'Courts can't grant assent': BJP-ruled states in SC defend powers of Guv, Prez over bills

New Delhi, Aug 26 (PTI) Some BJP-ruled states on Tuesday defended in the Supreme Court, the autonomy of governors and President in assenting to bills passed by their assemblies and said "assent to a law cannot be given by court".

A five-judge Constitution bench headed by Chief Justice B R Gavai was informed by senior advocate Harish Salve that under the constitutional scheme power to accord assent to bills passed by state legislators vests with only governors or President and there was no concept of "deemed assent".

The bench is hearing the presidential reference on whether the court could impose timelines for governors and President to deal with bills passed by state assemblies.

Different state governments said judiciary couldn't be a pill for every disease.

"The court cannot issue a writ of mandamus asking the governors to grant assent to bills. Assent to a law cannot be given by the court. Assent to a law has to be given either by governors or by President," Salve, who was representing Maharashtra, submitted.

The bench also comprises Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar.

On April 8, a different bench of the top court invoked its powers under Article 142 to rule that 10 bills cleared by Tamil Nadu assembly and pending since 2020 with Governor were deemed to be assented.

Referring to Article 361 of the Constitution, Salve said President, or Governor "shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties".

He said the court could only inquire into decisions, including the proposed ones, by governors or the President.

"The court can only ask what your decision is. But the court cannot ask why you have taken a decision," Salve added.

Additional Solicitor General K M Nataraj, appearing for Uttar Pradesh and Odisha, said President and Governor enjoy functional autonomy and they have absolute discretion prior to giving assent. "When language and the Article are clear, we should not supply cassius omissus (situation which is not covered under the statute)," said Nataraj.

He said courts cannot prescribe timelines for President and Governor to act on bills passed by state assemblies.

Additional Solicitor General Vikramjit Banerjee, appearing for Goa, said under the constitutional scheme of legislation, the process was not complete unless it received the assent of Governor and, therefore, there couldn't be deemed assent.

"The Constitution does not envisage the concept of deemed assent and the judiciary can't insert itself giving deemed assent to bills passed by the assembly," he said.

Justice Kant said deemed assent was only a fiction, not having a basis in law, but could still be presumed in a situation.

Banerjee said while the British constitution discussed "deemed assent", the Indian constitution had nothing.

Solicitor General Tushar Mehta said certain provisions in the Constitution provided deemed action in clear terms, particularly where timelines were expressly prescribed.

Mehta referred to Article 198 (5) which says if a money bill passed by the state assembly is transmitted to the legislative council for its recommendations and is not returned to the legislative assembly within the said period of fourteen days, it shall be deemed to have been passed by both.

Senior advocate Mahesh Jethmalani, appearing for Chhattisgarh, argued the April 8 verdict "inserted something" which was not there in Article 200.

Salve earlier distinguished the powers of President and governors and said while the former acts only on the aid and advice of the central government, the latter possesses wider powers, including the authority to withhold assent.

"It is not a feature of Indian federalism that an assent must follow after a few rounds of confabulations. We have a limited federalism with hope that all these functionaries will act with wisdom," he said, adding that the Governor's power was not amenable to judicial review.

Referring to Article 200, which deals with the powers of governors with regard to bills, Salve said this provision does not set out a time limit under which the Governor has to act.

He said the passage of bills were also based on political deliberations and at times such a process might take 15 days and at times, six months.

"Such decisions are not taken by sitting in an ivory tower," he underscored and said once constitutional schemes delineate the power, their exercise by high constitutional functionaries was not amenable to judicial review.

He said the language of Article 361 -- governors and President shall not be answerable to any court any exercise of powers and duties -- was "very clear".

Governor's authority to withhold assent is constitutionally recognised, though using the term "veto" would be misleading, he added.

"Calling it veto is an uncharitable characterisation, but yes, Governor has the power to withhold. It is inherent in Article 200, and consistent with Article 201 which allows the Union to withhold assent even if the bill is within the state List," Salve said.

Senior advocates N K Kaul, Maninder Singh, Vinay Navare and Guru Krishnakumar made submissions for different BJP-ruled states in support of the powers of Governor and President.

Tamil Nadu and Kerala are scheduled to make submissions on August 28 and defend the April 8 verdict.

In May, President Droupadi Murmu exercised powers under Article 143(1) to know from the top court whether judicial orders could impose timelines for the exercise of discretion by the president while dealing with bills passed by state assemblies.

President's decision came in light of the April 8 verdict of the apex court, on powers of the Governor in dealing with bills passed by the Tamil Nadu government. PTI MNL SJK AMK AMK