Governor and President’s Powers | Day 3: Timelines for giving assent to bills will lead to Constitutional disorder, Union warns

Venugopal: Reference bypasses review

Venugopal opened arguments by asserting that the Reference, in “substance and effect,” was a review by the Union Government and was not maintainable. He contended that eleven out of the fourteen questions in the reference stood answered by the Tamil Nadu Governor judgement. 

He relied on Article 200, which contains no express time limit for gubernatorial action. He noted that earlier benches in the State of Telangana v Secretary To Her Excellency The Hon’ble Governor for the State of Telangana (2023) , State of Punjab v Principal Secretary to the Governor of Punjab (2023) and Tamil Nadu Governor cases had interpreted the expeditious nature of the phrase “as soon as possible” under the provision. The Tamil Nadu ruling went to the extent of prescribing fixed deadlines.

Pressed by the CJI on whether those earlier benches were of five judges as required under Article 145(3), Venugopal conceded they were benches of two and three judges. The CJI retorted, “So a five-judge Bench is bound by two judges?” Venugopal replied, “Unless you overrule it.”

He further pointed out that while a judgement under Article 141 constitutes binding law, an opinion under Article 143 does not carry the same authority.

Singhvi: ‘This is an appeal, however nicely you couch it’

Singhvi, appearing for the State of Tamil Nadu, argued that neither Article 143 nor an advisory opinion could substitute the review or curative jurisdiction as recognised under Rupa Hurra v Ashok Hurra (2002). He pointed out that Tamil Nadu was the only State to have obtained relief from the Court over delays in assent, and no intra-court appeal could be entertained. On the scope of the Reference, he maintained that all questions raised by the President were answered by the Tamil Nadu Governor judgement except questions 11, 12 and 14. These questions pertain to the validity of a state law which has not been assented, the mandate under Article 145(3) to refer questions of constitutional interpretation to a larger bench, and whether disputes between the Union and states can be resolved only through Article 131. 

Taking the Bench through the Cauvery Water Dispute (1991), he cautioned that reopening the merits of a settled case would amount to “a very serious subversion of Supreme Court integrity.” Contending that the Court was being asked to alter the contents and substance of a judgement between different parties, he remarked, “This is an appeal, however nicely you couch it….the entire concept of stare decisis will be completely subverted.”

Justice Narasimha remarked, “The adjudicatory decision stands on a completely different footing than advisory.” Singhvi responded that changing the “view” of the law and altering a decision are theoretically distinct. However, in practice the two could not be separated. In simpler terms, he meant that the decision of the Court in the advisory opinion would be given due importance even though it does not carry the same authoritative value. Once the opinion is rendered, one will be bound to follow it, Singhvi stated. 

Justice Nath retorted, “This is not right, you are presuming we will nullify the two-judge judgement.” CJI Gavai clarified, “We are expressing view of law and not the decision in Tamil Nadu.”

Reiterating his stand, Singhvi submitted that Article 143 did not confer appellate powers, and an advisory opinion inconsistent with a prior judgement would unsettle settled law. “If your Lordships can find a way to not disturb the Tamil Nadu decision, I have no problem,” he said.

Justice Narasimha noted that the outcome would remain advisory, and even if relied upon in the future, its binding character could still be questioned.

Venkataramani: Tamil Nadu judgement rewrote Constitution, encroached on legislative domain

Venkataramani, opening his submissions, submitted that the Tamil Nadu Governor judgement was a “departure” from settled precedents. He contended that the Court strayed into legislative domain.  “The Court virtually said ‘leave it to us’, we will solve the issues and provide answers. That is not the constitutional scheme,” he argued.

He argued that Articles 200 and 201, which deal with the assent of the Governor and the President respectively,are part of the Constitution’s basic structure, ensuring checks on non-compliant legislation. By mandating timelines and limiting the Governor’s discretion, he said, the Tamil Nadu ruling effectively rewrote the provisions. “Can the Court, under the guise of interpretation, take pen and paper and amend the Constitution?” he asked. He warned that such an approach violated separation of powers.

Venkataramani stressed that the Division Bench in the Tamil Nadu case breached the mandate under Article 145(3), which states that any case involving substantial constitutional questions must be heard by a Constitution Bench. He added that while the Governor must ordinarily act on the aid and advice of the Council of Ministers, the “four-option theory” endorsed by the Sarkaria Commission and earlier rulings recognised a wider discretion, including withholding assent in certain circumstances. The judgement, he said, “virtually robbed the Governor and President of their application of mind.”

Turning to Article 142, Venkataramani cautioned against its use to override constitutional provisions. “Inherent powers cannot be exercised to build a new edifice where none exists,” he said, criticising the Court for granting “deemed assent” in place of the Governor. Notably, the Court had used the inherent powers to deem assent on 10 state bills passed by the Tamil Nadu assembly. “The Supreme Court cannot step into the shoes of the authority,” he insisted.

Mehta: President seeking clarity, not appeal

Mehta stressed that the Reference is not an appeal but a constitutional query from the President. “The President is seeking clarity on what to do when faced with a constitutional problem. What should the President or Governor do?” he asked.

He argued that while courts do not usually reopen settled matters, precedents like the 2G case show that even in a reference, a past judgement can be reconsidered. “If this Court holds that the Tamil Nadu judgement is not correct law, that is not appellate power… it is an exercise of inherent powers,” he said. Justice Kant, however, reminded that the proceedings were strictly advisory.

Mehta warned that the Tamil Nadu ruling had created a functional dilemma, stating, “Am I bound by the three-month deadline? By directions under Article 200? Or should every State now rush to this Court?” He said that constitutional functionaries like the President and Governors could not be bound in this manner, and the Court should instead clarify their true role within the federal structure.

Taking the Bench through history, Mehta traced Articles 111, 200 and 201 back to the Government of India Acts of 1915 and 1935, and the Constitutional drafting process led by B.N. Rau and Dr. B.R. Ambedkar. He submitted that timelines originally proposed for assent were consciously dropped by the Constituent Assembly. “The idea was never to bind the highest constitutional functionaries. They are expected to discharge duties in accordance with law,” he explained.

On the role of the President, Mehta stressed that, unlike other constitutional functionaries, both the President and Governors swear an oath not only to uphold but also to defend the Constitution. That duty, he argued, could not be curtailed by judicially-imposed timelines or directions.

Arguments by other Senior Advocates

Kaul, appearing for the State of Madhya Pradesh, argued that 2G clarified that a review or decision deals with lis inter partes and any view on law remains subject to overruling and modification. 

Salve pointed out that under Article 141 a judgement binds all courts except the Supreme Court itself. He stressed that “maintainability” was being used loosely since the doctrine of precedent is self-imposed and does not prevent the Court from engaging with questions of law. He cautioned against “putting the cart before the horse” when the Court had not even dealt with the questions raised. He added that decrees are binding until set aside and multiple judgements in the past had spoken in different voices, which the present Bench could reconcile. 

Singh added that there was no question of overruling here, but in the course of answering the reference, the Court could still address the issues.

The Court will continue to hear the matter tomorrow.