Presidential reference: State legislature will become defunct if governor sits over bills

The Supreme Court on Friday said the state legislature would become defunct if the governor simply sat over bills passed by assemblies for years instead of acting on them “as soon as possible” as required under Article 200.

"If the governor can indefinitely withhold assent, governments formed by majority support would be at the mercy of an unelected appointee," a five-judge Constitution Bench led by CJI BR Gavai told Solicitor General Tushar Mehta.

"The assembly, elected by a majority, unanimously passes a Bill, and if the governor does not exercise the proviso under Article 200, it will be virtually making the legislature defunct. The persons who are elected… what is the safeguard for them?" the Bench asked.

On the third day of the hearing on the Presidential reference on timelines for assent to state bills, the Bench sought to know if courts were "powerless to intervene" if the governor sat over bills for years.

“Can we say that howsoever high the constitutional functionaries may be, if they do not act, the court is powerless to intervene in such a situation? Assent is given or rejected, the reasons we are not going into, why he has given or not given. Suppose an act is passed by the competent legislature, if the governor simply sits over it for an indefinite period, what will then (happen)?" it asked Mehta.

The top court’s comments came after Mehta argued that courts should refrain from interfering and passing binding directions in such a situation and a political solution can be found to deal with such an impasse.

Elected people having a lot of experience should never be undermined, the Solicitor General told the Bench -- which also included Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar.

“We have always said that judicial activism should never become judicial terrorism or judicial adventurism," the CJI said.

As the CJI asked if hands of constitutional courts could be tied if constitutional functionaries (governors) refused to discharge functions or there was inaction on the part of governor on bills passed by state assemblies, Mehta said in such a situation political solutions have to be explored by states, instead of judicial solutions.

The top court had on April 8 set aside Tamil Nadu Governor RN Ravi’s decision to withhold assent for 10 Bills and reserving them to the President even after they were re-enacted by the state assembly, terming it "illegal and erroneous".

Invoking Article 143 of the Constitution, President Murmu had in May sought the Supreme Court’s opinion on 14 questions arising out of the verdict fixing deadlines for governors and the President to take a call on Bills passed by state Assemblies.

The Supreme Court’s opinion on a Reference under Article 143 is not binding on the President and it’s not a binding law within the meaning of Article 141. It’s open to the top court to answer the reference or not. However, in case it does not want to answer the Reference, the court has to give reasons.

Contending that the top court’s direction for “deemed assent” to bills passed by Tamil Nadu assembly was violative of the Constitution, Mehta submitted that the top court assumed the role of another constitutional functionary (governor or President).

Mehta insisted that no timeline could be fixed for the President and governors to act on the bills passed by the state assemblies in view of the fact that the Constitution didn't prescribe any such timeline for them.