Governor and President’s Powers | Day 11: Court cannot play headmaster, says Union, suggests states engage in a dialogue with Governors

Reddy: Bill cannot be in a “constitutional blackhole”

Reddy referred to the second proviso of Article 200, which enables the Governor to refer a Bill to the President. The proviso states that the Governor “shall not assent” and reserve “for the consideration of the President” Bills which derogate the powers of the High Court. Reddy contended that this does not indicate a discretion of the Governor’s hand but a lack of discretion on the Council of Ministers to advise the Governor to assent. He argued that the scheme of Article 200 otherwise compels the Governor to act on the aid and advice of the Governor. He then stated that the President, under Article 201, has the option to either grant or withhold assent to Bills that were reserved for consideration. However, there should be communication on the part of the President as the Bill cannot be in a “constitutional blackhole”.

Reddy then argued that the President’s refusal to grant assent to Bills that are part of the Concurrent List is open to judicial review. Moreover, if the President grants assent to a similar Bill in a separate state, then it becomes an issue of “discrimination”, further validating judicial review. 

Reddy pointed out that the Constitution framers wished to have a stronger unitary centre due to imminent concerns. Despite that, certain areas were left exclusively to the states. “At that point of time, the Governor had no discretion”, he said, urging that the scope of the Governor should not be expanded if the framers did not intend to do so.

Kumar: Governor has only one option 

In the hearing yesterday, various states differed on the extent of the Governor’s powers under Article 200. While Karnataka and Punjab said the Governor has three options, Kerala argued the Governor had five. 

Today, Kumar argued that the withholding of assent under Article 200 is a part of the procedure to grant assent. In effect, there is only one option available to the Governor—a grant of assent. The first proviso to the Article, he said, prescribes that the Bill be returned to the Assembly after withholding assent. Once the Bill is reconsidered and sent back to the Governor, he has no option but to grant assent.

Intervenors: Timelines on the Governor and President are valid

On behalf of DMK, the ruling party of Tamil Nadu, Wilson argued in favour of timelines, pointing out that states would be left to wander in Courts without them. The TN government had moved the Supreme Court in 2023, flagging delays by the Governor in granting assent to Bills. 

Wilson reiterated that the Governor cannot withhold a Bill on his own and “bury it in Raj Bhavan”. The Presidential Reference under Article 143, he said, was seeking answers to questions that were already addressed in the Tamil Nadu Governor Judgement, which was “helping the states”. 

Sankaranarayanan first argued on the nature of the Court’s advisory jurisdiction. He pointed out that it stood in a “completely different jurisdiction” than any other powers. Even Article 145(4), he said, refers to the advisory opinion as a “report” and not a “judgement”. 

He then argued that none of the past 15 references had overruled any judgement of the Court. He remarked that since 10 of the questions raised by the President were already answered by the Court in the TN Governor Judgement, the Bench must simply mark those paragraphs and not hear the case further. 

Advocate Avni Bansal, appearing for another intervenor, argued that the phrase “as soon as possible” has a higher threshold and that reading timelines into Article 200 does not change its character or diminish it. She argued that the Court should use the opportunity of the Presidential Reference to read the “right to time” as a concomitant right under Article 14, as the citizens have “no voice” if a Bill is withheld indefinitely. 

Luthra submitted that the state of Andhra Pradesh largely agreed with the Union on all aspects, but disagreed that states could not approach the Court through a writ under Article 32. He argued that there are several issues, such as pollution and man-made disasters, which require the states to invoke the Court’s writ jurisdiction. 

Mehta: Only 20 Bills not granted assent since 1970

Mehta attacked the argument that the Governor had no discretionary powers to act on Bills or withhold them except as per the aid and advice of the Council of Ministers as “constitutionally flawed.”He stated that if this argument were accepted, it would render the Governor a “postman…with a car and a bigger house”. He contended that the Governor has certain implied discretions. One of them flows from the Governor’s duty to “preserve, protect and defend” the Constitution. 

Mehta relied on B.P. Singhal v Union of India (2010) to argue that the Governor is “ordinarily bound” and not “always bound” to the aid and advice of the Council of Ministers. He provided the Punjab Water Dispute as an example, where legislation was aimed at undoing a previous settlement and the Governor had assented to it. Mehta argued that to prevent similar instances in the future, the Governor should be permitted to act on his discretion.

Mehta: Dialogue between state and Governor is crucial 

Mehta clarified that he was not justifying indefinite withholding of Bills but did not support a “straightjacket” timeline for granting assent. Relying on data from 1970 to the present, he claimed that only 20 out of 17,000 Bills were withheld by different Governors. He added that 90 percent of the Bills had been granted assent in the first month. Out of the 20 Bills, seven were the recent Bills that resulted in the writ petitions by the states. He stressed that in all these instances, the withholding power was not exercised “at the drop of a hat”. 

Mehta then undertook a reading of Article 200 and pointed out that the states opposing the reference had misinterpreted the word “withhold” to mean a “temporary deferment” of a Bill. He argued that the word “withhold”  cannot carry two different meanings. He stated that the Bill, if withheld, will “fall through”. 

He submitted that the states did not follow the appropriate political process of collaborating with the Governor and instead “knocked on the doors” of the Supreme Court hastily. The Court, he said, was made a judicial “headmaster” in a process that did not concern it. “There is dialogue, there are debates and exchange of views”, he remarked. 

Mehta will continue the arguments tomorrow on 11 September.