Governor and President’s Powers | Day 12: Union opposes imposition of rigid timelines; Bench reserves judgement

Mehta: Discretion exists even after aid and advice

Mehta challenged the argument advanced by the Opposition states’ that the Governor has no discretionary powers once the Council of Ministers tend their aid and advice. As an example, he referred to Article 213, which deals with the Governor’s ordinance-making power and pointed out that the provision contemplates discretion. Relying on the seven-judge bench decision in Krishna Kumar Singh v State of Bihar (2017), he argued that this provision had been recognised as an area where discretion can survive despite ministerial advice.

He submitted that Article 200 should be understood in the same spirit. The first part of the Article, he said, obliges the Governor to act on aid and advice. However, the provisos carve out situations where he may act differently, including where he deems it necessary to reserve a Bill for the consideration of the President. According to Mehta, this necessarily implies some discretion, since the Governor must form an opinion about whether a reservation is warranted.

To illustrate further, he gave the example of a Chief Minister facing corruption allegations seeking sanction under the Prevention of Corruption Act, 1988. In such a case, he said, it would be unreasonable to insist that the Governor follow the advice of the very Council that is implicated. 

As another example, he pointed out that while the power to summon the Assembly for a floor test does not explicitly mention discretion, courts have recognised that the Governor can act to ensure the House reflects its true majority.

Mehta: Extreme situations must inform interpretation

Mehta asked the Court to read Article 200 keeping in view extreme contingencies, so that the constitutional framework remains capable of withstanding moments of crisis. He argued, “The Constitution will have to be interpreted with harshest examples to withstand the time.”

As illustrations, he cited scenarios where a state legislature might pass a Bill declaring it no longer part of the Union, or one exempting industrialists from all taxation while burdening the rest of the population. In such situations, he said, it would be untenable to hold that the Governor must mechanically assent.

Referring to Kesavananda Bharati v State of Kerala (1973), Mehta stressed that constitutional provisions are often tested against extreme hypotheticals. CJI Gavai acknowledged his submission, remarking, “Your proposition is that while interpreting this, we have to take into consideration extreme situations and have to be cautious.” Justice P.S. Narasimha, however, remarked that such reliance on extreme examples was an “age-old technique.”

Mehta: “withholding assent” means Bill “falls through”

The Bench turned to the critical question of what happens when assent is withheld. Mehta argued that the Constituent Assembly debates frequently used the term “falls through” to describe the fate of an amendment that was rejected. This understanding, he said, should apply to Bills on which the Governor withholds assent. “Whenever the amendment is not accepted, it falls through or dies,” he said.

Senior Advocate Kapil Sibal, representing the state of West Bengal, immediately challenged this interpretation. He pointed out that there were several instances where a Bill was initially marked as withheld, but later assent was granted and it became law. “According to my learned friend, whenever he withholds, it falls through, but in reality, such Bills have become Acts,” he said.

CJI Gavai suggested that the record of Bills withheld and later enacted should be placed before the Court to clarify this point. Senior Advocate P. Wilson immediately added that in Tamil Nadu, ten such Bills had been returned as withheld and then passed afresh by the legislature.

Mehta: Governor cannot sit endlessly on bills, but Court cannot impose rigid timelines

Mehta categorically stated that endless inaction by the Governor was impermissible. However, he resisted calls for judicially imposed deadlines. “Imposing timelines would be self-destructing apart from the fact that it is not permissible,” he argued. According to him, the constitutional phrase “as soon as possible” was deliberately chosen to leave space for context-sensitive action, rather than a rigid formula.

Mehta sought to reassure the Bench that, in practice, most Bills are dealt with promptly., “For the last 50 years, 90 percent of Bills have received assent within one month,” he said, and explained that delays sometimes occurred because the executive itself had requested the Governor to hold a Bill for further consultation, or because legislatures had rushed through politically popular measures. He reiterated that straightjacket timelines are not permissible. The Constitution instead “envisages constitutional collaboration and consultation.”

Mehta: Mandamus against Governor breaches separation of powers

Mehta strongly criticised the use of the writ of Mandamus against a Governor for actions (or inactions) under Article 200. According to A.K. Roy v Union of India (1981), he said that even in areas where judicial review exists, such as proclamations under Article 356, it has been exercised sparingly.

“Would one constitutional organ issue mandamus to another constitutional organ when discretion is available?” Mehta asked rhetorically.

CJI Gavai responded that he believed in the separation of powers. But if one constitutional functionary fails to discharge its duty, he questioned if the Court, as the custodian of the Constitution, must sit idly. 

Mehta maintained that compelling a Governor by mandamus to act in a particular manner would “violate the theory of separation of powers.”

Mehta: Selective reading of precedents is impermissible

Mehta blamed the opposing States for selectively relying on case law. He contended that the judgements such as Nabam Rebia v Deputy Speaker (2016) had been misused to argue that Governors have no discretion. “It is wholly incomplete and a clear attempt to mislead the Court,” he said, adding that the Judgement itself recognised limited discretion under Article 200.

Sibal disputed this reading, insisting that Nebam Rebia did not endorse the Governor’s power to withhold assent. CJI Gavai interjected that the Judgement was on record in full and counsel should refrain from selective quotation. Justice Narasimha added that such “cut and paste” techniques of advocacy should not become the norm.

Venkataramani: Court should not shackle Article 200

Venkataramani urged the Court to approach Article 200 with caution, warning against judicially imposed restrictions on the Governor’s powers. He said that it would be a “fallacy” to assume that because some Governors delay assent, all Governors must be viewed with suspicion. Article 200, he argued, continues to hold a valid place in the Constitution. Its retention reflects a deliberate choice by the framers. To subject it to judicial shackles, he said, would risk turning the Court into a “deputy legislator.” Drawing from Justice Oliver Wendell Holmes’ observations on “hard cases,” Venkatramani said that the Court should resist entering into a new field of prescribing how the Governor must exercise assent.

Explaining the scheme of the provision, he clarified that the first proviso of Article 200 applies where the Governor is otherwise inclined to assent but believes the Bill could be improved. In such a case, he may return it with a message, triggering a full discussion in the legislature; if the House reiterates the Bill, the Governor is then bound to assent. The process, he submitted, involves a composite line of reasoning. First, the Governor considers withholding assent, then whether to reserve the Bill for the President and if neither applies, assent must follow. 

Stressing that Article 200 contains “sufficient intrinsic guidelines” to prevent abuse, he cautioned that judicially laying down adequacy tests or timelines would risk an “endless exercise”. When CJI Gavai asked him whether the Governor could indefinitely withhold assent, the Venkataramani replied that “nobody has done that” in practice, reiterating his view that Article 200 is essentially part of the legislative process itself.

With the rejoinder arguments complete, the Bench reserved its judgement after nearly 12 days of arguments.