suppose assent is granted, according to two judgments, it is not justiciable. Suppose he chooses the first proviso that he sends to the assembly and after proviso operates and bill is presented with or without modification, it can be sent to the President. That can be a subject matter of challenge. Question is- when they are exercising legislative power- such multipronged attacked by judicial review is permitted? my submission is no.

CJI: either he grants assents or not, but governor withholds it for unlimited period

SG: withhold is permanent; please see title of Article 200. it is not justiciable the exercise of powers under Article 200 and 201

CJI:according to you it is totally out of judicial view?

J Kant: the court can't examine the assent, but here question is decision making process

@rashtrapatibhvn SG: multi-level challenge- grant of assent per se if its challenged, the return by Governor to assembly can then also be challenged. Governor can send without repugnancy. Suppose he chooses to refer it to president, that is also a decision under Article 200.

@rashtrapatibhvn SG: Provision also says desirability. For instance, age is under challenge. He says, make it to 21. The assembly would return it without accepting, then also that option is available. If its justiciable, it can be put to challenge.

@rashtrapatibhvn SG: my respectful submission, this being plenary legislative powers exercised by coordinate constitutional functionaries are outside the pale of justiciability.

SG: It is always safe to save the jurisdiction of this Court. This theory, separation of powers amongst coordinate constitutional functionaries is accepted in our Constitution. Please see Article 163(3). Suppose, the outgoing Gov hurriedly passed Bill, send to Governor, new Government is formed and its not the same Government. he may advise governor to withhold the assent like I want to have fresh mandate, the constitutional prohibition is, you can't go into the advice given. What is done by Governor after that is also non-justiciable.

SG: There are some communication inter-se constitutional functionaries which are beyond the examination by court. Governor's communication with President can't be examined. Similarily, any powers under Article 200 and 201 is outside judicial review, or non-justiciable. I should not use the word judicial review.

SG: the decision are polycentric in nature, the very nature is such that the court may not have judicially manageable standard. If there is assent, based on what the Court will examine whether it was rightly or wrongly given

There is constitutional comity, respect by one organ to another. There is no hierarchy. There are checks and balance. Legislative enactment is subjected to judicial review. Any decision by executive all subject to judicial review. But constitutional plenary powers in the nature of legislative, justiciability should be denied. I am placing reliance on Indira Gandhi v Raj Narrain.

@rashtrapatibhvn SG: at the cost of repetition, it is interwined with political thicket