Prez reference: Constitution does not allow deemed assent of bills, says SC

New Delhi, Nov 20 (PTI) The Supreme Court on Thursday said deemed consent of the governor or the president on bills at the expiry of a judicially set timeline is virtually a "takeover and substitution" of the executive functions by the judiciary, which is impermissible.

It said the concept of deemed assent of pending bills by the court in exercise of jurisdiction under Article 142 is virtually a takeover of the role and function of a separate constitutional authority.

In its unanimous opinion on the Presidential Reference, a five-judge Constitution bench headed by Chief Justice B R Gavai said the concept of 'deemed assent' in the context of Articles 200 and 201 presupposes that one constitutional authority, that is the court, could play a "substitutional role" for another constitutional functionary, that is the governor or the president.

"Such a usurpation of the gubernatorial function of the governor, and similarly of the president's functions, is antithetical not only to the spirit of the Constitution, but also specifically, the doctrine of separation of powers – which is a part of the basic structure of the Indian Constitution," the bench said.

The bench, also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar, said reliance on Article 142 cannot lead to supplanting constitutional provisions itself.

Article 142 of the Constitution empowers the top court to pass any decree or order necessary for doing "complete justice" in any case or matter pending before it.

"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," the bench said.

While Article 200 of the Constitution deals with assent to bills, Article 201 pertains to bills reserved for consideration.

"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," the bench said.

It noted that if there are no prescribed timelines under Articles 200 and 201, then their expiry too cannot amount to "deemed consent".

The bench said it is impermissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes a law.

"The exercise of constitutional powers and the orders of the president/governor cannot be substituted in any manner under Article 142, and we hereby clarify that the Constitution, specifically Article 142 even, does not allow for the concept of 'deemed assent' of bills," it said.

In a major verdict, the top court held that no timelines can be imposed on governors and the president to grant assent to bills passed by state assemblies, and governors do not have "unfettered" powers to sit on them for perpetuity.

The apex court said governors have only three options -- either to grant assent or refer the bills to the president or withhold assent and send them back to the assemblies for reconsideration under Article 200.

The bench held that the imposition of timelines would be strictly contrary to the "elasticity that the Constitution" so carefully preserves for constitutional authorities. PTI ABA MNL SJK ABA KSS KSS