New Delhi, The Supreme Court on Thursday asked the Centre if courts were “powerless to intervene” if Governor sat over bills for years, rendering the state legislature “defunct”.

A five-judge Constitution bench headed by Chief Justice B R Gavai made the remark in response to Solicitor General Tushar Mehta’s submission that courts should refrain from interfering and passing binding directions in such a situation and a political solution can be found to deal with such an impasse.

“The assembly, elected by a majority, unanimously passes a Bill, if the Governor does not exercise the proviso under Article 200, it will be virtually making the legislature defunct. The persons who are elected, what is the safeguard for them,” the bench also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar told Mehta.

The bench continued, “… can we say that however high the constitutional functionaries may be, if they do not act, the court is powerless to intervene in such a situation? Assent is given or rejected, the reasons we are not going into, why he has given or not given. Suppose an act passed by the competent legislature, if Governor simply sits over it for an indefinite period, what will then?”

The bench 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.

Mehta said courts should not lay down a precedent in “such an extreme situation” and rather an endeavour ought to be made in finding a solution from within the system.

The Centre has challenged the April 8 verdict for ruling the bills pending with the Tamil Nadu Governor were deemed to have been passed.

“This deemed to have been passed bill direction is violative of the constitution,” Mehta said, arguing courts couldn’t substitute itself to the role of another constitutional functionary.

Mehta said no timeline could be fixed for President and Governor to act on the bills passed by the assembly as the Constitution itself didn’t provide any timeline for these constitutional functionaries.

The bench said it is not sitting in appellate jurisdiction to review the April 8 verdict.

CJI Gavai said, “We appreciate your timeline argument. But, consider a situation where the Governor ought to act, but sits over four years. What happens to democratic set up or the 2/3 majority by which the state is elected and represents the will of the people?”

Mehta said a solution had to be found politically and concluded his submissions on the presidential reference.

Senior advocate Neeraj Kishan Kaul, appearing for Madhya Pradesh government, has commenced his arguments.

The hearing would resume on August 26.

Earlier, the bench 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 the Governor on bills passed by state assemblies.

The bench made the remarks after Mehta said if some Governors sat over bills passed by the assembly, political solutions had to be explored by states instead of judicial solutions.

CJI Gavai 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 be given to dialogue.

Justice Kant weighed in, “If there is any inaction on the part of the 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 the 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 take place, the chief minister meets the Governor, he meets the Prime Minister and President and solutions are found.”

The law officer said there were several occasions telephonic conversations were 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.

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.

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 the President to decide on the bills reserved for her consideration by the Governor within three months from the date on which such a reference was received.

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