Constitution Can't Be Interpreted In A Manner Making Governors Unaccountable : Sibal To Supreme Court In Presidential Reference

On the seventh day of the Presidential reference hearing, Senior Advocate Kapil Sibal (for the State of West Bengal) urged that the Constitution must not be read in a way giving powers to the Governor which makes him unaccountable, as it is contrary to the constitutional scheme envisaged. He made this argument in the context of the submission of the Solicitor General on Article 361, that the Governor's actions are not justiciable and that he has discretion to withhold a Bill permanently under Article 200.Remarking that such exercise of powers will make Article 200 the only provision where the Governor's actions are not accountable, Sibal submitted: "If you allow the Governor the personal power to take a decision, neither the Government of India nor the State is involved. How will Article 361 apply when it is the decision of Governor that I will not give you the assent or I am keeping the bill pending. The Government of India can't defend him. State Government is at odds with him. How will a writ petition lie? You can't interpret Article 361 like this. If you like that power to Governor, my argument is you should not do so, then he is answerable and Article 361 will not stand in his way. You can't have it both ways. You take recourse to Article 361, that he is not answerable, and you give him power under Article 200 and you say, Governor will not file affidavit and court can't issue a process, then you are making the Constitution unworkable because that is the only act where he is not accountable. There is no act in the Constitution which makes the executive not accountable to the Court. This is the provision where you will give that. You can't have an absence of accountability as a constitutional provision," Sibal submitted. Sibal reiterated that the Governor has no power to not assent, and the only question before the Court is that, despite that, if the Governor withholds the Bill, what happens then. Can the Court accept the method followed by the two-judge in Tamil Nadu judgment granting "deemed assent", or is there any other architecture which can be put in place?"Despite that, if he does that, what is the relief? That's the only area where mylords have to lay the architecture deemed assent or some other."Sibal also submitted that the Court must avoid answering general questions in a reference. He urged that, other than the first three questions, the Court should not answer any of them as they are hypothetical in nature and do not arise in the context of any facts, but on the likelihood of it. He said that the questions are based on situations which haven't arisen since Independence. He also referred to the past references and submitted that in all these references, a specific issue has been referred unlike the present reference. "I have set out here all references made in past, and in no reference is similar to this one because in each, a specific question is asked. I am on maintainability. But I would request mylords to be careful in deciding a matter of this nature dealing with a hypothetical situation in the absence of facts. What is being directly argued is that the Governor has immunity that he can withhold, etc, that your lordships must answer. But there are several peripheral issues which are not before mylords. It's not on maintainability, it's on the discretion of the Court whether to answer all the questions or not to answer," Sibal submitted.Sibal referred to a paragraph from the In Re: The Special Courts Bill, 1978, in which Justice YV Chandrachud had observed that vague and general questions in reference must be avoided. In that paragraph, Justice Chandrachud said that the Court should not be driven to imagine a challenge and save it or slay it on hypothetical considerations. "Tell me in which reference has ever been asked like this? You are asked to answer on all kinds of assumptions. All kinds of scenarios are put before you. Is that the duty of the Court to conjure up scenarios and answer the questions? What will happen in Articles 131, and 32. When it happens, it happens and you will answer through a judicial process but we can't take examples like this and answer questions. Is the job of a Governor or President in a reference to tell you that this is what we are troubled by? Does arise or likely to arise. How is Article 131 issue likely to arise? How is it relevant?," Sibal averred.States of West Bengal, Karnataka and Himachal Pradesh have all reiterated that in our constitutional scheme, the sovereignty vests with the legislature and the Governor can't be allowed to thwart the will of the people represented by the elected State Government. While Sibal emphasised that the Constitution provides a route where a repugnant legislation, if passed, can be challenged and that the Governor has no role in the legislative competence, Senior Advocate Gopal Subramanium (for the State of Karnataka) and Advocate Anand Sharma (for State of Himachal Pradesh) maintained that the Constitution provides...

Constitution Can't Be Interpreted In A Manner Making Governors Unaccountable : Sibal To Supreme Court In Presidential Reference

Gursimran Kaur Bakshi

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