The Centre told the Supreme Court that fixing timelines for President and Governors to act on Bills would upset the constitutional balance, stressing such powers are “non-justiciable.” SG Tushar Mehta warned that judicial overreach could trigger “constitutional disorder.”
New Delhi: Opposing the Supreme Court’s recent decision to fix a timeline for the President and Governors to act on Bills sent by State Legislatures, the Central Government has strongly argued that such an order interferes with the separation of powers between the executive, legislature, and judiciary.
The Centre said that this judicial move could
“destabilise the constitutional balance between (the) organs of State”
and further stressed that
“gubernatorial assent is a high prerogative, plenary, non-justiciable power.”
In its written submission on August 12 before the Constitution Bench of five judges, which is hearing a Presidential reference on whether such timelines can be fixed, Solicitor General Tushar Mehta said that the judiciary cannot provide answers to every issue in a democracy.
He stated that
“if any organ is permitted to arrogate to itself the functions of another, the consequence would be a constitutional disorder not envisaged by (Constitution) framers.”
Earlier in April, a two-judge bench of the Supreme Court had directed that Governors must act within a fixed time on pending Bills and, for the first time, also prescribed that the President should take a decision on Bills reserved for consideration by the Governor within three months from the date of such reference.
Later, in May, President Droupadi Murmu referred the matter to the top court and raised 14 important questions about this ruling.
Mehta, while highlighting the importance of separation of powers, admitted that
“over the years, a certain degree of overlap and checks and balances or fusion of powers have come to form…in practical application.”
But he underlined that
“there are certain zones which remain exclusive to either of the three organs…and cannot be trenched upon by the others. The high plenary positions of Governors and President fall within that zone. While they are political positions, they are also representations of democratic will. While the President is elected and Governors are appointed by Council of Ministers (acting through President), direct elections are not the only form of democratic processes in a republican democracy. The positions of power, where appointments are made by elected representatives, are also legitimate centres of democratic faith.”
He also explained the role of Governors in India, saying that they
“are thus not to be treated as alien/ foreigner in the federating units of the Union. Governors are not just emissaries of the Centre, (but) rather representatives of the entire nation in each and every federating unit. They represent national interest and national democratic will in the States as part of the larger Indian constitutional brotherhood.”
On the question of assent to State Bills, Mehta clarified that
“the gubernatorial assent is a high prerogative, plenary, non-justiciable power which is sui generis in nature. Although the power of assent is exercised by the person at the apex of the Executive, however, the assent itself is legislative in nature.”
He further explained why this power is beyond judicial interference, saying that
“this blended and unique nature of assent clothes it with a constitutional character whereby no judicially manageable standards exist. Thus, despite the expanding contours of judicial review, there are some zones like assent that remain non-justiciable. The classical notion of judicial review cannot be lifted and applied to assent as the factors at play during the grant or withholding of an assent have no legal or constitutional parallel.”
Warning of larger consequences if courts intervene, Mehta said,
“A wide-ranging judicial review of assent procedures, either post-assent or at a stage anterior to the grant of assent, would potentially destabilise the constitutional balance between organs of State. It would create an institutional hierarchy and upset the constitutional balance of powers between the three organs… (and) has the potential to convert the Indian Constitution into one which postulates supremacy of judiciary as a doctrinal principle. This is against the basic structure of the Constitution and against any justifiable reading of the Constitution as a whole.”
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He reminded the court that
“judicial deference and restraint have come to define the high ideals of Indian judiciary, and the judicial branch does not hold keys or solutions for every conundrum that may arise in a democratic polity. The framers of the Constitution thus, advisedly left some questions outside the judicial realm. This has been recognised as an inherent limitation of judicial procedures and judicial forums across the world… The power of mandamus thus, cannot be exercised over such functionaries owing to their constitutional status and inter-organ comity.”
He stressed that
“each organ of the State in the Constitution has certain core functions, one organ interfering with the core functions of another would breach the separation of powers which is a fundamental feature of Indian Constitution… Certain political questions may have only democratic remedies under the Constitution. In the zest of finding a solution to the problem presented before one organ, such organ must follow the essential feature of separation of powers in such core functions.”
On the constitutional design itself, Mehta pointed out that
“when the Constitution seeks to impose time limits for taking certain decisions, it specifically mentions such time limits. On the other hand, when it designedly sought to keep the exercise of powers flexible, it does not impose any fixed time limit. Since the text of Article 200 or 201 does not provide a specific time limit, no form of judicial review or judicial interpretation can impose the same.”
He clarified that
“exercise of Article 142 is not a supervening judicial power which can override the constitutional provisions or run contrary to them. The apex court, even under Article 142, is bound by constitutional provisions and principles.”
Adding a strong warning, he said,
“the alleged failure, inaction or error of one organ does not and cannot authorise another organ to assume powers that the Constitution has not vested in it. If any organ is permitted to arrogate to itself the functions of another on a plea of public interest or institutional dissatisfaction or even on the justification derived from the Constitution ideals, the consequence would be a constitutional disorder not envisaged by its framers.”
The Solicitor General also concluded that such a move
“would dissolve the delicate equilibrium that the Constitution establishes and would negate the rule of law. The perceived lapses, if any, are to be addressed through constitutionally sanctioned mechanisms such as electoral accountability, legislative oversight, executive responsibility, reference procedures or consultative process amongst democratic organs etc. Thus, Article 142 does not empower the Court to create a concept of ‘deemed assent’, turning the constitutional and legislative process on its head.”
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