Should court sit powerless if Governor delays assent to bills indefinitely? asks SC; wonders if even money bills could be "withheld"

The Supreme Court on Tuesday wondered whether the court should sit powerless if a Governor delays assent to bills indefinitely and if the constitutional functionary's independent power to withhold a bill would mean that even money bills could be blocked.

The court raised the questions after some BJP-ruled states defended the autonomy of Governors and President in assenting to bills passed by a legislature, submitting that ''assent to a law cannot be given by court''. The state governments also contended that judiciary cannot be a pill for every disease.

A five-judge Constitution bench headed by Chief Justice B R Gavai asked the Madhya Pradesh government defending the powers of the Governors and the President in using discretionary powers while dealing with the bills passed by the state assemblies that whether the court will be powerless if the Governor sits over the bills for years.

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. It also comprised Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar.

''Suppose a bill is passed in 2020, will the court be powerless if the assent is not granted even in 2025. Suppose both houses of legislature have given approval on two occasions, why does the President or the Governor sit on it for an indefinite period of time? We appreciate that we can't fix the timeline, but if someone sits will the court be powerless? ''We understand that the court should not assume abuse of powers, especially when high constitutional functionaries are involved. We appreciate this submission," the bench told senior advocate Neeraj Kishan Kaul, appearing for the MP government.

Kaul replied that the action of judicial review is always tested on the touchstone of the Constitution and when there are no justiciable manageable standards to judge an action, the action is not susceptible to judicial process.

"As far as timelines are concerned, it is impossible to say within this time the Governor or President must decide or act," he added.

The CJI asked Kaul, "if discretion under Article 356 (imposition of President rule) is justiciable, why not under Article 200 (powers of governor in dealing with bills)?" Kaul replied that there are a lot of complexities involving constitutional concern, inter-se relationships and this court has held in earlier decisions that assent by the President is not justiciable because there are no legally manageable standards.

He added that the court should leave the matter to the Parliament to decide and the courts cannot rewrite the constitution by interpretation.

Justice Narasimha told senior advocate Harish Salve, appearing for the Maharashtra government, that the union government says the power of withholding stands on its own and the Governor can withhold the Bill.

"Therefore, when you independently exercise the power of withholding, it is a little problematic. Because, at the threshold, the Governor withholds the Bill. There is a problem because with this power, even a money bill can be withheld. The proviso will not apply there. There is a big problem with that interpretation. Assuming for a minute that it is permissible, even at the threshold, a Bill can be withheld," Justice Narasimha said. A money bill cannot be withheld in a normal course.

Solicitor General Tushar Mehta, appearing for the Centre, intervened and clarified that there is no question of the Governor withholding the money bill as under Article 207 of the Constitution, the money bill is tabled with the consent of the Governor.

Salve submitted that there can be a situation where the money bill passed by the legislature is different from the version recommended by the Governor.

"If what is approved finally does not accord with what was recommended by the Governor, the Governor can withhold assent,'' he said.

CJI Gavai clarified that while deciding the Presidential reference, the court will not look into the April 8 verdict in the Tamil Nadu case. 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.

On withholding of assent, the bench told Salve that the court can ask the governor why he was withholding the bills.

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.'' The bench was informed by Salve that under the constitutional scheme power to accord assent to bills passed by state legislatures vests with only Governors or President and there was no concept of ''deemed assent''.

''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 submitted.

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.

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 the President and Governor to act on bills passed by state assemblies.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)