Supreme Court Hearing-Presidential Reference On Timelines For Bills' Assent-DAY-4 : Live Updates

Sr Adv Harish Salve (for Maharashtra): What is the nuanced which I process? in my submission, we have to be careful to not put the cart before the horse- we are a constitutional construct resembling federalism. Do we look at our constitution to see who it is created or intepret provisions linked to union and states with prior notion that it is understood to make some notion on federalism. Framers have created have a system where Union can refuse a Bill passed by assembly what is uncharitably characterised as veto. It exists, unless we rewrite Article 201

CJI: Union can reject bill passed by State legislature?

Salve: yes, plain from language of proviso to Article 201. Entire exercise of trying to avoid a veto like power overlooks that the language of Article 201 does not admit of any such limitation. If that is the starting point of debate and we give up notion that finding veto is antithetical or erodes the constitution, we come to different conclusions.

Kaul: on deemed assent- this is completely impermissible-judicial relocation of constitutional functions.

seeking opinion of SC- judgment/opinion of the President not justiciable- not an ideal formality.

Kaul: interpretation which completely rewrites the Constitution- the starting point of the debate can't be there is a vacuum and someone will misuse and therefore, as a constitutional court will be set it right.

CJI: Both houses of legislature have given approval on two occasions, why President/Governor sit on it for an indefinite period of time? We appreciate that we can't fix timetable, but if someone sits will the court be powerless? we understand that abuse of powers, when constitutional functionaries are involved, should not be assumed by the court, we appreciate the submission.

Kaul: this is an area best left to the Parliament to decide. Mylords have said it is for the Parliament to take a call.

Kaul: the constitution has trusted their judgment in the matter- the starting point can't be there is a misuse. Mylords have said on many issue that it is for the Parliament to take a call. If situation arises of egregious conduct, the Parliament has to take care- the answer can't be to lay down timeline and say it is judicially reviewable.

Kaul: they are incapable of being adjudicated. It requires objective criteria- there is operative complexity- consultation with ministers, etc- this can't be compared to exercise of powers under Article 356. It is sui generis. Under Article 356, there is failure of constitutional machinery and there is a report of the Governor- the court felt this is subjected to judicial review.

CJI: If discretion under Article 356 is justiciable, why not under Article 200?

Kaul: there are a lot of complexity involving constitutional concern, inter-se relationships etc- mylords have categorically held that assent by President is not justiciable because there is no legally manageable standards. Argument can't be what happens when Governor sits on bill indefinitely?

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

Kaul: on timelines- Purushothaman Nambudiri, the issue was does Bill lapse with assembly with life of assembly ends? it was said, no because there is no timeline. Where timeline is required to be provided, it is categorically provided.

CJI: Attorney has argued this

Kaul: Memorandum of information is concerned, it is impossible to say the Governor or President will decide in some specific time, given the complexity.

On judicial review-your lordship have held judicial review power is implicit in written Constitution- but mylords have from AK Kaul downwards have held, as a facet of judicial review is justiciability. Both are different.

Kaul: mylords pointed out Article 163, the discretion could be implicit or explicit. In Shivraj Chauhan, mylords said the House is summoned on aid and advise but when confidence of house is lost, then that's an independent view in regards to Article 74.

Kaul: his right to withhold in main part is indepedent discretion. Second argument is, independent exercise of judgment and discretion. BK Pavitra, issue arose when Governor refers to President, should there be grounds in which he refers it? It was answered that framers assuaged defining circumstances, you can't put it in straightjacket formula, it has to be left to his discretion.