Presidential Reference: Courts can’t give ‘deemed assent’ to bills, BJP-ruled states tell SC

The BJP-ruled states on Tuesday defended the autonomy of Governors and the President in granting assent to state bills. They asserted that assent to a law cannot be given by courts in the name of “deemed assent”, as was done in the case of 10 bills passed by the Tamil Nadu Assembly.

On the fourth day of the hearings on Presidential Reference on timelines for assent to state bills, a five-judge Constitution Bench led by CJI BR Gavai termed as “problematic” the interpretation of Article 200 of the Constitution. This interpretation suggests that Governors have an independent power to withhold a Bill without returning it to State Legislative Assembly.

“Suppose a Bill is passed in 2020... Will the court be powerless if there is no assent even in 2025?” asked the bench, which also included Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice AS Chandurkar.

“When you independently exercise the power of withholding, it is a little problematic. Because, at the threshold, the Governor withholds the Bill. There is a problem because with this power, even a money bill can be withheld. The proviso will not apply there. There is a big problem with that interpretation. Assuming for a minute that it is permissible, even at the threshold, a bill can be withheld...,” Justice Narasimha asked.

“If such an interpretation is accepted, it would mean that Governors can even withhold money bills, which they are otherwise bound to approve, and such a situation is ‘problematic’,” the bench said.

Solicitor General Tushar Mehta clarified that such a question did not arise because money bills were introduced with the recommendation of the Governor under Article 207.

On behalf of the Maharashtra Government, senior counsel Harish Salve submitted that under the constitutional scheme, the power to accord assent to Bills passed by state legislatures vested only with governors or the President. There was no concept of “deemed assent”.

“The court cannot issue a writ of mandamus asking the governors to grant assent to bills... Assent to a law cannot be given by the court. Assent to a law has to be given either by governors or by the President,” Salve contended.

Referring to Article 361 of the Constitution, Salve said the President or Governor “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.

“The court can only ask what your decision is. But the court cannot ask why you have taken a decision,” Salve added.

“As far as timelines are concerned, it is impossible to say within this time the Governor or President must decide,” said senior counsel Neeraj Kishan Kaul, who represented the Madhya Pradesh government.

“Where there are no justiciable standards for a certain action, it will not be susceptible to judicial process,” Kaul said. The CJI wondered why the Governor should be permitted to sit on a bill for an indefinite period when it has been passed by State Legislature.

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. 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, if it does not want to answer the reference, the court has to give reasons.