NEW DELHI: The Centre on Thursday asserted that a governor's action on a bill passed by an assembly - withhold assent, return it to assembly or reserve it for President's consideration - is non-justiciable and the governor-state impasse over such issues must be resolved not in the Supreme Court but through the political mechanism , leading the apex court to ask should it remain passive if a governor fails to discharge his constitutional obligation.
On the third day of the hearing, solicitor general Tushar Mehta told a bench of Chief Justice B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar that there are hundreds of aspects that a governor examines while taking a decision on a bill and SC does not have the wherewithal to examine the validity of such considerations while arriving at a decision.
This led the CJI to ask, "If a governor does not do what the Constitution mandates him to do and sits over a bill without taking a decision for years, should courts be powerless to examine such inaction? What will happen to the federal democratic set-up? What happens to the will of the people? And, what does an elected govt in a state do?"
CJI calls for restraint, says judicial activism should not become judicial adventurism or judicial terrorism
Justices Kant and Narasimha, also part of the five-judge bench, said, “The court may not go into the aspect of why a governor takes a particular action on a bill. But if the governor does not take any action for a very long period, can the situation be remediless? If the aggrieved state moves SC, should it keep silent? There cannot be a vacuum in the Constitution.”
Mehta said mere justification (on the grounds of a governor’s inaction) does not give jurisdiction to the court to tinker with the Constitution and amend its provisions to provide a timeframe for a governor to mandatorily act.
“There had been such impasses between governors and states. They were resolved through political statesmanship of the CM concerned, the PM and the President. Solutions have been found in the political set-up. If a timeframe is required to be prescribed for a governor to act on a bill, Parliament will decide,” he said. “Every problem of the country need not have to be resolved by SC. The political set-up and heads of the other branches of governance are equally capable of resolving political issues through a collaborative exercise,” the SG said.
The CJI asked, “If SC, as custodian of the Constitution, finds a constitutional functionary refusing to discharge his/her functions without valid reasons, should it be powerless to act?” He, however, also emphasized the need for judicial restraint. “Judicial activism should not become judicial adventurism or judicial terrorism. I have always said separation of powers must be respected,” Gavai said.
Mehta said SC can interpret the Constitution and its provisions, but it cannot insert a timeline for governors to act on bills, which is impermissible given the rigid separation of powers between the legislature, executive and judiciary. He said the constitutional heads of each of the three organs must have deference to each other’s core constitutional functions. He asked, “If a trial in a criminal case is pending for decades and a person approaches the President saying justice has been denied to his son, should the President declare him innocent and end the trial? Can the legislature fix a timeline for the judiciary to complete a trial in a case?”
“Whether the governor should grant assent, withhold, return the bill to assembly or reserve it for President’s consideration are all actions which are non-justiciable. There are no judicial standards by which the SC can test the validity of governor’s action on Bills. SC does not have the wherewithal to decide the validity of political decisions,” the SG said.
Mehta said India follows the principle of constitutional supremacy and the supremacy is neither with the legislature, executive or judiciary, all three operating in distinct spheres governed by the principles of separation of power. “The National Judicial Appointments Commission was unanimously passed by Parliament and ratified by two-thirds of the state and yet it was struck down by SC terming the presence of a single member from the executive in the panel for selection of judges as an interference in judicial independence,” he said.
Every organ has the freedom to operate independently in their respective core constitutional functions, Mehta said, adding that if the presence of one executive member was interference in judiciary, could SC have fixed a timeframe for a governor to take a decision on a bill when the Constitution was silent on it, he further argued. Mehta cited several provisions of the Constitution where the text provided for a time frame for taking action by constitutional authorities and concluded his arguments saying the silence of the Constitution on the deadline for a governor to take a call on legislations was deliberate and cannot be tinkered with by SC.
On the third day of the hearing, solicitor general Tushar Mehta told a bench of Chief Justice B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar that there are hundreds of aspects that a governor examines while taking a decision on a bill and SC does not have the wherewithal to examine the validity of such considerations while arriving at a decision.
This led the CJI to ask, "If a governor does not do what the Constitution mandates him to do and sits over a bill without taking a decision for years, should courts be powerless to examine such inaction? What will happen to the federal democratic set-up? What happens to the will of the people? And, what does an elected govt in a state do?"
CJI calls for restraint, says judicial activism should not become judicial adventurism or judicial terrorism
Justices Kant and Narasimha, also part of the five-judge bench, said, “The court may not go into the aspect of why a governor takes a particular action on a bill. But if the governor does not take any action for a very long period, can the situation be remediless? If the aggrieved state moves SC, should it keep silent? There cannot be a vacuum in the Constitution.”
Mehta said mere justification (on the grounds of a governor’s inaction) does not give jurisdiction to the court to tinker with the Constitution and amend its provisions to provide a timeframe for a governor to mandatorily act.
“There had been such impasses between governors and states. They were resolved through political statesmanship of the CM concerned, the PM and the President. Solutions have been found in the political set-up. If a timeframe is required to be prescribed for a governor to act on a bill, Parliament will decide,” he said. “Every problem of the country need not have to be resolved by SC. The political set-up and heads of the other branches of governance are equally capable of resolving political issues through a collaborative exercise,” the SG said.
The CJI asked, “If SC, as custodian of the Constitution, finds a constitutional functionary refusing to discharge his/her functions without valid reasons, should it be powerless to act?” He, however, also emphasized the need for judicial restraint. “Judicial activism should not become judicial adventurism or judicial terrorism. I have always said separation of powers must be respected,” Gavai said.
Mehta said SC can interpret the Constitution and its provisions, but it cannot insert a timeline for governors to act on bills, which is impermissible given the rigid separation of powers between the legislature, executive and judiciary. He said the constitutional heads of each of the three organs must have deference to each other’s core constitutional functions. He asked, “If a trial in a criminal case is pending for decades and a person approaches the President saying justice has been denied to his son, should the President declare him innocent and end the trial? Can the legislature fix a timeline for the judiciary to complete a trial in a case?”
“Whether the governor should grant assent, withhold, return the bill to assembly or reserve it for President’s consideration are all actions which are non-justiciable. There are no judicial standards by which the SC can test the validity of governor’s action on Bills. SC does not have the wherewithal to decide the validity of political decisions,” the SG said.
Mehta said India follows the principle of constitutional supremacy and the supremacy is neither with the legislature, executive or judiciary, all three operating in distinct spheres governed by the principles of separation of power. “The National Judicial Appointments Commission was unanimously passed by Parliament and ratified by two-thirds of the state and yet it was struck down by SC terming the presence of a single member from the executive in the panel for selection of judges as an interference in judicial independence,” he said.
Every organ has the freedom to operate independently in their respective core constitutional functions, Mehta said, adding that if the presence of one executive member was interference in judiciary, could SC have fixed a timeframe for a governor to take a decision on a bill when the Constitution was silent on it, he further argued. Mehta cited several provisions of the Constitution where the text provided for a time frame for taking action by constitutional authorities and concluded his arguments saying the silence of the Constitution on the deadline for a governor to take a call on legislations was deliberate and cannot be tinkered with by SC.
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