E-Paper
How SC answered President’s questions
The Supreme Court on November 20 ruled that governors and the President cannot be bound by judicially imposed timelines in granting assent to state legislation.
Q: What are the constitutional options before a Governor when a Bill is presented under Article 200 of the Constitution of India?
Answer: The Governor, under Article 200, has three constitutional options: assent to the Bill, reserve it for the President, or withhold assent and return it to the Legislature with comments. The power to return a Bill with comments is not available for Money Bills.
Q: Is the Governor bound by the aid and advice tendered by the Council of Ministers (CoM) while exercising all options available with him when a Bill is presented before him under Article 200?
Answer: The Governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the CoM, while exercising his function under Article 200
Q: Is the exercise of constitutional discretion by the Governor under Article 200 justiciable?
Answer: The discharge of the Governor’s function under Article 200, is not justiciable. 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 the Governor to discharge his function under Article 200 within a reasonable time period, without making any observations on the merits of the exercise of his discretion.
Q: Is Article 361 of the Constitution an absolute bar to the judicial review in relation to the actions of a Governor under Article 200?
Answer: Article 361 is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings. However, it cannot be relied upon to negate the limited scope of judicial review that this Court is empowered to exercise in situations of prolonged inaction by the Governor under Article 200.
Q. 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 by the Governor?
Answer: In the absence of constitutionally prescribed time limits, and the manner of exercise of power by the Governor, it would not be appropriate for this Court to judicially prescribe timelines for the exercise of powers under Article 200.
Q. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution justiciable?
Answer: The President’s assent under Article 201 too, is not justiciable.
Q. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201?
Answer: The President, too, cannot be bound by judicially prescribed timelines in the discharge of functions under Article 201.
Q. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?
Answer: The President is not required to seek advice of the Court by way of reference under Article 143, every time a Governor reserves a Bill for the President’s assent.
Q. Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution, respectively, justiciable at a stage anterior to the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?
Answer: The decisions of the governor and President under Articles 200 and 201 respectively, are not justiciable at a stage anterior into the law coming into force.
Q. Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution?
Answer: The exercise of constitutional powers and the orders of the President/Governor cannot be substituted in any manner under Article 142; there is no concept of “deemed assent”.
Q. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200?
Answer: There is no question of a law made by the State Legislature coming into force without assent of the governor
Q. In view of the proviso to Article 145(3) of the Constitution, is it not mandatory for any bench of this Hon’ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of Constitution and to refer it to a bench of minimum five judges?
Answer: Question relating to the Article 145(3) and the composition of benches in this court that hear cases of constitutional importance is irrelevant to the functional nature of this reference, and is returned unanswered
Q. Do the powers of the Supreme Court under Article 142 limited to matters of procedural law or Article 142 extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?
Answer: Question concerning the power under Article 142 is overly broad, and it is not possible to answer in a definitive manner.
Q. Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?
Answer: Question pertaining to this court’s jurisdiction to resolve disputes between the Union and State Governments outside of Article 131 – is also found to be irrelevant to the functional nature of the reference and hence returned unanswered.
