Presidential Reference| Matters of political discretion are non-justiciable, Centre tells SC
The Central government has told the Supreme Court that matters closely linked with high policy or political discretion, should be considered non-justiciable as it may require choices for which there exists no clear legal standards.
In an additional note submitted by the Solicitor General Tushar Mehta in the special reference case before the Supreme Court, the distinction between judicial review and justiciability has been relied upon.
A five judge bench has been told that question of justiciability is a self-imposed limitation exercised as a matter of caution and judicial statesmanship, especially while dealing with co-ordinate constitutional authorities and organs.
On the question whether the Courts have the wherewithal (judicially manageable standards) to scrutinise the Constitutional choices exercised by the Governor under Article 200, the note states, "Given the nature of the function discharged by the Governor under Article 200, laying down any guidelines or parameters on which the choice made by the Governor can be tested will actually result in the withdrawal of the tools made available by the Constitution to the Governor under Article 200 and impede the law-making process which has been envisaged in the Constitution.".
Centre has clarified that it does not say that the hands of the Court are tied in an egregious situation and it can always express its hope and advice to the errant functionary without passing a direction.
Submitting that the distinction between judicial review and justiciability is both basic and important in our constitutional scheme, the court has further been informed that justiciability operates as a threshold and before the court enters the merits, it considers whether there are judicially manageable standards to apply, whether the subject-matter lies within judicial competence, and whether an effective and lawful remedy can be granted without disturbing the constitutional balance between the Legislature, the Executive, and the Judiciary.
Non-justiciability as per the SG's submission, preserves comity among the organs of the State, ensures that public power is exercised under law, and allows remedies that correct legal wrongs without converting the court into a policy-maker or a constitutional peace-maker.
Earlier today, the Supreme Court was also told that the President of India requires its assistance of the aspect of writ petition under Article 32 being filed by states over the pendency of a Bill before the Governor or the President and the protection granted to President and Governors under Article 361 from being answerable to any court for the exercise and performance of the powers and duties of their office.
Solicitor General Tushar Mehta had submitted before a five-judge bench led by CJI BR Gavai that Court cannot tell a state government that if a Bill is not given assent to, they can come to the court. Article 32 does not lie, it is not justiciable, and mandamus cannot be issued, the bench was further told.
On Tuesday, Maharashtra government told the Supreme Court that assent to a Bill cannot be given by the court. "Assent to a law has to be given either by Governors or by President", Senior Advocate Harish Salve, representing Maharashtra government had submitted adding that President or Governor cannot be answerable to any court for the exercise and performance of the powers and duties of their office or for any act done or purporting to be done in the exercise of those powers.
Several states on Tuesday argued before the Supreme Court including Maharashtra, Madhya Pradesh, Chhattisgarh and Haryana against the fixing of a time limit for a constitutional authority to decide on Bills.
On August 19 the Supreme Court began hearing the reference made by President Droupadi Murmu. During one of the hearing the Supreme Court of India said that judicial activism must remain, but it should not turn into judicial terrorism or judicial adventurism. "I have always deprecated judicial overreach... I have always said judicial activism must remain, but it should not turn into judicial terrorism..," CJI BR Gavai said.
Earlier court was told by the Central Government that there are political solutions that can be adopted to resolve the dispute when a Governor is sitting on a Bill. Solicitor General Tushar Mehta told a CJI BR Gavai led constitution bench hearing the Presidential Reference on timelines for deciding bills, "Such solutions are taking place and it is not everywhere that state is advised to rush to the Supreme Court.. The Chief Minister goes and requests the Prime Minister..the Chief Minister goes and meets the President..there are delegations which go and say please talk to the Governor and let him take decision one way or another....telephonically they are sorted out..".
Supreme Court has also questioned whether withholding of bills by the Governor would leave the elected government at the whims and fancies of the Governor. In response, the Solicitor told court that once the Governor withholds a Bill, it falls through. "Governor is not just a postman..an individual who is not directly elected is no lesser than an individual who is directly elected..", the SG added.
During his submission, SG also told court that President of India Droupadi Murmu has sought the opinion on the court's order imposing timelines for deciding on bills on account of the genuine functional difficulties that have arisen for the President and the Governors across the country appointed by Her. Arguing that the reference is not a lis to be decided, SG Tushar Mehta had further told court yesterday that the questions under reference are precise, specific and seeks exercise of the plenary high constitutional power of the President invoking the advisory jurisdiction of this Hon’ble Court.
The President is said to have requested authoritative guidance on constitutional questions that either have arisen or are likely to arise across jurisdictions and the objection that the Reference “sits in appeal” is misconceived as advisory jurisdiction is being invoked strictly within its constitutional contours.
At the beginning of the Constitution Bench hearing, the Supreme Court heard parties on maintainability of the special reference case taken up over the opinion sought by President Droupadi Murmu on its order imposing timelines for the exercise of discretion by the Governor and the President under Articles 200 and 201 of the Constitution of India to decide on bills.
A five judge bench of the Supreme Court of India comprising CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar had recently issued notice to the Union of India and all the state governments in a special reference case which was registered on July 19 by the court's own motion titled, "IN RE : ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR AND THE PRESIDENT OF INDIA vs.".
In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the Governor and the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion, President Murmu has asked by way of reference.
Case Title: In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India
Case Number: Special Reference Case No. 1 of 2025
Bench: CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar