Institute of Legal and Management Studies

Solicitor General of India Tushar Mehta told the Supreme Court on Thursday (August 28) that the President of India wants to press the questions raised in the Presidential Reference relating to the maintainability of a writ petition filed by a State Government against the Union Government under Article 32 of the Constitution.

Earlier, the Constitution Bench had proposed to avoid answering this issue raised in the Reference, saying that the substantive issues are relating to the grant of assent to Bills by the Governors and the President under Articles 200 and 201 of the Constitution of India. Suggesting that the issue can be kept open for being decided in a future case, the Court had asked the Solicitor General to get instructions from the Union on whether this issue is pressed in the reference.

Today, SG Tushar Mehta told the Court that he has instructions to seek answers on this issue.

"I have taken instructions. Out of all questions, I was to take instructions on two questions. A. Whether a writ petition would lie at the behest of the State Government under Article 32/226, and second, the scope and abmit of Article 361. The Honourable President would like your lordships' opinion. There are reasons. An opinion is requested when a situation has arisen or is likely to arise. These are the contingencies upon which the Hon'ble President can seekthe Court's opinion," SG said. He said that this was an issue which is recurring arising in many instances.

He argued that a State Government is not an entity which possesses fundamental rights. Therefore, Article 32, which is invoked to seek the protection of fundamental rights, cannot be invoked by a State Government. The disputes between the State Government and the Union Government have to be decided under Article 131 of the Constitution in an original suit. The SG argued that Article 131 therefore, bars a State's petition under Article 32.

SG further submitted that the State cannot maintain such a writ petition by claiming that it was a repository of the rights of the people. The State, as an entity, does not possess any fundamental rights and it cannot advance an argument that it was aggrieved by the violation of fundamental rights.

SG Tushar Mehta also argued that a writ petition under Article 226 is not maintainable against the Governor. By the very nature and functions of the office of the Governor, a writ of mandamus cannot be sought against him.

At this point, the Court asked if the Governor cannot be seen as a representative of the Union Government. "How does he not represent the Government of India? It is the GOI which entrust the authority to the Governor. As per the Constituent Assembly debates, the Governor is the vital link between the States and the Centre," CJI BR Gavai observed.

SG answered that the Governor is acting as per the aid and advise of the State Cabinet and not the Union Cabinet, though he is answerable to the President.

"In most cases, State Government appear and defend the Governors. On the constitutional scheme, Article 154 says the executive power of State vests with the Governor. Article 155, Governor is appointed on warrant by the President. He is not the same thing as the Union of India for the purpose of Article 131. It is for dispute between Central Government and States on issues of funds etc," SG said. The SG therefore argued that a dispute with the Governor cannot be brought under Article 131 as well.

With these arguments, SG wound up his submissions. Senior Advocate Siddharth Luthra, appearing for the State of Andhra Pradesh, said that he will seek instructions from the State regarding its stand on the issue, as the AP Government has filed Article 32 petitions which are currently pending.

Last week, the bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar had completed hearing the submissions of the Union and the States supporting it on the substantive issue whether the Court can fix timelines for the President and the Governor to decide on Bills.

The bench is now hearing the arguments of States who are opposing the Reference.

Live updates can be followed here.

Reports of previous days :

'We'll Be Just Expressing A View On Law, Not On TN Governor Decision' : Supreme Court On Presidential Reference Over Bill Timelines [Day 1]

If Governor Keeps Bills Pending For Long, What Is The Recourse? Supreme Court Asks AG In Presidential Reference [Day 1]

Dr.Ambedkar Opposed Setting Time Limit For President To Decide On Bill's Assent : Solicitor General Tells Supreme Court [Day 1]

If Bills Can Be Withheld Without Returning To Assembly, Won't Elected Govts Be At Governors' Whims? Supreme Court Asks [Day 2]

If Governor Is Sitting On Bills, There're Political Solutions; Courts Can't Fix Timeline : Solicitor General To Supreme Court [Day 3]

Governor Withholding Bills Indefinitely Will Make Legislature Defunct : Supreme Court In Presidential Reference Hearing [Day 3]

Supreme Court To Avoid Answering Question In Presidential Reference On Whether States Can File Article 32 Petition [Day 4]

If Governors Can Veto Bills By Withholding Assent, Even Money Bills Could Be Blocked : Supreme Court In Presidential Reference Hearing [Day 5]