The Supreme Court on 20th August continued hearing the Presidential Reference made under Article 143 of the Constitution, concerning the scope of the Governor’s discretion under Article 200. Solicitor General Tushar Mehta, appearing for the Union of India, submitted that the Court must adopt a holistic interpretation of five interlinked constitutional provisions in order to properly advise the President. He further pointed out that while interpreting Article 200, the Court may also draw guidance from how similar provisions are treated in other constitutions across the world, as comparative constitutional law provides useful insights into the checks and balances on gubernatorial powers.
Tracing constitutional history, the SG referred to the Government of India Act, 1935, noting that time limits were prescribed for assent both for the Governor General and the President. He also emphasised that the framers, led by Dr. B.R. Ambedkar, conceived of India as a quasi-federal Constitution with primacy to the Centre in certain respects, while members such as H.V. Kamath had strongly cautioned against granting Governors unfettered discretion. Ambedkar had underscored that the Governor was meant to be a constitutional head, not an independent authority in conflict with the elected government.
The SG recalled how, even during the COVID-19 pandemic, Centre and States coordinated on crucial policy measures, reflecting the federal balance envisaged by the Constitution. He clarified that Article 163 does not in itself confer a general power of discretion, and submitted that where the Constitution gives no option to choose, the term “discretion” loses meaning. With reference to the first proviso of Article 200, he urged the Court to give effect to the words “Governor shall withhold assent” in a narrow and contextual manner, and undertook to explain the true meaning of the phrase “withhold” in constitutional practice.
With profound respect, he reminded the Bench that the powers of the Governor are those conferred strictly by the Constitution. Lightening the atmosphere, he remarked, “A smiling judge is always pleasing to argue before.” The matter remained part-heard, with the Solicitor General scheduled to resume his submissions post-lunch.