Timelines Can't Be Fixed For Governors/President For Bills' Assent; No Concept Of 'Deemed Assent' : Supreme Court In Presidential Reference

Answering the reference made by the President of India, Droupadi Murmu, under Article 143 of the Constitution, the Supreme Court on Thursday (November 20) held that the Court cannot impose any timelines for decisions of the President and the Governor on granting assent to Bills under Articles 200/201 of the Constitution.The Court further held that the concept of Courts declaring "deemed assent" to the Bills if the timelines are breached was antithetical to the spirit of the Constitution and against the doctrine of separation of powers. The concept of Courts declaring "deemed assent" is virtually a take over of the functions reserved for the Governor."We have no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution," the Court held.At the same time, the Court observed if there is a prolonged or unexplained delay by the Governor which frustrates the legislative process, then the Court can exercise a limited power of judicial review to direct the Governor to decide in a time-bound manner, without observing anything on the merits of the Bill.A bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar heard the matter for ten days and reserved its opinion on September 11.The Presidential reference was made in May, soon after the judgment delivered by a two-judge bench in the Tamil Nadu Governor case, which laid down timelines for the President and the Governor to act on Bills.The reference raised 14 queries. They were answered by the Court as follows :1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?Answer -Upon presentation of the bill, the Governor can assent to the bill, withhold assent or reserve for the President's assent. Withholding of the assent must be accompanied by the returning of the Bill to the Assembly as per the first proviso to Article 200. First proviso(which says Bill be returned to the Assembly) is not a fourth option, but qualifies the option of withholding assent. Thus, if assent to the Bill is withheld, then it must necessarily be returned to the Assembly. To permit the Governor to withhold the Bill without returning it to the house will derogate the principle of federalism. The Court rejected the Union's argument that the Governor can simply withhold the Bill without returning to the House.2. Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?Answer - Ordinarily, the Governor exercises functions under the aid and advice of the Council of Ministers. But in Article 200, the Governor exercises discretion. The Governor enjoys discretion under Article 200, as indicated by the use of the words "in his opinion" in the second proviso of Article 200. The Governor has discretion either to return the bill or to reserve the Bill for the President.3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?Answer - The discharge of Governor's functions under Article 200 is not justiciable. The Court cannot enter into a mert-review of the decision so taken. However, in a glaring circumstance of inaction, that is prolonged, unexplained and indefinite, the Court can issue a limited mandamus for the Governor to discharge his functions under Article 200 within a reasonable time period without making any observation on the merits of the excercise of the discretion.4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?Answer : Article 361 is an absolute bar on judicial review. However, it cannot be used to negate the limited scope of judicial review that this Court is empowered to exercise in cases of prolonged inaction by the Governor under Article 200. While the Governor enjoys personal immunity, the office of the Governor is subject to this Court's jurisdiction.5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the...

Timelines Can't Be Fixed For Governors/President For Bills' Assent; No Concept Of 'Deemed Assent' : Supreme Court In Presidential Reference

Gursimran Kaur Bakshi

The Court however held that in cases of prolonged delay, the Courts can issue a limited direction to the Governor to decide on the Bills.

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