Presidential reference: SC says it cannot impose timelines for Governors, President to act on Bills, also can't grant 'deemed assent'

New Delhi, Nov 20 (PTI) The Supreme Court on Thursday held that the court cannot impose any timelines on Governors and the President to grant assent to Bills passed by state assemblies but at the same time said Governors do not have “unfettered” powers to sit on the Bills for "perpetuity".

In its unanimous opinion on the Presidential Reference, a five-judge Constitution bench headed by Chief Justice B R Gavai also held that "indefinite delay" by the Governors will be open to "limited judicial scrutiny" and that deemed assent of Bills cannot be granted by the apex court by using its plenary power under Article 142. Deemed assent would amount to virtual takeover of the role of a "separate constitutional authority," it said.

In its 111-page judgment that could trigger a fresh debate on issues relating to federalism and Governor's power over state Bills, the court made it clear that "inaction" by Governors that is "prolonged, unexplained and indefinite" will certainly invite "limited judicial scrutiny” though the merits of their action under Article 200 cannot be looked into by Courts.

Indefinite delay in granting assent to multiple Bills has led to frequent run-ins between the Opposition-ruled States, especially Tamil Nadu, Kerala and Punjab and their Governors following which some state governments have sought the intervention of the top court.

The name of the author judge was conspicuously absent in the judgment. The practice is a rarity but it was adopted by a five-judge Constitution bench in its verdict in 2019 on the Ram Janmabhoomi-Babri Masjid land dispute case. CJI Gavai is due to retire on Sunday after a six-month tenure.

In another significant ruling, the top court said the discretion of the Governor as to how to deal with the Bills are not dependent on the aid and advice of the Council of Ministers.

The court underlined that Governors have only three options -- either to grant assent, or refer the Bills to the President or withhold assent and send back them to the Assemblies for reconsideration under Article 200 of the Constitution.

The bench, also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar, held that the imposition of timelines would be strictly contrary to the “elasticity that the Constitution” so carefully preserves for constitutional authorities.

“In the absence of constitutionally prescribed time limits, and the manner of exercise of power by the Governor, it would not be appropriate for this Court to judicially prescribe timelines for the exercise of powers under Article 200,” 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.

The top court was answering the Presidential reference in which President Droupadi Murmu had sought the opinion under Article 143(1) of the Constitution to know from the top court whether timelines could be imposed by judicial orders for exercise of discretion by the President while dealing with the Bills passed by state assemblies.

In a five-page reference, Murmu posed 14 questions to the apex court and sought to know its opinion on powers of Governors and the President under Articles 200 and 201 in dealing with Bills passed by the state legislature.

The President's decision had come after the April 8 verdict by a two-judge bench of the apex court on powers of the Governor in dealing with Bills passed by the Tamil Nadu government. The verdict had declared the Tamil Nadu Governor's action of withholding of 10 Bills as illegal and said they were deemed assented to. The court used its powers under Article 142 to treat the Bills as approved, The Constitution bench was also critical of the exercise of powers under Article 142 by its bench headed by Justice J B Pardiwala in its verdict while fixing a three-month period for Governors and the President to grant assent to Bills.

“We have no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution,” it said.

The judgement though has a word of caution for Governors, saying they cannot withhold assent and Article 200 does not confer “any unfettered powers…In fact, it does not in any way deviate from the concept of a responsible constitutional government”.

“We clarify… that the Governor has no option to withhold a Bill simpliciter. Therefore, it is not that the discretion so conferred, allows a situation wherein the Governor could frustrate a Bill in perpetuity." “The text of Articles 200 and 201, has been framed in such a manner, so as to provide a sense of elasticity, for constitutional authorities to perform their functions, keeping in mind the diverse contexts and situations, and by consequence the need for balancing that might arise in the process of lawmaking in a federal, and democratic country like ours." It referred to the Articles and said they do not prescribe time limits, and the manner of exercise of power by the Governor and hence, it is not open for the top court to “judicially prescribe timelines”.

Solicitor General Tushar Mehta expresses gratitude to the top court on behalf of President Murmu for what he called the 'illuminating' verdict.

There was no official reaction from ruling DMK yet but senior party leader TKS Elangovan told PTI Videos the verdict was a "good judgement" and that it would be useful in other cases involving gubernatorial powers.

The top court rendered its opinion on 11 out of 14 questions posed by President Droupadi Murmu post the April 8 verdict after finding three questions irrelevant to the functional nature of the reference.

It said the dialogic process is part of the federal scheme of the Constitution, and the system of checks and balances.

On the issue of justiciability, it said the President is not required to seek advice of the apex court by way of reference under Article 143, every time a Governor reserves a Bill for his assent.

It said the decisions of the Governor and President on the fate of Bills are not justiciable before they become laws.

“It is impermissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law. Pertinently, discharge of its role under Article 143, does not constitute ‘judicial adjudication’,” it said.

The bench said, however, courts can take cognizance of inaction and for that limited purpose, a direction can be issued asking the Governor to exercise his constitutional choice within a reasonable period of time.PTI MNL ABA SJK ABA GSN GSN