Presidential reference: 'Political solution' over rushing to SC, says Centre on Governor's delay

New Delhi, Aug 21 (IANS) The Centre on Thursday told the Supreme Court that a "political solution" should be prioritised by the states over "rushing to the top court" when a Governor delays assent to Bills passed by the legislative Assembly.

During the hearing on the Presidential reference made under Article 143 of the Constitution in the aftermath of the apex court verdict in the Tamil Nadu Bills case, Solicitor General Tushar Mehta, appearing for the Union government, argued that not every problem needs to be resolved by the Supreme Court.

"Suppose a particular Governor is sitting over bills, there are political solutions. And such solutions are taking place, but it is not everywhere. It is not everywhere the state government rushes to the Supreme Court. The Chief Minister goes and requests the Prime Minister. The Chief Minister goes and meets the President," SG Mehta, the second-highest law officer of the Centre, said.

"There are delegations that go and say, 'These Bills are pending, please speak to the Governor and have him decide one way or the other'. The issue can even be sorted out over the telephone,” Mehta added, suggesting that joint meetings between the CM, the PM, and the Governor could resolve such impasses.

He argued that in the absence of an explicit timeline under the Constitution, the question arises whether the Supreme Court can lay one down, even if there exists sufficient justification.

"There may be justifications, but justification does not confer jurisdiction," said SG Mehta, emphasising that such issues have existed in every state for decades, but "political maturity" has usually led to "political solutions" through meetings among constitutional functionaries.

To lay down timelines for Governors to act on Bills, in the absence of a constitutionally prescribed limit, he contended, would violate the principle of separation of powers and lead to constitutional chaos.

Terming separation of powers "a two-way street", SG Mehta said the Supreme Court never issues directions to a co-ordinate constitutional functionary, calling it a matter of "constitutional comity".

He added that the apex court cannot prescribe how a constitutional functionary should exercise power, since the court cannot legislate.

After CJI B.R. Gavai remarked that withholding assent indefinitely would render the legislature defunct, SG Mehta said the solution lay in a constitutional amendment, but until then, the political process was the way out.

The five-judge special Bench, headed by CJI Gavai and comprising Justices Surya Kant, Vikram Nath, P.S. Narasimha, and Atul S. Chandurkar, is set to advise the President on whether the exercise of constitutional discretion by a Governor on Bills is justiciable when Article 361 of the Constitution bars judicial review of gubernatorial actions.

On Wednesday, the Supreme Court remarked that allowing a Governor to withhold assent to Bills without returning them to the state Assembly would place the functioning of an elected government at the "whims and fancies" of an unelected Governor.

When SG Mehta said that if a Governor withholds assent, there is no obligation to return the Bill to the state Assembly for reconsideration, CJI Gavai remarked: "Would we not be giving total powers to the Governor to sit in appeal? The government elected with a majority would be at the whims and fancies of the Governor."

Mehta argued the Governor’s power to withhold assent is meant to be exercised rarely and sparingly, only in extraordinary situations such as when a Bill is unconstitutional, repugnant, or violative of fundamental rights.

--IANS

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