NEW DELHI: Observing that Bills if kept pending after their passage by the State legislature militate against the very sustenance of a representative democracy based on direct elections, Supreme Court has ruled that neither the President nor the governor has "unbridled powers" and neither of them has power to exercise ‘absolute veto’ on any bill passed by the assembly. It said constitutional functionaries have to take decisions in a time-bound manner and whose validity can also be challenged in court.
Clearing the constitutional ambiguity over the role of constitutional head of the country and of the state regarding bills sent to them for assent, a bench of Justices J B Pardiwala and R Mahadevan said that both the authorities have to pass a reasoned order and cannot sit indefinitely on the Bills. Settling a timeline for governor to take a decision within a month if assent is granted or within three month if Bill is referred to the President or to assembly for reconsideration, the court also accepted Centre's 2016 office memorandum fixing a timeline of three months for the President to take a decision and made it a part of its order.
"The scheme under which the constitutional heads of both the country and the State respectively are required to operate, does not contemplate the idea of an ‘absolute veto’, thereby meaning that there can be no withholding of assent without furnishing reasons. This is owing to the fact that the simpliciter withholding of assent both by the President and the governor would be impermissible within the fundamental principles of a constitutional democracy ," the bench said.
Elaborating Article 200 (pertaining to Governor) and Article 201(regarding the President), the court said both the functionaries are bound to give reasons in writing for withholding assent and the state govt must not be prevented from incorporating the changes or amendments to the bill. Though the governor is bound to give assent in case the assembly sends the Bill again after reconsideration, the bench said that it was not applicable for the President.
It said the President giving reasons in support of the decision is of paramount importance and it indicates that the Court can make a presumption that the President and by extension, the Central government, may not have acted in a bona fide manner if the decision is not reasoned one.
"The governor does not hold the power to exercise ‘absolute veto’ on any bill, we see no reason why the same standard would also not apply to the President under Article 201 as well. The President is not an exception to this default rule which permeates throughout our Constitution. Such unbridled powers cannot be said to remain in either of these constitutional posts. The only exception that has been carved out by the Constitution as regards the exercise of powers by the governor and that of the President under Article(s) 200 and 201 of the Constitution is that in the former, the governor once having withheld assent from a bill would then be bound to assent upon the reconsideration of such bill, whereas in the latter no such compulsion is constitutionally imagined for the President," the court said.
The court said where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us then it shall be open to the State Government to seek a writ of mandamus from this Court."
The bench also suggested that the President should invoke Article 143 of the constitution to seek SC's opinion in case when a state Bill's constitutionality is questioned. "We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the governor to refer bills to the constitutional courts for their advice or opinion thereupon," the court said.
Clearing the constitutional ambiguity over the role of constitutional head of the country and of the state regarding bills sent to them for assent, a bench of Justices J B Pardiwala and R Mahadevan said that both the authorities have to pass a reasoned order and cannot sit indefinitely on the Bills. Settling a timeline for governor to take a decision within a month if assent is granted or within three month if Bill is referred to the President or to assembly for reconsideration, the court also accepted Centre's 2016 office memorandum fixing a timeline of three months for the President to take a decision and made it a part of its order.
"The scheme under which the constitutional heads of both the country and the State respectively are required to operate, does not contemplate the idea of an ‘absolute veto’, thereby meaning that there can be no withholding of assent without furnishing reasons. This is owing to the fact that the simpliciter withholding of assent both by the President and the governor would be impermissible within the fundamental principles of a constitutional democracy ," the bench said.
Elaborating Article 200 (pertaining to Governor) and Article 201(regarding the President), the court said both the functionaries are bound to give reasons in writing for withholding assent and the state govt must not be prevented from incorporating the changes or amendments to the bill. Though the governor is bound to give assent in case the assembly sends the Bill again after reconsideration, the bench said that it was not applicable for the President.
It said the President giving reasons in support of the decision is of paramount importance and it indicates that the Court can make a presumption that the President and by extension, the Central government, may not have acted in a bona fide manner if the decision is not reasoned one.
"The governor does not hold the power to exercise ‘absolute veto’ on any bill, we see no reason why the same standard would also not apply to the President under Article 201 as well. The President is not an exception to this default rule which permeates throughout our Constitution. Such unbridled powers cannot be said to remain in either of these constitutional posts. The only exception that has been carved out by the Constitution as regards the exercise of powers by the governor and that of the President under Article(s) 200 and 201 of the Constitution is that in the former, the governor once having withheld assent from a bill would then be bound to assent upon the reconsideration of such bill, whereas in the latter no such compulsion is constitutionally imagined for the President," the court said.
The court said where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us then it shall be open to the State Government to seek a writ of mandamus from this Court."
The bench also suggested that the President should invoke Article 143 of the constitution to seek SC's opinion in case when a state Bill's constitutionality is questioned. "We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the governor to refer bills to the constitutional courts for their advice or opinion thereupon," the court said.
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