Governor can't have dominating position over State executive, TN govt tells Supreme Court

A five-judge bench heard submissions on the Presidential reference, concerning whether the court can impose timelines for Governors.

New Delhi: The Tamil Nadu government on Thursday told the Supreme Court that the Governor cannot have a dominating position over the state executive and the state legislature, as it would be akin to having "two swords in the same scabbard" and making the holder of the constitutional office as super Chief Minister.

A five-judge bench led by Chief Justice of India B R Gavai and comprising Justices Surya Kant, Vikram Nath, PS Narasimha, and AS Chandurkar, heard submissions on the Presidential reference, concerning whether the court can impose timelines for Governors and the President to deal with Bills passed by state assemblies.

"Two swords in one scabbard. That is the antithesis of democratic functioning by an elected chief minister," Senior advocate A M Singhvi, representing Tamil Nadu, submitted before the court.

At this juncture, CJI Gavai said, “That's what I was asking the Solicitor General from the beginning."

In response to argument by senior advocate Harish Salve, appearing for the Maharashtra government, that the Governor can even refuse assent to money Bills, Singhvi said that would make him the super Chief Minister, possibly trenching beyond super Chief Minister also.

The bench asked whether members of the Constituent Assembly had in mind that the Governor is expected to decide at the earliest, and if that was the intention of the Constitution makers, "can we ignore that?"

Solicitor General Tushar Mehta, representing the Centre, said the example the bench is giving is that the Governor is expected to react immediately. 

“Not immediately, but within reasonable time," the bench said.

Mehta said that the time limit depends on the facts of the case.

The bench said it would not say any words about the two-judge verdict of April 8, but the Governor would not be justified in sitting over the bill for six months.

“Whether the circumstances were correct or not…I would not use the words used by the division bench….but was not justifiably or was not justified in sitting over the Bills for over six months or one year," the CJI said.

A bench of Justices J B Pardiwala and R Mahadevan, in a judgment on April 8, declared that the Tamil Nadu Governor’s decision to withhold assent to 10 bills was "illegal" and "arbitrary" and fixed a three-month timeline for the President to clear the bills.

The court used power under Article 142 of the Constitution to declared those as passed and assented.

Mehta submitted that one constitutional co-organ not discharging its duties or not discharging in time will not confer jurisdiction on another constitutional organ.

“Yes, we recollect your argument. If this court does not decide the matter for 10 years, would the President be justified in issuing an order," the CJI told Mehta.

The Solicitor General said it was an example, not an argument, that justification cannot confer jurisdiction.

“If that happens, the solution lies outside the court rather than advising the state to file petitions,” the bench said.

Mehta said this court has said time and again and judgment after judgment, "the court will not issue a mandamus to implement a particular law or make a particular law".

The Centre emphasised that state governments cannot invoke writ jurisdiction against the actions of the President and the Governor in dealing with the bills passed by assemblies for violation of fundamental rights.

Mehta contended that the President would like to have the apex court’s opinion on whether states can file writ petitions under Article 32 of the Constitution for violation of fundamental rights.

He said the President would also like to have an opinion on the scope of Article 361 of the Constitution, which says the President, or the Governor, will not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done.

Mehta contended that they have debated over these questions in the reference, but the President is of the opinion that she would like to have the view of the court to know the exact legal position, as the issue may arise in the future.

“Article 32 lies when there is a 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 the fundamental rights of its people,” Mehta said.

Mehta referred to the April 8 Tamil Nadu verdict which gave liberty to the states to approach it directly in case the timeline is not adhered to by the Governor in clearing the bills passed by the assembly. 

In his arguments, Singhvi, representing Tamil Nadu, submitted that Governors cannot have a dominating position over the state executive and the state legislature. 

He said there was a submission that a referral or a refusal can include a Money Bill. 

Singhvi said the Governor does not have any independent discretion in the discharge of his constitutional function; this is in consonance with both democracy and federalism, and indeed Basic Structure.

He said the Governor may have a role in the legislative process, but that too on the aid and advice of the Council of Ministers. Singhvi said the governor is bound by the advice of ministers in returning the Bill and also referring the Bill to the President. He said the Governor is only a facilitator and he should not cause either confusion or chaos.