If constitutional functionaries don't discharge duties, can courts' hands be tied, SC asks

New Delhi | The Supreme Court on Thursday asked the Centre if hands of constitutional courts could be tied if constitutional functionaries refused to discharge functions or there was inaction on the part of Governor on bills passed by state assemblies.

A five-judge Constitution bench headed by Chief Justice B R Gavai made the remarks after Solicitor General Tushar Mehta, appearing for the Centre, said if some Governors sat over bills passed by the assembly, political solutions had to be explored by states instead of judicial solutions.

The bench, also comprising Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar, is hearing a presidential reference on the question whether the court can impose timelines for governors and President to deal with bills passed by state assemblies. If there was any wrong, the bench said, there ought to be a remedy.

CJI Gavai then asked Mehta, “If constitutional functionaries do not discharge their functions without any reason, can the hands of a constitutional court be tied?" Mehta said for all problems, courts couldn't be the solution and in a democracy, primacy had to been given to dialogue.

Justice Kant weighed in, "If there is any inaction on the part of Governor, which can vary from state to state, and if an aggrieved State approaches the court, can the judicial review of such inaction be completely barred. Tell us what can be the solution?" Calling for some "flexibility", Mehta submitted, "Suppose Governor is sitting over bills, there are political solutions which can be adopted.

It is not everywhere that the chief minister rushes to the court. There are instances where parleys takes place, the chief minister meets Governor, he meets Prime Minister and President and solutions are found." The law officer said there were several occasions telephonic conversations are made to resolve the impasse.

"For decades, this practice has been adopted to resolve disputes, if any. Delegations go and meet the governor, President and sometimes a middle path is found." He underscored invoking statesmanship and political maturity to end the impasse between the state government and Governor, who is Centre's representative.

"I am saying, every problem in this country may not have solutions here in the court. There are problems in the country where you find solutions within the system," he added.

Mehta further argued nowhere in the Constitution a timeline was fixed for Governor or President to act on the bills and where a timeline was provided, it was expressly provided.

CJI Gavai then told Mehta, "If there is any wrong, there has to be a remedy. This court is the custodian of the constitution and it will have to interpret the constitution by giving it literal meaning." Justice Kant agreed with the CJI and said, "If the power of interpretation vests in the Supreme Court, then interpretation of law has to be tried by the court." Mehta said justiciability was a different thing while adding something to the Constitution was different.

"There has to be some flexibility when dealing with the constitutional functionaries. This court has time and again called the law officer or representative and asked to do certain work without making it in the judgement," Mehta said.

He referred to the top court saying the Parliament should consider if there were any additions to be made to the Constitution.

"This court can very well ask the Parliament to enact a law fixing a timeline for Governor in dealing with the bills passed by the assembly but it cannot be done through the judgement of this court," Mehta added.

Justice Narasimha noted, “If an extreme view is taken to argue that you can't do it, you say we don't have the power to do it at all, how do you make the Constitution work?" Mehta then referred to the April 8 verdict in Tamil Nadu Governor case, leading to the present presidential reference, and said the verdicts say President and Governor will record reasons and if they don't follow the time line, states can approach the apex court or the high court.

"This means one institution is directing President to do it within some timeframe. I respect the directions and there may be justification but it can't confer jurisdiction," Mehta said.

The hearing is underway.

Earlier, the CJI said judicial activism should not become judicial terrorism.

The chief justice's remark came when Mehta said that elected people who have a lot of experience should never be undermined.

"We never said anything about the elected people. I have always said that judicial activism should never become judicial terrorism or judicial adventurism," the CJI told Mehta.

In May, President Droupadi Murmu exercised powers under Article 143(1) to know from the top court whether judicial orders could impose timelines for the exercise of discretion by the president while dealing with bills passed by state assemblies.

On April 8, the apex court while dealing with the powers of Governor with respect to bills passed by the Tamil Nadu assembly, for the first time, prescribed President to decide on the bills reserved for her consideration by Governor within three months from the date on which such a reference was received.