Presidential reference: ‘Setting timelines poses constitutional dilemma’

THe sublime margaret court on tues raised a constitutional quandary – would prescribing timelines for Governors and the chairman to act on state bills amount to judicially rewriting the Constitution, which only requires them to act “as soon as possible”?A constitution bench of Chief Justice of India Bhushan R Gavai and justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar is hearing a presidential reference under Article 143. The reference arises from the top court’s April 8 ruling by a two-judge bench, which imposed a three-month deadline on governors and the President to decide on bills -- a judgment that has since triggered intense debate on whether such timelines alter the constitutional scheme.Apart from Tamil Nadu, standoffs between governors and state governments over delays in clearing bills have played out in Punjab, Kerala, Telangana and West Bengal, where Raj Bhavans have come under fire for allegedly obstructing the legislative process.On the sixth day of the hearing of the reference, the five-judge bench repeatedly pondered what remedy a constitutional court could adopt if the President or governors failed to comply with judicially fixed deadlines.The bench pointed out that Articles 200 and 201 of the Constitution, dealing with gubernatorial and presidential assent, deliberately avoided fixing timelines. Article 200 lays down that when a bill is presented to the governor of a state, he or she may grant assent, withhold assent, or reserve the bill for the President, while Article 201 provides the President similar powers over bills reserved for consideration. Both articles use the phrase “as soon as possible” without prescribing any deadlines.The bench underlined that judicially mandating timelines could “practically amount to amending the Constitution,” since the framers of the document chose not to fetter these authorities with fixed periods. It added that while courts could certainly intervene in “cases of extraordinary delay,” it was “a difficult proposition” to convert a case-specific remedy into a universal rule of law.The court also observed that different bills and contexts may require different treatment. “Providing a fixed timeline may not be feasible because there could be varying exigencies or considerations warranting a different approach,” it remarked at one point of the daylong hearing.It further explored the consequences of imposing deadlines. The court asked: “What happens if the timeline is not followed? Can the governor or the President be hauled up for contempt? That is where the difficulty arises.”On the sixth day of the arguments in the matter, the bench pointedly observed that imposing a blanket time frame may “practically amount to amending the Constitution,” since the framers deliberately left Articles 200 and 201 without a fixed timeline. It added that while courts could intervene in individual cases of delay by invoking its powers under Article 142 , it was “a difficult proposition” to convert constitutional silence into a universal rule.It further stressed that individual grievances can be addressed under the constitutional provisions by writ courts , but different enactments and circumstances may require varying timelines. “Providing a fixed timeline… there could be different exigencies, considerations warranting a different approach,” he remarked.The bench also grappled with the consequences of judicially mandated deadlines. “What happens if the timeline is not followed? Can the Governor or the President be hauled up for contempt?” Justice Nath asked.Senior advocate Abhishek Manu Singhvi, appearing for Tamil Nadu, argued that timelines are essential to prevent indefinite gubernatorial inaction, which undermines state legislatures and effectively creates a “pocket veto.” He urged the Court not to adopt an “ivory tower” approach, but to address the “contemporaneous realities of huge delay.”Singhvi suggested that “deemed assent” could operate as a consequence of missed deadlines, citing precedents such as the Rajiv Gandhi assassination remission case and the Anoop Baranwal ruling on election commissioners, where the court had filled constitutional silences to preserve democratic functioning.Rejecting the notion that a governor could indefinitely withhold assent, Singhvi said: “He cannot be the final arbiter or a ‘super Chief Minister’. Allegedly unconstitutional bills are passed every day -- courts are there to test them. That is separation of powers.”Senior Advocate Kapil Sibal, representing West Bengal, supported the demand for timelines, warning that allowing governors to stall bills would mean “the will of the people need not be implemented because the governor chooses to withhold it. No principle of constitutional law allows a breakdown of constitutional machinery.”During arguments, Solicitor General Tushar Mehta objected to Singhvi citing instances from Tamil Nadu and Kerala, threatening to produce data from other states “since 1947” to show how “the Constitution was taken on a joyride”. “Mr Mehta, threats don’t work,” Singhvi retorted.Intervening, CJI Gavai cautioned counsel against turning the presidential reference into a partisan platform: “We are not going to decide the matter on the basis of which political dispensation is in power or was in power.”The presidential reference, sent by President Droupadi Murmu in May, has placed 14 questions before the court. Among them are whether the Supreme Court can judicially craft procedural mechanisms in areas where the Constitution is silent, and whether fixing timelines for constitutional authorities amounts to encroaching upon discretion vested in them by the framers.The hearings will continue on Wednesday.In the April ruling, the two-judge bench fixed a three-month deadline for the president to decide on bills referred by a governor, and one month for a governor to act on re-enacted bills. It had even invoked Article 142 to deem 10 Tamil Nadu bills as assented to, after holding that the governor’s prolonged inaction was “illegal”.