Today, On 19th August, Day 2 of the Presidential Reference hearing on assent to bills, Attorney General R. Venkataramani argued that the “power of Article 142 cannot violate the Basic Structure of the Constitution” and cannot allow deemed assent by the judiciary.
New Delhi: The Supreme Court heard the Presidential Reference concerning the power of Governors and the President to grant assent to bills and whether courts can step into this constitutional space.
Attorney General R. Venkataramani made detailed submissions while the Bench examined questions related to Article 142 of the Constitution.
The Attorney General drew attention to the questions framed in the reference and said, “Please see the questions 13 and 10.”
Question 10 asked,
“Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?”
Question 13 was about whether,
“Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?”
Attorney General R. Venkataramani raised concerns on Tuesday regarding the Supreme Court’s April decision that established deadlines for Governors and the President to approve bills passed by legislatures.
He questioned whether the Court has the authority to effectively “rewrite the Constitution.”
On this point, the Attorney General submitted,
“Article 142 cannot be used to create a new edifice ignoring Constitutional statutes.”
Chief Justice of India B.R. Gavai observed during the hearing,
“There are also observations where the court has noted that the governor has not shown deference..”
Justice P.S. Narasimha intervened and said,
“See the egregious situation where it had come to.. it was to remedy that situation that the court stepped in.. the bills were pending for so long.”
The Attorney General questioned the scope of the judiciary’s role in matters concerning assent to bills, expressing doubt about whether the court could legitimately intervene in such constitutional areas.
He stressed that he preferred not to delve into the factual circumstances of specific state cases, though he noted that if required, he could elaborate on the situation in Tamil Nadu.
However, the Bench firmly responded,
“Better not get into it.”
Solicitor General Tushar Mehta, while making his submissions, emphasised that certain constitutional problems cannot be resolved by judicial intervention alone. He explained that the Presidential Reference is essentially a request for advice sought by the President, which can only be effectively addressed if five key constitutional articles are examined together.
Referring to the history of constitutional drafting, he highlighted that although the initial draft had prescribed a specific timeline for the exercise of such authority, the Constituent Assembly deliberately removed it to ensure greater flexibility.
He also quoted the words of Dr. B.R. Ambedkar, saying,
“Dr Ambedkar said remove the timeline and make it as soon as possible.”
The Chief Justice pointed out,
“So, as per you, no timeline was provided.”
The Solicitor General clarified that the timeline was deliberately removed during the framing of the Constitution because the authority was entrusted to the highest constitutional functionary, ensuring that such powers would be exercised responsibly without rigid limitations.
Justice Surya Kant also made an important remark, saying,
“Another significant thing that comes is that there was nothing then that president could send a bill for reconsideration… Read begum rasool for that…“
After hearing these arguments, the Constitution Bench decided that the matter would continue further and the hearing will resume tomorrow.
During the hearing, Chief Justice B.R. Gavai clarified that the Supreme Court will only be expressing its view on the law and not delivering a judgment in the Tamil Nadu case while hearing objections from Tamil Nadu and Kerala.
The Supreme Court, clarified that a reference bench has the power to express its opinion on a judgment, but it does not have the authority to overrule an earlier judgment.
CJI Gavai raised a pointed question at the beginning,
“What’s wrong in President seeking a Presidential Reference?”
He asked why there should be objections at all to the President referring the issue to a five-judge Bench.
The CJI also wondered whether senior lawyer K.K. Venugopal was serious about his preliminary objections, describing them as “hyper-technical.”
Background
The Presidential Reference followed the April 8 Supreme Court ruling which held that Governors cannot indefinitely sit on Bills passed by State legislatures. Thou
gh Article 200 does not mention a deadline, the Court said Governors must act within a reasonable time and cannot stall the democratic process.
The Court also held that under Article 201, the President must decide on Bills within three months. If delayed, reasons must be recorded and conveyed to the concerned State.
The exact words of the April 8 judgment were:
“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.”
President Murmu later sent 14 questions to the Court, asking whether the judiciary could impose such deadlines and whether the concept of “deemed assent” was constitutionally valid.
While the Centre backs the Reference, arguing that Governors’ powers cannot be curtailed by judicial timelines, both Kerala and Tamil Nadu have asked the Court to dismiss it as not maintainable.
These are the 14 key questions raised by the President:
- “What are the constitutional options before a governor when a bill is presented to him under Article 200 of the Constitution of India?”
- “Is Governor bound by the aid and advice of the council of ministers while exercising all the options available with him when a bill is presented before him under Article 200 of the Constitution of India?”
- “Is the exercise of constitutional discretion by Governor under Article 200 of the Constitution of India justiciable?”
- “Is Article 361 of the Constitution of India an absolute bar to judicially review in relation to the actions of Governor under Article 200 of the Constitution of India?”
- “In the absence of a constitutionally prescribed time limit and the manner of exercise of powers by Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by Governor?”
- “Is the exercise of constitutional discretion by President under Article 201 of the Constitution of India justiciable?”
- “In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by President under Article 201 of the Constitution of India?”
- “In light of the constitutional scheme governing the powers of President, is President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when Governor reserves a bill for President’s assent or otherwise?”
- “Are decisions of Governor and President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law?”
- “Can the exercise of constitutional powers and the orders of/by President/Governor be substituted in any manner under Article 142 of the Constitution of India?”
- “Is a law made by the state legislature a law in force without the assent of Governor granted under Article 200 of the Constitution of India?”
- “In view of the proviso to Article 145 of the Constitution of India, is it not mandatory for any bench of this court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of Constitution and to refer it to a bench of minimum five judges?”
- “… the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?”
- “Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union government and the state governments except by way of a suit under Article 131 of the Constitution of India?”
Case Title: Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India | SPL. REF. No. 1/2025 XVII-A
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