No timelines on President, governors to give assent to bills, rules SC

A five-member Constitution bench has ruled that imposition of timeline on the President and governors to grant assent to bills by a two-member Supreme Court bench in April was "erroneous".

The Constitution bench headed by Chief Justice of India BR Gavai ruled that the prescription of timelines imposed by the 2-judge bench "suffers from legal infirmities" and "were uncalled for as they were neither envisioned when we adopted the Constitution, nor they are borne out of our constitutional practice".

The Constitution bench headed by Chief Justice of India BR Gavai ruled that the prescription of timelines imposed by the 2-judge bench "suffers from legal infirmities" and "were uncalled for as they were neither envisioned when we adopted the Constitution, nor they are borne out of our constitutional practice".

In a unanimous verdict titled 'opinion of the court', the five-member bench ruled that the "text of Articles 200 and 201, has been framed in such a manner, so as to provide a sense of elasticity, for constitutional authorities to perform their functions, keeping in mind the diverse contexts and situations, and by consequence the need for balancing that might arise in the process of lawmaking in a federal, and democratic country like ours." The bench added the imposition of timelines would be "strictly contrary to this elasticity that the Constitution so carefully preserves".

With regard to "deemed assent", as interpreted by the division bench in its April ruling, the five-member bench held that it has no hesitation in concluding that the "deemed consent of the governor or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution."

SC clarified that the governor has "no option to withhold a bill simpliciter". In its "opinion", as sought by the President in her reference, the bench ruled that "the governor has three constitutional options before him, under Article 200: to assent, reserve the bill for the consideration of the President or withhold assent and return the bill to the legislature with comments".

The first proviso to Article 200 is bound to the substantive part of the provision and restricts the existing options, rather than offering a fourth option. Pertinently, the third option - to withhold assent and return with comments - is only available to the governor when it is not a money bill, the bench opined. "The governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the Council of Ministers, while exercising his function under Article 200," the judgment reads.

The bench also held that "the discharge of the governor's function under Article 200 and President's assent under Article 201 is not justiciable". SC said that it "cannot enter into a merit review of the decision so taken." However, it clarified, that "in glaring circumstances of inaction that is prolonged, unexplained, and indefinite - the court can issue a limited mandamus for the governor to discharge his function under Article 200 within a reasonable time period, without making any observations on the merits of the exercise of his discretion". The bench clarified that while the governor continues to enjoy personal immunity, the constitutional office of the governor is subject to the jurisdiction of the top court. On the issue of laying down timelines, the bench opined that "in the absence of constitutionally prescribed time limits, and the manner of exercise of power by the governor, it would not be appropriate for this court to judicially prescribe timelines (for governors and President)."

SC said the President "is not required to seek advice" of the top court by way of reference "every time a governor reserves a bill for the President's assent. The subjective satisfaction of the President is sufficient. If there is a lack of clarity, or the President so requires advice of this court on a bill, it may be referred" to SC, it held.

The bench said the "decision of the governor and President (under Articles 200 and 201, respectively) are not justiciable at a stage anterior into the law coming into force. It is impermissible for courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law". It ruled "the exercise of constitutional powers and the orders of the President/governor cannot be substituted in any manner under Article 142". The ruling adds, the Constitution does "not allow for the concept of 'deemed assent' of bills."