State legislature to become defunct, if Governor sits over Bills: Supreme Court during Presidential reference hearing

The Supreme Court on Thursday 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 the proviso of Article 200.

"If the Governor can indefinitely withhold assent, governments formed by a 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 said.

On the third day of the hearing on the Presidential reference on timelines for assent to state legislations, the Bench sought to know if the 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. 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 the courts should refrain from interfering and passing binding directions in such a situation and a political solution could 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 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 the Governor on the Bills passed by state assemblies, Mehta said, "In such a situation, political solutions have to be explored by states, instead of judicial solutions."

"If someone approaches the President saying that his case is pending for seven years in a trial court and the maximum punishment (in the case) is seven years, can the President acquit him? For every problem, the solution is not adjudication by this court," Mehta said.

The top court had on April 8 set aside Tamil Nadu Governor RN Ravi’s decision to withhold assent for 10 Bills and reserve them for 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 the Bills passed by state assemblies.

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 could not assume the role of another constitutional functionary.

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.