Presidential reference: Opposition-ruled states accuse Centre of trying to ‘abrogate fulcrum of Constitution’

The governments of opposition-ruled states, including Karnataka, West Bengal, and Himachal Pradesh, accused the Centre on Wednesday of seeking to “abrogate the fulcrum of the Constitution” by questioning the top court’s recent ruling prescribing deadlines for the President and Governor to decide on Bills passed by state legislatures.

On the sixth day of the hearings on the Presidential Reference on timelines for assent to state Bills, senior advocates Gopal Subramanium, Kapil Sibal, and Anand Sharma, representing the governments of Karnataka, West Bengal, and Himachal Pradesh, respectively, emphasized before a five-judge Constitution Bench led by CJI BR Gavai that Governors cannot question the will of the sovereign and proceed to examine the legislative competence of a Bill passed by the Assembly, which falls under the judiciary’s domain.

Articles 200 and 201 should be interpreted in a manner that gives primacy to the will of the people, they told the bench, which also included Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice AS Chandurkar. Subramanium alleged that the Centre’s submissions indirectly sought to abrogate the fulcrum of the Constitution, i.e., the Cabinet system of government accountable to the Legislature, which has been held to be a part of the basic structure of the Constitution.

The theory of implied limitation on the powers of the President and Governors has been recognised in India, Subramanium argued. Sibal said, “The will of the people cannot be subject to the whims and fancies of the Executive (Governors and the President). The Executive is barred from interfering with the process of legislation. The will of the sovereign is supreme.”

The bench asked, “Is this your submission that Bills have to be assented to even if they are not in consonance with the legislative domain, and their validity can be tested in courts?” Noting that the Executive cannot be an impediment to the will of the sovereign, Sibal contended that the constitutionality of a law has to be tested by the courts and not by the Executives.

Governors have to take decisions on the bills forthwith and not in a three- or six-month period, Sibal added, noting that the Legislature was not concerned with the constitutionality issue, as it was the domain of constitutional courts.

Opposing the Presidential Reference, Sharma submitted on behalf of the Himachal Pradesh Government that the Constitution left no room for discretion to the Governor and that he must act on the aid and advice of the Council of Ministers in the state, as the President did on the aid and advice of the Union Cabinet under Article 74.

The bench had wondered on Tuesday if it could prescribe blanket timelines for Governors and the President to act on Bills passed by state legislatures. “Can we lay down a straightjacket formula under Article 142 (of the Constitution) for exercising the powers of the President and Governors?” it asked. The hearing would resume on September 9.