Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-9 : Live Updates

Wilson: for people we get elected and we have to give good goverance and therefore, meaningful participation is required.

A judgment of this Court in Roger Mathew, whether court can go into legislative procedure. Kaiser-i-Hind also referred.

CJI: we will not consider if the two-judge bench was justified in not referring to a larger bench

Sr Adv P Wilson: We have been wandering in this court for longer period, we brought the reference and we know the pain in approaching the court and getting order in our favour.

CJI: don't bring your pain before this court

Wilson: Article 200 and Article 201 falls within legislative procedure. It should be understood in context of rule of law, constituent assembly debates and principles adopted by constitutional courts. It has to be taken into consideration people elect state with hope that good governance will be given in 5 years. If mylords see how Article 21, the word procedure is interpreted as due procedure in Menaka Gandhi.

Maneka Gandhi case clearly says that the procedure should be clear, transparent.

Sr Adv: Article 145(3)- when the issue relating to interpretation of constitution arises, it should be referred to larger bench

CJI: for that, you have to be on the otherside

Sr Adv: I will borrow the words of Solicitor that it is not adversarial

Sr Adv: Articles 31A, 31C, 254(2), 288(2)-certain exceptions carved out for reservation of bill to the president. Matters which fall exclusive within domain

CJI: According to you, for Governor timeline is there and for President, it is not there?

Sr Adv: there will be some decision, but it does not mean some inaction. I was going through Hindi version of the Constitution, the word used is 'forthwith'.

CJI: constituent assembly debate is in english, so we will go by that.

Sr Adv: on reference to president, the expression is as soon as possible but in Article 201, no such exigency is attached.

Reddy: they are seeking mylords opinion, it is fully just to give an opinion binding upon them.

Sr Adv for Meghalaya: there are certain unique features in sixth schedule and Article 244 conferring powers to Governor which will have bearing.

Article 244(2) leads to sixth schedule where certain powers have been given-para 6th-regional council and district council-so the laws made by district councils are required to be placed before Governor, and it is not similar to Article 200 where Governor has three options and where he acts on council of ministers.

Wherever the Constitution wanted to provide an option to grant or not, it was given.

CJI: this is not the provision before us, it will open pandora box

Sr Adv: there is marginal note to Article 200

CJI: when text is very clear, do we need to go into the marginal note?

Sr Adv: first principle of interpretation is when text is clear. my submission is, see the marginal note does not say reserve the bill. Article 200 provides for one option for assent to bill because assent or withholding-the second is for the purpose of sending the message to the assembly and once it has been done, the Governor can't withhold.

If Governor had three options..

CJI: according to you, withholding is for specific period

J Nath: according to you, its the part of the same process- the other options

Sr Adv: marginal note only says assent to bills

Reddy: for all three lists, it does not empower the Governor to withhold or reserve it for the President. Its not an extra-constitutional advisor to the state legislature.

On justiciability- when bill is sent to the President, if it feels that it is not desirable, judicial review is permissible- if President grants for similar provision in one state but does not do so for another. It depends on fact to fact case.

On timelines, in terms of advisory jurisdiction space, if mylords were to form a clear opinion on expediency, that would still be an advisory opinion binding on the president and would have to be sent to the Governor.

J Kant: you were not there, an argument was made that no formal declaration is required for withholding

Reddy: some States argued. Union List, Article 246(1) says State can't make a law- the Bill will be ipso facto invalid-President can't grant assent on bill entrenching powers of the centre. If its in State list, Union will usually have no power to legislate. The Constitution itself makes provision, there is series of articles where in List II the legislative field is made subject to the Union. Otherwise if such law is made, the Governor can't sit over it.

Constitution was mindful that Union would be given power to legislate on State subjects. For example, A. 253 etc. This enables parliament in legislative space to make law for state. In List II subjects, the Governor can't withhold. Only would be the concurrent list area on the request of the council of ministers.

Reddy: on reservation, on Article 201 it goes to the President- as a practice, the President enables the state to know whether the assent is either withheld or given...if the bill is kept pending, the bill will never become the law.

CJI: what do you propose?

Reddy: while it is within discretion of President, there has to be declaration if assent is granted or withheld. It can't be a constitutional blackhole that bill remains pending.

J Narasimha: there is still in realm of Articles 200 and 201. If the law is made, then Article 254 operative. At the time of making of law, the power of assent, withhold

Reddy: if council of ministers feel some parts may not operative and is referred under Article 201, and if it becomes a law, Article 254 will not make it repugnant. Another way, law is made, it might be difficult to send it to the President.

Reddy: at the time the Constitution was made, Union was not formed with that definiteness. There was tension of forces that may work with certain vissarious tendencies. They felt that there are certain areas that may be left exclusive to the states but then they did not want the Governor to have discretion. These tendencies are no longer that imminent.