Presidential reference: 'As soon as possible' in Article 200 can't be more than 6 weeks

The “will of the people”, as expressed through a bill passed by a state legislature or the nation’s Parliament, cannot be left to the "whims and fancies" of state governors or the President, argued the West Bengal government on 3 September, Wednesday, in the Supreme Court.

The state’s counsel insisted that the executive is constitutionally barred from interfering with legislative processes — and that is what refusing a bill sent up for presidential reference (or gubernatorial assent) would amount to, and delaying it would be tantamount to the same.

Appearing for the TMC-ruled state before a five-judge Constitution bench led by Chief Justice B.R. Gavai, senior advocate Kapil Sibal argued that state governors lack the authority to question the legislature’s intent or examine the legislative competence of a bill passed by the assembly — such scrutiny falls strictly within the judiciary’s purview.

“The will of the people cannot be subject to the whims and fancy of the Executive (meaning, the state governors and the President). The Executive is barred from interfering with the process of legislation. The will of the sovereign people is supreme,” Sibal stated, on the seventh day of the ongoing presidential reference hearings.

Sibal pointed out that since Independence, it has been the rarest of the rare cases for a President to have withheld assent to any legislation, since such acts represent the will of the people of India. Any further challenge to legislation passed by the executive should be directed to the judiciary, and not the executive branch of the government, he argued.

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“A legislation can be challenged in a court of law by citizens or by somebody else. It's in the rarest and rare case that a governor says ‘I cannot give assent to the bills’ and withholds it," Sibal argued.

He also asserted that after its passage, a bill is presumed to be Constitutional — and “the legislature is not concerned with constitutionality; this is the domain of your lordships”, Sibal argued, rejecting any notion of governors as parallel arbiters of a state legislative body’s competence.

The Constitutional bench, which also includes justices Surya Kant, Vikram Nath, P.S. Narasimha and A.S. Chandurkar, is considering, among other issues, whether the court may prescribe timelines for governors or the President to act on bills from state legislatures — a matter that has been hotly debated in previous hearings.

Earlier sessions saw state governments voice frustration over governors withholding assent to crucial bills, causing legislative paralysis and raising concerns about federal balance.

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On Wednesday, it was the bench that pressed Sibal on whether — per his logic — bills outside the legislative domain or otherwise invalid must still be assented to, with their legality thereafter left to judicial review.

Sibal responded that the executive may not obstruct the legislature’s will; only courts may test the constitutionality of legislation that is passed. Governors, he argued, must act immediately — not after prolonged periods of three or six months, he said — as defined in Article 200.

Article 200 empowers governors to assent to, withhold assent to or return a bill, or reserve it for the President’s consideration after it is passed by a state legislature.

Here, Sibal argued that not even the President can indefinitely hold back a bill and must promptly return it with any comments.

He emphasised that the language of Article 200 specifies a response to the bill “as soon as possible”, which demands urgency: “It is not later than six weeks and it means ‘forthwith, with urgency’,” he interpreted, adding that Article 200 grants no personal discretion to governors to entirely block laws — which is what a protracted delay effectively achieves.

He contested, therefore, the Centre’s assertion that courts cannot set timelines for presidential / gubernatorial assent, arguing that judicially prescribed deadlines are essential for Article 200 to function effectively.

The CJI observed that under Article 200, governors may reserve bills for the President. Sibal noted that returning a bill is itself a declaration, but such power cannot allow permanent blockage of legislation.

“If we create an interpretation that allows the governor to permanently block the will of the legislature, the Constitution becomes unworkable,” Sibal insisted.

He concluded by asking the bench to restrict its decision to Article 200, saying many of the 14 questions referred to the apex court by Rashtrapati Bhavan were “hypothetical” or “not rooted in facts”.

“With the greatest respect,” he said, “many of these questions should not be answered. The only parameter that requires an authoritative ruling is Article 200 in the context of the governor.”

Sibal maintained, "Sovereignty of the state legislature is as important as sovereignty of Parliament. Should the governor be allowed to delay? This is an important question. You cannot create a discord [within the executive], otherwise it will break down. The Constitution has to be interpreted in such a way that it is workable... it is the will of people."

The bench, however, inquired whether a governor might not consider a bill’s potential repugnancy to central law. It suggested that a governor would need to examine whether a bill conflicted with federal law — and should not act simply as “a postman or as a super-legislative body”.

The court is currently weighing 14 questions sent by President Droupadi Murmu, including whether constitutional authorities may withhold assent indefinitely and whether judicially enforceable timelines can be established.

In this context, Sibal warned the court that indefinite delays by governors or the President endangers representative democracy and constitutional governance — and suggested that not all of the President’s question actually needed an answer to solve this dilemma.

Senior advocate Gopal Subramanian, for Karnataka, also argued against the indefinite reference, and advocate Anand Sharma appeared for Himachal Pradesh with similar views.

The hearings are set to continue on 9 September.