Presidential reference: States can't file writ petitions in SC against actions of Prez, Guv in dealing with bills, Centre tells top court

State governments cannot invoke writ jurisdiction to move the Supreme Court against actions of the President and governors in dealing with bills passed by state assemblies claiming violation of fundamental rights, the Centre asserted before the Supreme Court on Thursday.

On the fifth day of the hearing on the Presidential Reference on timelines for assent to state bills, Solicitor General Tushar Mehta told a five-Judge Constitution Bench led by CJI BR Gavai that the President wanted to press the questions raised in the Presidential Reference relating to the maintainability of writ petitions filed by state government against the Union of India under Article 32 of the Constitution.

The Bench – which also included Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar – had earlier proposed to avoid answering this question and to keep it open for being decided in a future case, noting that substantive issues raised in the Presidential Reference related to the grant of assent to bills by governors and the President under Articles 200 and 201 of the Constitution.

However, at the very outset of the hearing on Thursday, Mehta said that he had taken instructions and the question regarding Article 32 as also the one on the ambit of Article 361 of the Constitution -- which grants immunity to the President and Governors from answerability to any court for the exercise and performance of their official duties, and from any criminal proceedings or arrest during their term of office – needed to be answered by the top court. He said it was an issue which has been arising in many instances.

"Article 32 lies when there is violation of fundamental rights and the state government in the constitutional scheme does not in itself have the fundamental right. It is a repository of functions which is to protect fundamental rights of its people," Mehta said.

On the other hand, on behalf of the Tamil Nadu government, senior advocate AM Singhvi contended that accepting that the Governors can withhold assent even to money bills passed by a state legislature would effectively make them a "super Chief Minister" of a state.

He said the Governor cannot act like a judge and review a Bill, and that it was for the courts to see if a Bill was violative of the Constitution or repugnant to any Central law. Arguments will resume on September 2.