Actions of governors, President on Bills not justiciable: SC

New Delhi, Nov 20 (PTI) The Supreme Court on Thursday ruled that the actions of governors and the President in granting, withholding, or reserving assent to bills are not subject to judicial review.

The observations, stressing the separation of powers between the judiciary and the executive, were made in a judgment by a five-judge Constitution bench headed by Chief Justice B R Gavai while answering the Presidential reference on the issue of fixing timelines in granting assent to bills by governors and the President.

“We find no reason to deviate from the binding decisions of this Court and for the additional reasoning... are of the considered view that the discharge of the Governor’s or President’s functions under Articles 200 and 201 respectively, is not justiciable,” it held.

The verdict dealt with the crucial issue of justiciability of functions of governors and the President under Article 200 and Article 201, respectively and effectively overturned the views of a previous two-judge bench in the Tamil Nadu case that the governor's actions to be justiciable and had laid down grounds for such challenges.

“The judicial review of a Bill, that is anterior to its enactment as law, is unheard of and unfathomable in our constitutional practice and history. Judicial review of legislation is premised on the fact that it will be considered by the court only after it has been made into law – i.e., assented by the Governor or President, as the case may be, and brought into force. It is this judicial review over legislation that our constitutionalism envisages, and this particular form is an essential feature of our basic structure,” it said.

Article 200 empowers governors to act on bills passed by the state legislature by either granting assent, withholding assent, or reserving the bill for the President’s consideration. They may also return a bill to the legislature with recommendations or for reconsideration.

Article 201 says, “When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom...”.

The Constitution bench found that the Tamil Nadu judgment had deviated from a consistent line of rulings by larger benches, which had explicitly held that a "merits-review or the correctness of the assent granted by the President was not within the purview of permissible judicial scrutiny." The opinion characterised the role of the governor under Article 200 not as a final executive order, but as the initiation of a "dialogic process" within the constitutional framework.

Referring to judgments, the bench said, “We are unable to endorse the view advanced in State of Tamil Nadu … since the Governor cannot withhold assent simpliciter, the only options he has are to initiate the dialogic process under Article 200 – either through returning the Bill to the Legislature for reconsideration or reserving it for the President’s assent, who in turn under Article 201, may choose to return the Bill with a message to the Legislature as well.

“The initiation of a dialogic process where other constitutional functionaries are consulted before the Governor or President takes a decision on whether the Bill must be assented to or not, is not a justiciable act in itself.” It said the dialogic process is a part of the system of checks and balances, and the federal system that our Constitution envisages and such a process, contemplated under Articles 200 and 201, is advisory, persuasive, deliberative, mediative, and consultative.

“It stands at a markedly different position from the discharge of an adjudicatory function, or a definitive exercise of executive power – both of which are subject to judicial review.

"The discharge of functions under Articles 200 and 201, however, is simply the initiation of a dialogic process, which cannot be the subject of judicial review,” it said.

Under the court’s formulation in the Tamil Nadu case, each of the three options -- assent, reservation and return of the Bill -- becomes justiciable.

“We find that such a conclusion belies logic. Taking this line of reasoning further, if the reservation of a Bill, or withholding and returning it to the Legislature, is justiciable, then the grant of assent too would necessarily have to be subject to judicial review. This opens another front to challenge a Bill, and the resulting legislation...," it said.

In other words, to determine whether a Bill has been correctly accorded assent or not, the primary document brought before the court’s consideration will be the text of the Bill, anterior to the stage of it becoming a law, it said. PTI SJK RHL