Governor and President’s Powers | Day 7: Indefinite withholding of assent would upset the constitutional scheme, Tamil Nadu argues

Mehta: President seeks clarity on maintainability of state’s writ petitions

Mehta began with the question dealing with powers of state government to file writ petitions against the Union under Article 32 or 226. 

Mehta submitted that Article 32 remedies were meant to enforce fundamental rights, and states could not “claim them for itself”. He added that even private parties cannot invoke Article 32 without showing violation of fundamental rights. He added that assent to bills under Article 200 fell within the legislative procedure scheme of the Constitution that was covered within Articles 196 and 201. He asked whether any stage of a legislative process, in this case assent, can be challenged at the writ jurisdiction. 

On Article 226, Mehta questioned whether a High Court could intervene even after a Governor had granted assent. Further, he asked whether an aggrieved person can challenge an assent. CJI Gavai responded that Mehta’s example was “a totally different situation.” The Chief clarified that a law once implemented after an assent becomes a distinct issue. The real question, according to CJI Gavai, was whether a Governor could indefinitely sit over a Bill that was repassed by the legislature. Mehta answered that the time taken by a Governor would depend on the facts of each case. CJI Gavai remarked that the Governor would not be justified in sitting over a Bill “for six months”, citing the Tamil Nadu Governor ruling.

Mehta maintained that the failure of one constitutional organ to discharge its duties did not entitle the Court to direct another. To test the point, CJI Gavai asked, “If this Court does not decide the matter within ten years, would it be justified for the President to issue an order?” Mehta maintained that no mandamus could compel the Governor. Further, a Division Bench could not set aside a decision of the Governor and deem assent on bills. “By very nature and function of Governor, a writ of mandamus cannot be filed. Article 226 would not lie,” he argued.

Justice P.S. Narasimha asked whether all issues and directions could be brought under Article 131, which grants the Court original jurisdiction to hear disputes between the Union and the states. Mehta replied that the Governor did not represent the Government of India, only the President. The CJI countered, “How does he not represent the Government of India? In the debates, framers said the Governor is the vital link between Union and State.” Mehta answered that the Governor may act either on advice of the Council of Ministers or in discretion, but is answerable only to the President.

Mehta: Governor has constitutional immunity 

Mehta then addressed the issue of the constitutional immunity granted to the Governors and President under Article 361. He pointed out that the Supreme Court had first issued notice to the Governor and had subsequently withdrawn it in Nabam Rebia v Deputy Speaker (2016). In that Judgement, the Court had discussed the discretionary powers of the Governor when it came to the summoning of a session and the removal of a speaker of a state assembly. At this juncture, Senior Advocate Kapil Sibal pointed out that the Governor had appeared voluntarily and filed an affidavit in that case. Justice Vikram Nath observed, “On his own volition, he can come.”

Singhvi: Governor discretion narrowly confined

Singhvi, opening his submissions, argued that the Governor had no general discretion and was bound by the aid and advice of the Council of Ministers, unless expressly provided by the Constitution. He pointed out that the Government of India Act, 1935, however, allowed the Governor to act in an independent capacity under Section 75. This was consciously omitted by the Constituent Assembly, he argued. He stated that this removal was deliberate to confine the Governor’s discretion to a very narrow field. 

When CJI Gavai asked whether Article 163, which deals with the Council of Ministers advising the Governor, created a space for discretion. Singhvi responded that it did not. He noted that Nabam Rebia only acknowledged the rare, specific situation where the Governor can act independently. Singhvi drew from Ambedkar’s speeches in the Constituent Assembly to argue that the Governor was merely an “ornamental” head.

Singhvi: Not more than three options under Article 200

Singhvi stressed that Article 200 grants the Governor only three options in relation to a Bill: to assent, to withhold assent and return it to the Assembly, or to reserve it for the consideration of the President. He argued that there was no fourth option to withhold assent without sending it back to the assembly. Equally, there is no fifth option where a Governor refers a Bill to the President that was sent back to him after reconsideration by the state assembly. According to Singhvi, the constitutional scheme made it clear that the Governor exhausts all options after he chooses to return a Bill. 

He submitted that the power to reserve a Bill for the President was also an act guided by the Council of Ministers. Any contrary reading, Singhvi argued, would subvert the parliamentary system of government and elevate the Governor into an authority above the elected legislature. 

Singhvi: Supreme Court has limited Governor’s field of discretion

Singhvi relied on Shamsher Singh v State of Punjab (1974), which declares that the President and Governor shall exercise their formal constitutional powers only in accordance with ministerial advice “save in a few well-known exceptional situations”. He then noted the “tiny strips” of discretion described in the Judgement. He then read Nabam Rebia, which warned that an expansive discretion to the Governor would result in an “all-pervading super-constitutional authority.” Singhvi submitted that the Assembly Debates and precedents make it clear that Article 200 was intended to facilitate law-making and not obstruct it. 

Singhvi: Bill dies only if the state does not return the bill after reconsideration 

Focusing on the proviso to Article 200, Singhvi submitted that viewing the withholding of assent as a distinct option would make a mockery of the whole proviso, and “liquidate” the constitutional command that action be taken “as soon as possible.” He stated that the withholding of assent on bills had become “semi-permanent” in Telangana, Andhra Pradesh and Tamil Nadu. 

The Bench questioned why the proviso states that the Governor “may” return bills to the legislature. Singhvi explained that the “may” is an enabling expression and becomes a mandate once the Governor exercises his second option to withhold assent. He accepted that a Bill only “falls through” when the state does not return the Bill. He stated that any other interpretation would create a “dominating will” on the Governor. When CJI Gavai asked what the Court could do if a Governor simply refused assent, Singhvi submitted that judicial intervention is necessary to prevent constitutional stagnancy

Singhvi: Article 207 and Money Bills do not enlarge gubernatorial discretion

Singhvi argued that the Governor is bound by the aid of the Council of Ministers even in matters relating to finance bills under Article 207. This was in response to arguments made by Senior Advocate Harish Salve and Mehta, where he said that the Governor could even withhold a money bill, under Article 200, and described the argument as being ‘misplaced’. When Mehta interjected to say he had never argued that money bills can be withheld, Singhvi noted that the point had nevertheless been pressed by Salve and reiterated that the text and structure of the Constitution exclude the suggestion that Article 207, enlarges gubernatorial power.

Singhvi: Reservation after return impermissible

Singhvi next turned to whether the Governor could, after returning a Bill under the proviso, later reserve it for the President. He argued that the proper course is to reserve it at the first instance. The Bench asked Singhvi if the Governor could indefinitely withhold assent on bills that were passed by the legislature in the second round. Singhvi responded that the Constitution does not allow such a “second-stage” reservation. This would upset the legislative process, he stated.

The parties opposing the reference will continue arguments on 2 September.