State Duty Ensure Tribals Happy Quashes Govt Irder Granting Pattayam assignment Encroached Land To Church Meagre Amount-

The Kerala High Court has stated that encroachers of government land are not entitled to any equity and there is no public interest to assign a property when there is an admitted encroachment. It stated that even if the encroachment was decades back, the state should work to repossess the land unless there is any legal impediment to it.

The petitioners are social workers from the landless tribal community in Wayanad district and have approached the Court seeking direction to the government for facilitating the allocation of residential and agricultural lands to tribal families of Wayanad.

They also alleged that the government assigned land 5.5358 hectares of land was transferred by government order to the 'Kallodi St.George Forane Church' for a meager amount of Rs 100 per acre illegally and against statutory provisions when hundreds of landless tribal people were waiting for agricultural and residential plots.

A single bench of Justice P.V.Kunhikrishnan stated that the Kerala Land Assignment Act and Rules were not intended for enriching persons who hold extensive lands under the guise of encroachment. It thus found that the assignment of land to the Church was unsustainable and that there was no public interest involved in it. The Court held:

“Assignment on the Registry of Government lands to such persons would defeat the very purpose of the Act and Rules. There is no vested right in any person to claim assignment on the registry of Government land. Encroaching on the government land and making illegal constructions on it will not give any vested right to encroachers. The government land should be allotted to the downtrodden and not to the wealthy and mighty people.”

The Court stated that about 20 percent population in the Wayanad district consists of tribal communities. It stated that several tribal people were waiting to get lands for residential and agricultural purposes and that the State has to ensure that all tribals are happy and a beautiful smile continues on their face forever.

Background

The petitioners alleged social exclusion and a high degree of deprivation faced by the tribal community despite government initiatives. It was argued that around 32 tribal starvation deaths took place in 2001, pursuant to which the government agreed to a seven-point agreement.

It was submitted that based on the agreement, tribals were promised lands, implementation of a five-year livelihood program, enactment of a new statute to prevent alienation of lands, a master plan for tribal development, and that about 10,000 acres would be found and distributed in Wayanad.

The petitioners further stated that a government circular was also issued in 2001 to prevent the assignment of land in favor of persons/ associations that did not involve public interest.

Respondents contended that the land in possession of the Kallodi St.George Forane Church had been used to build educational institutions, school playgrounds, buildings for church, cemetery, etc., and that the land had been in their possession since 1955.

Relying upon Kerala Land Assignment Rules 1964, it was stated that lands were assigned to the church only after setting apart other similar unoccupied areas for the members of the SC/ST community. They claimed that no encroachment has been done on lands set apart for the SC/ST community.

It was argued that the impugned land was initially given to the church on lease and the same was assigned on registry by following the existing rules under the powers of the state government.

The Court found that the church was an encroacher of 5.5358 hectares of land till it was assigned the same based on the government order granting pattayam.

It found that the land was being assigned at a meagre amount which was much less than the market price of the land. It thus noted that the intervention of the Court was necessary since the assignment of land was unsustainable.

Relying upon Rule 24 of the Kerala Land Assignment Rules, it noted that the government can assign land in the public interest subject to fulfilling other rules and conditions.

“What is the "public interest" in this case…..After encroachment on land, if churches or schools or other buildings are constructed on the Government's land, can the Government assign the land based on "public interest"?”, enquired the Court.

It then referred to Rule 7 of the Kerala Land Assignment Rules to state that land had to be assigned on a priority basis and stated that the assignment of land to the Church was not a priority. It noted that even though the land was encroached on as early as 1971, it can only be assigned if the encroachment was not considered objectionable.

In the facts of the case, the Court concluded that going by Rule 7, the Church was encroaching upon government land and that there was no public interest involved. “Simply because some educational institutions and religious institutions or cemetery are constructed after the encroachment, the land cannot be assigned stating "public interest" added the Court.

The court stated that it can interfere in the assignment of lands by invoking its writ jurisdiction to prevent injustice, arbitrariness, and flagrant violation of the law.

“Poor landless tribals are agitating to get lands for their livelihood and agriculture. …Thousands of applications of tribals are pending for getting land is the contention of the petitioners. In such a situation, as per Ext.P5, huge Government land is assigned to the 5th respondent invoking the powers of the Land Assignment Act and Rules. I am of the considered opinion that this is not only illegal but infringes the constitutional rights of the tribals including the petitioners.This Court cannot shut its eyes to these illegalities”, it observed.

It thus quashed the orders assigning the land to the Church and stated that if they were interested in buying the land, the government could consider selling it on the market value as of today assessed by the competent authorities.

It stated that such collected amounts by the government shall be used for the welfare of tribal communities in Wayanad, Further, it stated that if the Church was buying the land at market price, then they shall be evicted from the property within six months after giving the option to purchase the land based on market value. It also stated that the land recovered shall be distributed to the eligible persons under law.

Accordingly, the Court disposed of the writ petition and directed the government to file an action taken report before the Registrar General after complying with the orders above.

Counsel for Petitioners: Advocate Sajith Kumar V, P K Antony

Counsel for Respondents: Government Pleader Ashwin Sethumadhavan, Advocate G Sreekumar (Chelur)

Citation: 2024 LiveLaw (Ker) 133

Case title: WP(C) NO. 20705 OF 2015

Case number: K Mohandas v State of Kerala

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Judiciary cannot and should not usurp the powers vested with legislature

Justice Hemant Gupta, in his dissenting opinion in the Madras Bar Association case relating to the validity of Tribunals Reforms Ordinance 2021, observed that legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment as Tribunal members.

"The directions of the court cannot compel the legislature to frame law in that particular manner only. The legislature while enacting laws can legislate in a manner which is not in accordance with the directions issued by the Court to the legislature, even if the Court has specially chosen to do so. The directions of this Court stop outside the four walls of legislature.", the judge observed.

The majority comprising Justices L Nageswara Rao and S Ravindra Bhat observed that this minimum age stipulation of 50 years introduced by the Ordinance violated the earlier direction given by the Court in the 2020 Madras Bar Association case that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals.

According to Justice Gupta, no directions were issued in 2020 Madras Bar Association case in respect of eligibility conditions particularly relating to age. Eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations, the judge opined.

However, Justice Gupta agreed with the majority's finding that the the stipulations in the Tribunals Reforms Ordinance that the the Search and Selection Committee shall recommend two names for a post and that the tenure of members of Tribunal shall be four years are illegal.

The following are important observations made in the dissenting opinion:

Judiciary cannot and should not usurp the powers vested with legislature

"13. The judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence but the courts cannot direct the legislature to frame or enact a law and in a particular manner. The law declared by the Supreme Court is binding on all Courts in India in terms of Article 141 of the Constitution. The directions issued under Article 142 of the Constitution, are binding on every Court in terms of Article 141 of the Constitution. The legislature cannot be said to be Court within the meaning of Article 141 of the Constitution by any stretch of imagination. Article 144 of the Constitution mandates, civil and judicial authorities in India shall act in aid of the Supreme Court meaning thereby executive and judicial authorities shall act in aid of the Supreme Court. The legislature is neither civil or judicial authority who is mandated by the Constitution to act in the aid of Court. The legislature is supreme so as to enact a law falling within its legislative competence. The directions of the court cannot compel the legislature to frame law in that particular manner only. The legislature while enacting laws can legislate in a manner which is not in accordance with the directions issued by the Court to the legislature, even if the Court has specially chosen to do so. The directions of this Court stop outside the four walls of legislature. The judiciary will step in only after a law is enacted to test the legality of a statue on the known principles of judicial review. The Judiciary cannot and should not usurp the powers vested with legislature. The Judiciary cannot legislate in the scheme of the constitution.

53...The law declared by this Court is binding on all Courts within the territory of India under Article 141 of the Constitution whereas Article 142 of the Constitution empowers this Court to issue directions to do complete justice. The interpretation of law is binding under Article 141 of the Constitution even if there is a direction under Article 142 but such direction is not all pervasive and binding on the legislature

Eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations.

31. I am unable to agree to the opinion that the first proviso to Section 184 prescribing a minimum age of fifty years is an attempt to circumvent the direction issued in MBA-III. The condition of eligibility for appointment as a Judge of a High Court was kept in view while considering the eligibility of advocates as members of Tribunals. However, the Memorandum of Procedure for appointment as judges of the High Court finalized by this Court and forwarded to the Central Government in March, 2017 was that a person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota unless he has completed forty-five years of age on the date of recommendation by the High Court Collegium. Though, in terms of Article 217 of the Constitution, a candidate becomes eligible for appointment after 10 years of practice as an Advocate. Thus, an Advocate would be eligible for appointment as judge of the High Court around the age of 35 years. The Memorandum of Procedure adopted by the Collegium of this Court prescribed forty-five years of age as the minimum age. I find that eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations.

If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed

32. In terms of the Constitution read with the Memorandum of Procedure adopted by this Court, an advocate would have maximum tenure of 17 years as a Judge of the High Court, may be another three years as Judge of this Court. On the other hand, an advocate appointed as member of a Tribunal can have a tenure of 17 years, even if 50 is the minimum age for appointment. The tenure of such member is up to the age of 67 years with the possibility of being appointed as the Chairperson. This is not to compare the status of a High Court Judge with that of a member of a Tribunal. The members would be appointed on the basis of recommendation of the high-powered Search and Selection Committee having judicial dominance. If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed. The process of re-appointment is again with the High-Powered Search and Selection Committee with judicial dominance. A provision in the statute cannot be found to be untenable merely for the reason that there is a possibility of not being reappointed.

40.Thus, the fixation of fifty years of age as the eligibility condition cannot be said to be manifestly arbitrary or violative of any of the Fundamental Rights of any of the candidates which may render such condition of age as illegal. The argument is based on apprehension that it would be difficult for an advocate appointed after attaining the age of fifty years to resume legal practice after completion of one term, in case he is not reappointed. A person who is competent and good in his work will not find any difficulty to resume his practice but what would happen to his professional career if his term is not extended is a calculated risk which a candidate shall take at the time of seeking appointment. Such apprehensions as to what will happen in future cannot be a ground to strike down a condition of age in the statute. This Court is not possessed of the expertise to say that it will be difficult for an advocate to resume practice if he is not reappointed. I am unable to agree that the statutory provisions can be struck down on such grounds based on presumed apprehensions.

43. Therefore, I am of the opinion that in case of failing to secure reappointment, the candidate will not be able to resume practice is based upon apprehensions. Whether they are good or valid grounds to refuse reappointment can be subject matter of judicial review although I am of the opinion that the decision of the high-power Search and Selection Committee not to re-appoint a candidate may not warrant interference in exercise of judicial review

No directions were issued in respect of eligibility conditions particularly relating to age

33. The advocates were not eligible for appointment under 2020 Rules. Therefore, there was no condition of age of eligibility of such candidates. It may be noted that though this Court discussed the age of the candidates eligible for appointment to be "around 45 years" in para 44, but there was no particular direction qua age.

34. The discussions in the judgment are not to be considered as directions. There is background in which the ultimate directions are issued. Since no directions were issued in respect of eligibility conditions particularly relating to age, thus, fixing of eligible age as fifty years cannot be treated to be in contradiction to the directions issued in MBA-III. Even if it is contravening to any such direction, the legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment.

Law even if contrary to the directions or guidelines issued by the Court, cannot be struck down for the said reason

20. Thus, the Court will not direct to the State or Union to enact any particular law, or amend/ issue any notification for amendment of any statutory Rule or even to direct an Act to be enforced, when the legislature has conferred such power on the executive. The directions of this Court in MBA-III were issued in the peculiar facts to make the Tribunal functional at the earliest rather than mandating legislature to amend the law in a particular manner. The legislature has a right to enact law, which may not be necessarily in terms of the directions of this Court. Such law when enacted by Parliament or the State Legislature, even if contrary to the directions or guidelines issued by the Court, cannot be struck down for the said reason. The legislation can be struck down if the basis of the provision interpreted by the Court is not altered or if it violates the fundamental rights or the right to equality under Article 14 of the Constitution.

While dismissing the writ petition, the judge also observed that Section 184(11)(i) (ii) and Section 184(7) - which relate to recommendations of two names for a post and fixing of tenure of members as 4 years - are to be declared as they are reiteration of the provisions in Tribunals Rules 2020 which were disapproved by the Court earlier.

64..It is open to the legislature to fix tenure of the Chairperson and the members other than four years as the tenure of four years was found to be not tenable in MBA-III. Section 184(7) which contemplates that Select Committee should recommend a panel of two names is contrary to the directions of this Court in MBA-III. Thus, Section 184(11)(i) (ii) and Section 184(7) is declared to be void as the Ordinance has reiterated the provisions which were in 2020 Rules. 

Also from the judgment:

Tribunals Reforms Ordinance : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribu

Fill Up Vacancies In Tribunals Without Delay: Supreme Court Directs Centre

Judicial Independence Can Be Sustained Only When Incumbents Are Assured Fair Service Conditions, Security Of Tenure : Supreme Court

Shifting Principal Benches Of Certain Tribunals Outside Delhi May Help Bar To Grow At Different Places: Justice Hemant Gupta

Case: Madras Bar Association vs. Union of India [WPC 502 of 2021]
Coram: Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat
Citation: LL 2021 SC 296

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How Could Governor Send Re Passed Bills To President Supreme Court Reserves Judgment On Tamil Nadu Govt Olea-283481

The Supreme Court today(February 10) reserved judgment on the writ petitions filed by the Tamil Nadu Government against its Governor Dr RN Ravi withholding assent for 12 bills, the oldest of them pending since January 2020. Once the Bills were re-enacted in a special session by the Government, the Governor sent some of the re-passed laws to the President for reconsideration. 

Various constitutional issues concerning the interpretation of Article 200 and factual questions have emerged from the four days of the hearing. A bench of Justices JB Pardiwala and R.Mahadevan  has formulated eight questions for the parties, including some additional questions which were given today. To briefly summarise, the petitioners have argued that the action of the Governor sitting over the Bills for 3 years and then one fine day, declaring that he is withholding assent and when the Bills are passed again, reserving it to the President are violative of Article 200. Therefore, the Governor's declaration is held to be void. Whereas, the Respondent submitted that what troubled the Governor was repugnancy with the central laws and nothing else and therefore, in the national interest, he sent it to the President. 

On withholding assent

To summarise, the petitioners have interpreted Article 200 to three options: assent, withhold assent and reserve it for Presidential assent. As per them, the option of withholding the assent has to be read with the first proviso to Article 200, that is, the Bills are sent to the assembly for reconsideration. Reliance has been put on the Punjab Governor's decision which was pronounced on November 10, 2023, when this present matter was before the Court. In fact, in one of the hearings, the Court had observed that the Governor's declaration regarding withholding of assent came soon after the judgment in the Punjab case.

Whereas, Attorney General for India R. Venkataramani has argued that the Governor has four options: assent, withhold the assent, reserve it for Presidential assent and send it back to the assembly. He has submitted that in the present case, the Governor sent it back to the assembly with a declaration that he is withholding assent and not for re-consideration.

A factual question that was contemplated by the Court was whether the bills were returned to the Assembly or the Governor simply communicated that he was withholding assent. It has been informed by Senior Advocate Rakesh Dwivedi that the files which contained the Bills were sent to the House and there was no ad idem as to whether the Governor was returning the Bill to the house or not. 

On referring it to President 

It was argued by Senior Advocate Abhishek Manu Singhvi that the option of reserving it for the President has to be exercised as the first option. Once that option is not exercised, the Governor cannot send it to the President. Senior Advocate Mukul Rohatgi argued that the Governor can reserve the Bill for the President in the second round only if the Bills relate to taking the powers of the High Court as contemplated in the last proviso to Article 200.

As against this, the Attorney General has stated that the Governor has the discretion to send it to the President even after the Bills were re-enacted because the Bills were repugnant. Once the bills were with the President, Article 254 came in and the Bills ceased to exist. 

Today, Dwivedi referred to the history of Article 200. He referred to Section 75 (assent to Bills) of the Government of India Act, 1935, and remarked that the provision expressly uses the word 'discretion' in the context of the power exercised by the Governor. Adding to this, he also stated that keeping in mind federalism and supremacy of the Parliamentary democracy, it was a deliberate attempt on the part of the Constitution framers to take away any discretion from the Governor. 

From there, he referred to the Constituent Assembly debate and draft Article 175 where the words 'discretion' were not retained. 

The amendment to the draft Article 175(Article 200) was moved by Dr. B.R. Ambedkar, who said: "Sir, this is in substitution of the old proviso. The old proviso contained three important provisions. The first was that it conferred power on the Governor to return a Bill before assent to the Legislature and recommend certain specific points for consideration. The proviso as it stood left the matter of returning the Bill to the discretion of himself. Secondly, the right to return the Bill with the recommendation was applicable to all Bills including money Bills.

Thirdly, the right was given to the Governor to return the Bill only in those cases where the Legislature of a province was unicameral. It was felt then that in a responsible government there can be no room for the Governor acting on discretion. Therefore the new proviso deletes the word ' In his discretion.' Similarly it is felt that this right to return the Bill should not be extended to a money Bill and consequently the words 'if it is not a money Bill' are introduced. It is also felt that this right of a Governor to return ;the Bill to the Legislature need not necessarily be confined to cases where the Legislature of the province is unicameral. It is a salutary provision and may be made;use of in all case even where the Legislature of a province is bicameral."

What happens when the Governor withholds the Bills 

The Court had asked the Attorney General as to what happens when the Governor withheld the assent but did not return the bill to the house in exercise of the powers under the first proviso. In response, Venkataramani stated that the Bill falls. However, then Justice Pardiwala questioned that if Bills have fallen, how can the fallen Bills be sent to the President? He said: "How do you forward the fallen Bills to the President?"

The Attorney General argued that in the absence of any express provision precluding the Governor's reference to the President, the Governor can very well send it to the President. 

Again, the Court verified the dates on which the Governor withheld assent, that is November 13, 2023. After which, on November 18, the Bills were passed again and on November 28, the Governor sent the Bills to the President. 

Justice Pardiwala questioned how reenacted Bills were sent to the President: "If the Bills came to the Government with an endorsement that he is withholding, what was sent to the President? How could you send the repassed Bill to the President, Mr Attorney?"

Communication

The issue of communication has arisen both as a factual as well as constitutional question. Article 200 uses the words 'message' in the first proviso. It has been argued by Dwivedi that the Governor has to apply his mind and disclose the reasons why he is sending the Bills for reconsideration. Whereas, the Attorney General has maintained that the Governor was not obliged to, in this case specifically, because there was repugnancy which the Government was aware of in terms of the communication which have taken place between them. 

The communication apparently refers to the Governor asking the Government to constitute a search-cum-selection committee under his authority as the ex-officio Chancellor of the universities to appoint the Vice Chancellor and the Government did not agree to it. 

Aid and advice

Dwivedi has submitted that the act of the Governor in delaying and withholding its assent and then referring it to the President was without the aid and advice of the Council of Ministers and therefore, unconstitutional. Taking a cue from Article 111, he stated that the President, whenever he gives assent, does do so in the 'aid and advice' of the Union Cabinet as per Article 74. Therefore, the constitutional interpretation has to be much that the Governor is also obliged to act in the aid and advice of the Council of Ministers. 

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023

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Reports of previous hearings :

'TN Governor Seems To Have Adopted His Own Procedure' : Supreme Court Questions Governor RN Ravi For Withholding Bills

'If Governor Feels Bills Are Repugnant, Should He Not Tell Govt Immediately?' : Supreme Court Asks In Tamil Nadu Case

TN Governor Seems To Have Adopted His Own Procedure Supreme Court Asks Why Governor R N Ravi Withheld Bills-283173

The Supreme Court today(January 6) continued hearing two writ petitions filed by the State of Tamil Nadu against Governor Dr. RN Ravi for withholding assent for 12 bills passed by the State assembly. 

Since yesterday, a bench of Justices J.B. Pardiwala and R. Mahadevan has been hearing Senior Advocates Mukul Rohatgi,Abhishek Manu Singhvi  and P Wilson arguing that the Governor's action is unconstitutional and violation of Article 200. To summarise, they have argued that as per Article 200, the Governor has three options, namely: to assent, to reserve the Bill to send it to the President and to withhold the assent.

Reference has been made to the Punjab judgment, passed by a three-judge bench also comprising Justice Pardiwala, wherein it was held that withholding the assent as per the first proviso of Article 200 means sending it back to the State legislature. That is, the Governor cannot exercise 'pocket veto'. 

Today, the hearing began with Justice Pardiwala informing the lawyers about the eight questions framed by the Court :

1. When the legislative assembly has passed a Bill and presented it to the Governor for assent, but the Governor withholds his assent thereto, and as a result therefore, the legislative assembly passes the Bill again, and presents it to Governor, will it be open for him to reserve the Bill for the consideration of President, more particularly when he did not reserve it for the President when it was present at first instance.

2. Whether the discretion of Governor in reserving a Bill for the President is exercisable upon any Bill or is it limited to certain specified categories, particularly where the subject-matter appears to be beyond the competence of the State legislature or repugnant to a Central law. 

3. What considerations weighed with the Governor when he decided to reserve the Bill for consideration by the President?

4. What is the concept of pocket veto?

5. What is the effect of the expression 'shall declare' used in the substantive part of Article 200? Can a time period be read in Article 200 in which it is expected for the Governor to pass a declaration? 

6. How is Article 200 construed in two scenarios- 6.1 Bill is presented for assent and upon consideration, the Governor returns the Bill together with message requesting to reconsider certain aspects of Bill in terms of first proviso to Article 200 and 6.2 a Bill is presented but upon consideration, the Governor declares he withholds assent and therefore, the legislature passes the Bill and presents it again to the Governor for assent-whether the Governor bound to give assent in both scenarios?

7. When the President directs Governor to return the Bill and the Bill is passed and presented again to the President, in what matter President to act?

8. Is it mandatorily required to assent to the Bill when it is placed before him for reconsideration or is there a constitutional scheme in Article 201 and if yes, how is the silence to be construed? 

As for questions seven and eight, all lawyers maintained that it is not necessary to answer that if the Court holds that the reference to the President by the Governor is bad in law and should be set aside.

Pocket veto

On whether the Governor can withhold the assent and not refer it back to the State legislature, Senior Advocate Rakesh Dwivedi argued that the power to withhold simpliciter is not available under Article 200. He termed it as putting the Bills in "cold storage" when the Governor's position is only ornamental, that is, advisory. Singhvi called it a power to "decide not to decide".

To this, Justice Pardiwala concurred and added: "Perhaps, what you just submitted makes sense. His[Governor's] role is advisory because Article 200 says the State legislature can pass [the Bill when referred it back by the Governor] with or without amendment. It is not bound. The primacy lies with the House."

On this issue, it has been submitted that the issue of pocket veto is covered by the Punjab Governor's judgment and nothing further has to be deliberated upon it.

In thiat judgment, it was observed that the Governor is bound to send the Bills back to the State legislature: "If the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso."

At many instances during the hearing, including where this question was deliberated upon, Justice Pardiwala asked when was the Punjab judgment pronounced. When he was informed that the judgment was pronounced on November 10, 2023 and, and that the Tamil Nadu Governor endorsed on November 13, 2023 that he was withholding assent, Justice Pardiwala questioned why the Governor was not guided by this dictum. 

Can Bills be sent to the President on the second round?

The first, second and sixth question was answered together by the petitioners' counsel. To briefly summarise their arguments, it has been submitted that the Governor can only send the Bills to the President at first instance as per Article 200. Singhvi submitted that any interpretation otherwise would amount to giving the Governor "additional powers" than what is envisaged. If he says he is withholding assent, he has to send it to the State legislature for reconsideration.

It was argued that when sending for reconsideration, it must be accompanied by a 'message' which Dwivedi construed as having 1. application of mind as to why he is sending back 2. disclosure of reasons. Adding to this, Singhvi remarked that this would be "most anti-federal" action if the Governor simply sends it back without specifying why he is sending the Bills back to State legislature. 

However, the State legislature, because of its primacy, is not bound to accept the amendments. If the House does not accept the recommendations, and e-enacts the Bill, the Governor is bound to accept it. 

Justice Pardiwala however questioned if the Governor is bound to accept even when the law is repugnant. Dwivedi answered that the Governor is neither a "court of law" and nor can he "act as super-legislature". He also questioned why the mechanical orders sent by the Governor to the President claim both repugnance and intra-vires. "If the law is intra-vires that is the end of the matter."

However, Singhvi and Rohatgi had different opinions on repugnance. Singhvi argued that there can only be a second round of reference to the President if there is "absolute repugnance". Whereas, Rohatgi argued that it is the State that initiates the second reference and asks the Governor to send it to the President. He said: "You require presidential assent for Article 254. If the State wants to frame repugnant law, it will be hit by Article 254. But nevertheless, the legislature sends it to the Governor and the Governor sends it to the President, the latter take advice of the Union Parliament...That is, sending a repugnant law to the President can only be under aid and advice of the [Council of Minsiters]."

However, Justice Pardiwala questioned if this wouldn't be an "empty formality" on the part of the Governor. 

On the issue whether the Governor can exercise the discretion of sending to the Governor, all counsels argued that those instances are "expressed" in the Constitution and are limited in nature. For instance, in Article 356, the Governor sends a report to the President seeking a Presidential proclamation. 

What weighed with the Governor?

While Singhvi said that the only reason why which weighed with the Governor is "legislative incompetence," this issue was not discussed at length. When Attorney General R. Venkataramani began his arguments after lunch, the Court again and again emphasised that they want to see what convinced the Governor. 

What is something so gross in the bills which the Governor took 3 years to find?...Mr Attorney, either show us from the original files some contemporaneous records to connect saying he withheld assent that weighed with them, you cannot just file affidavit for it...Except one letter from Secretary. Tomorrow we want to see this. Today, we are called upon to interpret Article 200. On the factual aspect, show us why Governor decided to withhold the assent. Keep in mind, we delivered the Punjab judgment on November 10 and on November 13, the Governor endorses that he has withhold assent. Otherwise, on November 13, the Governor had a three-judges bench judgment for some guidance " Justice Pardiwala asked.

It should be noted that on November 28, 2023, the Governor sent the re-enacted laws to the President. The Court also stated that it would clarify the "factual" error, if any, on the issue of whether the Bill was not sent back for reenactment. AG Venkataramani on several occasions submitted that the Bill was returned stating that the Governor is withholding assent and was not returned to the assembly for reconsideration. Today, he also questioned if the Governor can expected to write an "essay" on why he is returning the Bill.

Attorney General said that it was merely "coincidence" that the Governor withheld the assent soon after the Supreme Court's Punjab Governor case verdict.

He also added: "...if the Governor says he is sending it to the President giving certain details of repugnancy, the mere statement of law, that repugnancy is evident to me, and that to, I leave it in the hands of the President to deal with that. All that is argued is that the Governor, even if he perceived repugnancy, go a little beyond that and write an essay on repugnancy.."

On this, Justice Pardiwala responded: "You will have to show us the repugnancy. In the name of repugnancy, you cannot [withhold assent]. From the materials on record, you have to show us from objective satisfaction, based on this material, that he arrived at the decision."

Time period in which assent has to be given 

Here, Singhvi emphasised that even in cases such as land acquisition laws where a timeframe is not given, the Court had read it as a reasonable time. He made an analogy between the Speaker's power under the Tenth Schedule to decide defection petitions to the Governor's power under Article 200.

Referring to Keisham Meghachandra Singh judgment, where the Court fixed an outer limit of 3 months for the Speaker to decide disqualification, Singhvi said that the Court can read such time-limits even when the Constitution is expressly silent.  

Remedies sought 

Dwivedi has sought that the President's reference be declared unconstitutional. Singhvi sought that assent must either be directed or could be construed as deemed to be granted. Rohatgi has asked for the Court's direction invoking Article 142. 

The hearing will continue tomorrow.

Also Read - 'TN Governor Seems To Have Adopted His Own Procedure' : Supreme Court Asks Why Governor RN Ravi Withheld Bills

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023 [notice not issued]