Presidential reference hearing | Governor can't examine legislative competence of bills: West Bengal to Supreme Court

New Delhi: The West Bengal government on Wednesday told the Supreme Court that the governor cannot examine the legislative competence of a bill passed by the assembly.

A five-judge Constitution bench headed by Chief Justice BR Gavai was told by senior advocate Kapil Sibal, appearing for West Bengal, that since Independence there is hardly any example where the President has withheld a bill passed by Parliament because it is the will of the people.

Advancing his argument before a bench also comprising Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar, on the seventh day of hearing on the Presidential reference on whether the court could impose timelines for governors and President to deal with bills passed by state assemblies, Sibal submitted that legislative competence of a bill has to be tested in courts.

"A legislation can be challenged in a court of law by citizens or by somebody else. It's in the rarest and rare case that a Governor says I cannot give assent to the bills and withhold it," he submitted.

He added that Parliament is sovereign and there is an element of urgency that the will of the people has to be implemented urgently.

CJI Gavai questioned Sibal whether the governor, on finding that the bills suffers from repugnancy in view of central legislation, not reserve the bill for consideration of the President.

Sibal submitted that it is a rare case but when a bill is passed by the legislature, there is a presumption of constitutionality, which has to be tested in the court.

Justice Kant told Sibal that then governor will have to apply his mind to see whether the bill is repugnant or not, although one can advance arguments on the contours but he can’t simply be a postman or a super legislative body.

Sibal submitted, "Sovereignty of the state legislature is as important as sovereignty of Parliament. Should the governor be allowed to delay this. This is an important question…You cannot create a discord…otherwise it will a break down. The Constitution has to be interpreted in such a way that it is workable. This court has to ensure that there is no area of discord. So the key word here was as soon as possible. There is an element of immediacy… it is the will of the people".

On Tuesday, the top court said the power of judicial review forms part of the basic structure and courts cannot decline an answer to constitutional questions even if the controversy was political in nature.

The court, however, said it would only interpret the Constitution while dealing with the Presidential reference on whether the court could impose timelines for governors and the President to deal with bills passed by state assemblies.

On August 26, the top court wondered whether the court should sit powerless if a governor delays assent to bills indefinitely and if the constitutional functionary's independent power to withhold a bill would mean that even money bills could be blocked.

The court raised the questions after some BJP-ruled states defended the autonomy of governors and President in assenting to bills passed by a legislature, submitting that "assent to a law cannot be given by court." The state governments also contended that judiciary could not be a pill for every disease.

In May, President Droupadi Murmu exercised powers under Article 143(1) to know from the top court whether judicial orders could impose timelines for the exercise of discretion by the President while dealing with bills passed by state assemblies.