Governors are not aliens, but checks on States' ‘hasty legislation': Centre to Supreme Court
The submission by the Centre, made in a note authored by Solicitor General Tushar Mehta, is part of the record in a Presidential Reference hearing scheduled before a Constitution Bench headed by Chief Justice of India B.R. Gavai from August 19.
The Presidential Reference stems from an April 8 judgment pronounced by a Supreme Court Bench of Justices J.B. Pardiwala and R. Mahadevan in a petition filed by the Tamil Nadu government, which had challenged Governor R.N. Ravi's delay in clearing 10 re-passed Bills and his subsequent action to reserve them for consideration by the President.
The two-judge Bench had thrust a three-month deadline on State Governors and the President to deal with State Bills sent to them for approval or consideration, respectively. It had concluded that Governors enjoyed no discretion while dealing with these Bills, and were totally bound by the 'aid and advice' of the State Legislature concerned. The Division Bench had even invoked Article 142 of the Constitution to grant 'deemed assent' to 'delayed' State Bills. The April 8 judgment had further directed that the President must seek advice from the Supreme Court under Article 143 (advisory jurisdiction) in case of any vexing State Bills.
The written submissions of Tamil Nadu, represented by senior advocate P. Wilson, countered that the Presidential Reference mechanism cannot be used to reopen or nullify binding judgments of the apex court itself. Questions on the powers of the President and the Governors as regards State Bills have already been settled by the April 8 judgment. Entertaining the Reference now would erode the finality attached to Supreme Court judgments under Article 141 of the Constitution. Tamil Nadu submitted the court was not bound to answer every Presidential Reference made to it
But Mr. Mehta maintained the April judgment of the court had clearly trenched upon a zone exclusive to the President and the Governors.
'Governors are not to be treated as alien/foreigner in the federating units of the Union. Governors are not just emissaries of the Centre. The Governors possess democratic legitimacy through indirect democratic representation. Governors are appointed by the President on the aid and advice of the Council of Ministers… Governors are constitutional actors,' Mr. Mehta submitted.
The law officer argued the nature of gubernatorial assent has a unique duality of character. Though the assent is given by an apex Executive authority, the act itself is legislative in nature. The Supreme Court's approach ought to have been more calibrated.
The Centre's law officer submitted that neither Article 200 (Governor's power to assent to State Bills) nor Article 201 (President's power to consider State Bills referred to her by the Governor for consideration) provided any specific time limit.
'The absence of any express time limit in Articles 200 and 201 is a deliberate and conscious constitutional choice. The judicial direction of imposition of any timeline would amount to an amendment to the Constitution,' Mr. Mehta emphasised.
The note asked if the court could invoke Article 142 and assume powers under Article 200 and 201 to grant deemed assent to 'delayed' State Bills.
'The alleged failure, inaction, or error of one organ does not and cannot authorise another organ to assume powers that the Constitution has not vested in it. Article 142 does not empower the court to create a concept of 'deemed assent', turning the constitutional and legislative process on its head,' Mr. Mehta put forth.
The Centre said a Governor was not a mere post office, but a check on 'hasty legislation' by the States.
A Governor was not precluded from exercising discretion under Article 200 to grant assent, withhold assent, reserve a Bill for the President's consideration or return the same to the Legislative Assembly, even in the absence of aid and advice to that effect.
'The Governor's assent cannot be a mechanical process… Situations may arise where the Governor may need to take a view independently of the Council of Ministers,' Mr. Mehta argued.
Moreover, the Union government said directing the President to consult the Supreme Court under Article 143 in case of any doubts about State Bills would effectively turn a constitutional prerogative into a judicial mandate.
'An absolute discretion lies with the President to seek advice. The term 'consult' means the President is not bound to do so,' Mr. Mehta submitted.
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