Presidential Reference | Supreme Court cannot sit idle if an organ does not discharge its function, asserts CJI Gavai

CONCLUDING THE HEARINGS on the Presidential Reference seeking clarification on whether times lines could be read into Article 200 of the Constitution providing for the exercise of powers by the Governor on deciding on the Bill presented to him after being passed by the state legislature, the Supreme Court today noted that though it strongly  stood by the separation of powers between three-organs of State, it could not sit idle when one wing does not discharge its constitutional role.

On the conclusion of the hearing on the Presidential Reference spread over ten days, the Chief Justice B.R. Gavai heading a five-judge Constitution Bench also comprising Justices Surya Kant, Vikram Nath, Pamidighantam Sri Narasimha and Atul S. Chandurkar, said that being a custodian of the constitution, if one organ of the state does not discharge its duties, then it cannot be “powerless and sit idle”.

“I am a strong believer in the doctrine of separation of powers. Judicial activism has to be there. If one wing of the state fails in discharging its duties, would the Court - which is the custodian of Constitution - be powerless and sit idle?”, CJI Gavai asked in the course of the hearing. It came in response to the Solicitor General Tushar Mehta insisting that in exercise of four options under Article 200, the Governor can withhold assent to a Bill and the judiciary cannot issue a mandamus in such a situation. 

To the observations from the bench, Mehta responded that both the executive and the legislature were equally the custodians of the Constitution and the Court could not issue a mandamus to a “co-ordinate constitutional functionary” which is the Governor in the instant case, in exercise of his constitutionally recognised discretionary powers.  To buttress his point, he cited a hypothetical situation where the court is faced with four petitions seeking divergent and conflicting mandamus on a Bill before a Governor.

Mehta reiterated that an assent to a Bill by the Governor is an integral part of the legislative process that commences with the introduction, consideration and passage of Bill by the State assembly. He said that even if there was a justification, the court does not have jurisdiction to interfere in the exercise of p[owners by the Governor under Article 200. This position was articulated by the Solicitor General in his earlier submissions in the beginning of the hearing but the Court appeared unpersuaded by it.

During the August 21 hearing, when Mehta had submitted that the courts cannot step in as actions of the Governor in exercise of powers under Article 200 are not justiciable, the CJI had asked, “According to you, it is totally out of judicial view?”. He had also asked, “What is the safeguard for a duly elected government. Suppose a bill is passed with two-third majority and the Government just sits over it. This will make the legislature and the government defunct.”

Arguing against the fixing of the timelines, and cautioning that this would lead to an “assent jurisprudence” in the country, the Attorney General for India, R. Venkataramani argued, “This would mean doing violence with Article 200 and the best course would be to leave to the wisdom of the Governor in exercise of his powers under Article 200 of the Constitution.”