SG: Can one constitutional authority prescribe a time limit for another constitutional authority?Constitutional framers were conscious that some functions need timelines while others don't need them.
SG reads Shamsher Singh vs. State of Punjab:In making a report under Article 356, the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers.The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers.This discretionary power is given to the Governor to enable him to report to the President, who, however, must act on the advice of his Council of Ministers in all matters.In this context Article 163(2) is explicable in that the decision of the Governor in his discretion shall be final and the validity shall not be called in question.The action taken by the president on such a report is a different matter.The President acts on the advice of his Council of Ministers.In all other matters where the governor acts at his discretion, he will act in harmony with his Council of Ministers.By allowing the governor to act against the Council of Ministers' recommendations, the Constitution does not intend to establish a parallel administration within the state. Similarly, Article 200 indicates another instance where the governor may act irrespective of any advice from the Council of Ministers.When the governor has discretion over a matter, he must perform his duties to the best of his ability. The governor is required to pursue such courses that are not detrimental to the state.”
SG: Where the Constitution expressly provides for the same—for example, Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f), and paras 9(2) and 18(3) of the Sixth Schedule; b. c. d. e. Where the interpretation of any Constitutional provision reveals the legislative intent, such as the powers granted by Articles 200 and 356 or the authority to fire a government that has lost confidence but refuses to resign, as mentioned in the Report of Justice M.M. Punchhi Commission and as has been concurred by a 5-Judge Bench of this Hon’ble Court in the Nabam Rebia case supra; Where the Constitutional Courts specifically declare that certain functions ought to be exercised by the Governor on his own; Power to summon or prorogue the House of Legislative Assembly under Article 174 when there are strong reasons and material to show that the incumbent Chief Minister and his Council of Ministers seem to have lost the majority of the House; situations or matters where the bias is inherent in the aid and advice of the Council of Ministers, like in the case of the grant of sanction for prosecution of the Council of Ministers.
SG: This Court has carved out an exception to the general rule of the aid and advice, which is not expressly stated in the Constitution; however, it is in consonance with the intent of the framers of the Constitution of India and also with the scheme of functions and powers of the Governor provided therein.A reading of the judgments discussed below and other provisions of the Constitution of India would show that, inter alia, the following are the exceptions to the general rule of aid and advice:
SG Tushar Mehta:Of late, Milords…You cannot take voters for a ride.Voters inquire about the due. Who said this, CJI? SG: I am saying, like in earlier times, voters cannot be taken for granted.
CJI: We have always said judicial activism cannot become judicial terrorism.
The Supreme Court is hearing the presidential reference case on timelines and procedures for the president and state governors when considering bills passed by state legislatures.
A Constitution Bench comprising Chief Justice of India (CJI) BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice Atul S Chandurkar is hearing the matter.
The Bench was constituted to decide the reference made by President Droupadi Murmu under Article 143(1) of the Constitution, which allows the President to seek the Court’s opinion on questions of law or matters of public importance.
The presidential reference challenges the top court’s April ruling, which prescribed timelines for the president and the governor to decide on bills and also held that the governor’s inaction under Article 200 (governor's powers regarding assent to bills passed by the state legislature) was subject to judicial review.
The Supreme Court's April 8 decision in a case brought by the State of Tamil Nadu against the Governor sparked the reference. The supreme court said in the decision that the fact that there is no time limit in Article 200 for deciding on bills passed by the state legislature cannot be interpreted as permitting an indefinite delay. A Bench of Justices JB Pardiwala and R Mahadevan held that the Governor must act within a reasonable time and that constitutional silence could not be used to stall the democratic process.
The Court held that although Article 200 does not specify any time limit, it cannot be interpreted to allow indefinite delay by the Governor in acting on bills passed by the State legislature.
With regard to the president’s powers under Article 201, the Court held that her decision-making is not beyond judicial scrutiny and must occur within three months.If there is any delay beyond that period, reasons must be recorded and communicated to the concerned state.
“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received, and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State,” the judgment said.
Following the ruling, President Murmu referred fourteen questions to the Supreme Court, raising constitutional concerns about the Court’s interpretation of Articles 200 and 201.The reference argued that the Constitution does not contemplate the concept of "deemed assent" in the event of delay and that neither article contains any express provision empowering the Court to prescribe deadlines. The reference objected to the Supreme Court's decision that established the concept of "deemed assent" in the event that either the president or the governor does not act on a bill within a predetermined amount of time. The reference argued that such a concept was contrary to the constitutional framework.
The President’s questions are understood to include whether the Supreme Court can effectively legislate a procedure where the Constitution is silent and whether timelines for assent encroach upon the discretionary domain of constitutional functionaries.
The reference also underscored that legislative functions are separate from judicial powers and that directions of the kind issued in the Tamil Nadu Governor's judgment risk upsetting the balance between the three branches of government.
Both Kerala and Tamil Nadu have opposed the reference as not maintainable.
According to TN's application, the reference is an appeal in the disguise of a reference, and it should be returned by the court unanswered since the Supreme Court cannot sit in appeal over its judgments.
The State of Kerala too filed an application before the Supreme Court to declare the presidential reference as not maintainable.
On the other hand, the Central government has supported the reference, arguing that the power of governors and the president to act on bills is a “high prerogative” function that cannot be bound by judicial timelines.
Pertinently, the Centre has also said that governors are not mere emissaries or outsiders in a state but carry the will of the people of the entire country into individual states.
During the hearing of the matter on Wednesday, the Supreme Court observed that if a governor is given the power to permanently withhold assent to the bills passed by the state legislature, it would leave the elected state government at the whims and fancies of an unelected governor.
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