NEW DELHI: Answering a reference from President Droupadi Murmu under Article 143, the Supreme Court on Thursday held that it cannot impose timelines on the President or Governors for granting assent to Bills under Articles 200 and 201. The Court said the idea of declaring “deemed assent” when such timelines are crossed runs counter to the Constitution’s spirit and violates the separation of powers, amounting to the judiciary taking over functions reserved for the Governor.
A Constitution Bench of Chief Justice BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar heard the matter over ten days before reserving its opinion on September 11.
The reference placed 14 questions before the Court, which the Bench answered in its ruling. Here are the questions and answers from the court.
What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution?
The SC clarified that under Article 200, the Governor has only three options upon receiving a Bill: assent, withhold assent, or reserve it for the President. Importantly, withholding assent is inseparably linked to the requirement of returning the Bill to the Assembly under the first proviso to Article 200. The proviso is not a fourth, standalone option but a qualification of the power to withhold assent. Therefore, if the Governor chooses to withhold assent, the Bill must be sent back to the Assembly. Allowing a Governor to withhold a Bill indefinitely without returning it would undermine federalism.
Is the governor bound by the aid and advice tendered by the council of ministers while exercising all the options available with him when a bill is presented before him under Article 200?
Ordinarily, the Governor acts on the aid and advice of the Council of Ministers. However, Article 200 is an exception, where the Governor exercises independent discretion. This discretion is evident from the phrase “in his opinion” in the second proviso to Article 200. Under this provision, the Governor may choose either to return the Bill to the Legislature or to reserve it for the President’s consideration.
Is the exercise of constitutional discretion by the governor under Article 200 justiciable?
The Court held that the Governor’s exercise of functions under Article 200 is not justiciable, and the judiciary cannot undertake a merits-review of such decisions. However, in an exceptional situation of prolonged, unexplained, and indefinite inaction, the Court may issue a limited mandamus directing the Governor to discharge his functions under Article 200 within a reasonable timeframe, without commenting on the merits of the exercise of the discretion.
Is Article 361 an absolute bar to the judicial review in relation to the actions of a governor under Article 200?
Although Article 361 is an absolute bar on judicial review, it cannot be used to negate the limited scope of judicial review that the top court is empowered to exercise in cases of prolonged inaction by the governor under Article 200. Although the Governor enjoys personal immunity, his or her office is subject to the court’s jurisdiction.
In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the governor?
The imposition of timelines would be strictly contrary to this elasticity that the constitution so carefully preserves. In the constitution, there was no prescribed time limit. It would not be appropriate for this Court to judicially prescribe timelines for the exercise of powers under Article 200.
Is the exercise of constitutional discretion by the President under Article 201 justiciable?
Questions 5, 6 and 7 answered together – The Court observed that Articles 200 and 201 are deliberately framed with a degree of elasticity, allowing constitutional authorities to perform their functions in varying contexts and to balance the complexities inherent in law-making within a federal and democratic system. Imposing judicial timelines would run counter to this carefully preserved constitutional flexibility. In the absence of any time limit prescribed by the Constitution, it would be inappropriate for the Court to mandate one for the exercise of powers under Article 200. On the same reasoning, the President’s assent under Article 201 is not justiciable, and the President likewise cannot be subjected to judicially imposed timelines for exercising powers under Article 201.
In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?
The President is not required to seek the advice of the Court every time a bill is reserved by the governor, as per the constitutional scheme. If need arise, the President may refer to the top court.
Are the decisions of the governor and the President under Article 200 and Article 201, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?
Under Article 200 and Article 201 of the Constitution of India, the governor and President respectively, are not justiciable. Bills can be challenged only if they become law.
Can the exercise of constitutional powers and the orders of/by the President/governor be substituted in any manner under Article 142?
No. The Court held that the exercise of constitutional powers by the President or the Governor cannot, in any manner, be substituted through Article 142. It clarified that the Constitution does not permit the introduction of a concept such as “deemed assent” under Article 142.
Is a law made by the state legislature in force without the assent of the governor granted under Article 200?
There is no question of a law made by the state legislature coming into force without assent of the governor under Article 200, as the governor’s legislative role cannot be supplanted by another constitutional authority.
In view of the proviso to Article 145(3), is it not mandatory for any bench of this Hon’ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a Bench of minimum five Judges?
The bench did not answer it, as it returned this question unanswered, stating: “We have already indicated in our opinion that Question 12 relating to Article 145(3) and the composition of benches in this court that hear cases of constitutional importance is irrelevant to the functional nature of this reference.”
Do the powers of the Supreme Court under Article 142 limited to matters of procedural law or Article 142 extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
The Court said that it has already indicated, as part of Question 10, its opinion that the question is “overly broad”, and thereby it was “not possible to answer in a definitive manner”.
Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union government and the state governments except by way of a suit under Article 131 of the Constitution?
The Court did not answer it as it was found to be irrelevant.
