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21 Aug 2025, 10:37 AM
During the hearing of the Presidential Reference on issues related to assent to Bills, the Supreme Court on Thursday (August 21) orally remarked that if the Governors withhold Bills indefinitely, then it will make the legislature defunct. Are the Courts powerless to intervene in such a situation, the Court asked.
A bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar is hearing the matter. Responding to the Solicitor General's submission that the judiciary cannot issue binding directions to the President and the Governor, CJI BR Gavai asked :
"Suppose a particular function is entrusted with the Governor, when this court has set aside the constitutional amendment which took away the power of judicial review as it was violative of the basic structure, with those judgments, can we say that however high the constitutional functionaries may be, if they do not act, the court is powerless? Assent is given or rejected, the reasons we are not going into, why he has given or not given. Suppose an act passed by the competent legislature, if hon'ble governor only sits over it, then?"
SG Tushar Mehta said that the Court should not lay down a precedent based on extreme situations. He also repeated the submission made during the forenoon session that in such situations, the solutions are political and not judicial. "Solutions lie elsewhere, solutions lie in the political sphere. Such cases are solved through the democratic political process. It is wrong to believe that there would be circumstances where every other organ would fail and therefore the only available organ is this Hon'ble Court. This Court is the custodian of the Constitution, but there are problems which are not solvable by this Court. When such things happen, we have to expect that the Constitutional functionaries are responsible and responsive, because they are answerable to the people."
"Hon'ble Governor is not answerable to the people," CJI commented. "Governor is the most vulnerable office, he can be removed for any reason..if something happens, the system takes care of it in the administrative side," SG replied.
Justice Narasimha asked if the Governor can claim constitutional immunity in such situations. "There is a constitutional immunity provided to why the Governor granted assent, why he refused assent or why he referred to the President. But we are today in this case referring to the procedure prescribed, which stands on a different footing. As regards procedure, where is the Constitutional immunity?" Justice Narasimha pointed out that as per the Kesar-i-Hind case judgment, a distinction has been drawn between the actual decision taken by the Governor and the decision-making process, with the former being barred from judicial review and the latter open to judicial review. "When the Constitutional process of granting, not granting or referring, is not being done, to what extent any kind of immunity applies unendingly?" Justice Narasimha posed.
SG replied that he was not basing his arguments on the basis of any immunity and pointed out that the Court has even interfered with the Governor's decisions for Presidential rule under Article 356. He added that his argument was based on whether the Court can take over the Governor's decision-making process.
The bench then raised the query about the remedy available when a Governor is indefinitely delaying a Bill which was passed by a duly elected legislature. If the Governor is simply withholding a Bill without exercising the option of returning it to the Assembly in terms of the first proviso to Article 200, the legislature would become defunct, said the bench.
"The assembly, elected by a majority, unanimously passes a Bill, if the Governor does not exercise the proviso [to Article 200], it will be making the legislature totally defunct. The persons who are elected, what is the safeguard for them?" CJI Gavai observed.
SG repeated that the solution is not the judicial forum. Either the Parliament must amend the Constitution to provide for timelines or the issue must be resolved politically, he repeated. The Court cannot be a substitute for the role of another functionary, the SG said, taking objection to the TN Governor's judgment declaring deemed assent for the Bills.
CJI then stated that the present bench is not sitting in appeal over the TN Governor judgment, as he said on the very first day of the hearing as well.
CJI pointed out that the Court is hearing cases from four States - Kerala, Tamil Nadu, Punjab and West Bengal- against the Governors delaying Bills.
"We have petitions from four states. We appreciate the timeline argument. But, consider a situation where the Governor ought to act, but sits over four years, what happens to democratic set up or the 2/3 majority by which the state is elected and represents will of people?" CJI Gavai asked.
SG reiterated his stand that the judiciary cannot intervene in such a situation. "If someone approaches the President saying that the case is pending for 7 years.. in trial court and my maximum punishment is 7 years, can the President acquit me? For every problem, the solution is not adjudication by this court," SG said.
Before the SG concluded his submissions, the bench suggested to him that the last query in the Presidential Reference - whether a State can file a petition under Article 32 of the Constitution - be kept open. SG said that he will seek instructions on this aspect.
Senior Advocate Neeraj Kishan Kaul, for the State of Madhya Pradesh, supplementing the arguments of the Solicitor General, said that 'withholding' was a standalone option available to the Governor in terms of Article 200, and such a decision need not be coupled with returning the Bill to the Assembly. To read the first proviso as a necessary adjunct to the substantive power under Article 200 is wrong, he asserted.
Pointing out that Article 200 uses the word 'shall', CJI asked : "If the Governor for time immemorial does not declare he is withholding, is the court powerless?"
The hearing will continue next Tuesday.
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Reports of previous days :