Court can't give assent to bills, only guv and Prez can: Maharashtra to SC
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New Delhi: The Maharashtra government on Tuesday told the Supreme Court that courts cannot accord assent to bills passed by state assemblies, as the power to do so lies solely with governors or the President.
Senior advocate Harish Salve, representing Maharashtra, made the submissions before a five-judge Constitution bench headed by Chief Justice B R Gavai, also comprising Justices Surya Kant, Vikram Nath, P S Narasimha, and A S Chandurkar. The hearing concerned a presidential reference on whether the court could impose timelines for governors and the President to deal with bills passed by state assemblies.
Salve submitted, “The court cannot issue a writ of mandamus asking the governors to grant assent to bills… Assent to a law cannot be given by the court. Assent to a law has to be given either by governors or by the President.”
Referring to Article 361, he said the President or Governor “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties." The court, he argued, could only inquire about decisions, including proposed ones, by governors or the President, but could not question the reasons behind those decisions.
Salve distinguished between the powers of the President and governors, noting that while the former acts only on the aid and advice of the central government, governors possess wider powers, including the authority to withhold assent. “It is not a feature of Indian federalism that an assent must follow after a few rounds of confabulations. We have a limited federalism with hope that all these functionaries will act with wisdom,” he said.
He emphasised that the governor’s power was not amenable to judicial review. Referring to Article 200, which deals with governors’ powers concerning bills, he said the provision does not set a timeline for action. The passage of bills involves political deliberations, which may sometimes take 15 days and, at other times, six months. “Such decisions are not taken by sitting in an ivory tower,” he added.
Salve reiterated that once the Constitution delineates powers, their exercise by high constitutional functionaries is not open to judicial review. He said the language of Article 361 is clear: governors and the President “shall not be answerable to any court for any exercise of powers and duties.”
“If the court accepts the existence of power to withhold assent, then it cannot ask why assent was withheld,” Salve added. He clarified that while governors’ authority to withhold assent is constitutionally recognised, the term “veto” would be misleading. “Calling it a veto is an uncharitable characterisation… but yes, the Governor has the power to withhold. It is inherent in Article 200 and consistent with Article 201, which allows the Union to withhold assent even if the bill is within the State List,” he said.
Responding to a query by Justice Narasimha on whether even a money bill could be withheld, Salve said, “Yes, because once a bill has undergone amendments on the floor of the house, the Governor may still withhold assent. I am only on the existence of the power, not how it is used.”
Senior advocate N K Kaul, representing Madhya Pradesh, highlighted that under Article 200, governors have three clear options: assent, withhold assent, or reserve the bill for the President. He argued that the provision allowing governors to return a bill is consultative, not a substantive veto. Senior advocate Maninder Singh appeared on behalf of Rajasthan.
The bench also questioned whether the judiciary would be left powerless if a governor refused to act indefinitely. “When the house has passed a bill, can the Governor sit on it indefinitely? Suppose a bill is passed in 2020; will the court be powerless if there is no decision even in 2025?” the bench asked.
In May, President Droupadi Murmu exercised powers under Article 143(1) to seek guidance from the top court on whether judicial orders could impose timelines on the exercise of discretion by the President while dealing with bills passed by state assemblies.
With PTI inputs