SC: Can't impose timelines on governors to clear bills

NEW DELHI: Supreme Court unanimously ruled Thursday that it has no jurisdiction or power to set a timeline for a governor or the President to take a decision on bills passed by state assemblies, ask the President to seek SC's opinion on bills reserved for her and involving constitutional questions, and grant 'deemed assent' to bills pending with a governor.

This ruling by a bench of CJI B R Gavai, CJI-designate Surya Kant, and Justices Vikram Nath, P S Narasimha and A S Chandurkar dismantled the April 8 judgment by Justices J B Pardiwala and R Mahadevan, which had led the President to seek SC's opinion on questions regarding the apex court's intrusion onto the turf of constitutional heads, and virtually challenged the constitutionality of the two-judge bench verdict.

The two-judge bench had fixed timelines for governors and the President for taking a decision on bills passed by state assemblies, suggested to the President to seek SC's opinion on bills reserved for her and involving complex constitutional questions, and, using SC's exclusive powers under Article 142 of the Constitution, granted deemed assent to 10 bills pending with the Tamil Nadu governor.


SC termed the rulings by the two-judge bench as constitutionally impermissible.

‘Court can only issue limited mandamus under Art 200’
It said the Constitution confers wide discretion on a governor in deciding whether to grant assent, withhold and return a bill with comments to the House for reconsideration, or reserve it for the President’s consideration. In exercise of this power under Article 200, a governor is not bound by the aid and advice of the council of ministers led by the CM, SC said.

It said SC is constitutionally barred from scrutinising a governor’s decision to grant or withhold assent to a bill or reserve it for President’s consideration. “The discharge of a governor’s function under Article 200 (and by the President under Article 201), is not justiciable,” it said, accepting the entire range of arguments advanced by solicitor general Tushar Mehta on behalf of the govt.

“The court cannot enter into a merits review of the decision so taken. However, in glaring circumstances of inaction that is prolonged, unexplained, and indefinite — the court can issue a limited mandamus for a governor to discharge his function under Article 200 within a reasonable time, without making any observations on the merits of the exercise of his discretion,” it said.

The bench said the Constitution does not prescribe a time limit for the President or governors within which they must take a decision on a bill. “It would not be appropriate for this court to judicially prescribe timelines for the exercise of powers under Article 200,” it said.

It bench said, “The President is not required to seek advice of this court by way of reference under Article 143, every time a governor reserves a bill for the President’s assent.” It said the President has absolute discretion when to seek SC’s opinion and on what issue.

It said SC can adjudicate validity of a bill only after it becomes law on receiving governor’s or President’s assent and notified by the govt concerned. “It is impermissible for 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’,” the bench said.

Frowning upon the grant of ‘deemed assent’ to 10 TN bills, the five-judge bench said it is the exclusive constitutional power of governors and the President to grant or refuse assent to a bill and SC cannot usurp the powers conferred on constitutional heads of the country and states. “The governor’s legislative role under Article 200 cannot be supplanted by another constitutional authority,” it said. Terming the concept of ‘deemed assent’ alien to the Constitution, the bench said, “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.”

Rejecting the parallels that counsels for opposition govts drew with constitutional heads like the British crown, who is only a figurehead, SC said it will give a ‘swadeshi’ interpretation to the constitutional provisions regarding powers of the President and governors on bills.

Mehta conveyed to the bench the gratitude of the President and the Union govt for “an illuminating judgment” throwing light on several constitutional fields related to the powers of the President and governors.

Senior advocate Kapil Sibal, who had supported the two-judge bench decision fixing timelines but did not agree with its decision on deemed assent, thanked the bench for a “very circumspect and thoughtful” decision.


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