Supreme Court presidential reference hearing: Centre says ‘separation of powers… must be a two-way street’

A Constitution Bench comprising Chief Justice of India B R Gavai, Justices Surya Kant, Vikram Nath, P S Narasimha, and A S Chandurkar is hearing the reference made by President Droupadi Murmu on timelines fixed by a two-judge bench for the President and Governors to act on Bills sent by state Assemblies.

Mehta said, “Suppose a particular Governor is sitting over bills, there are political solutions. And such solutions are taking place, and not everywhere is the state advised to rush to the Supreme Court. The chief minister goes and requests the Prime Minister. The chief minister goes and meets the President. There are delegations which go, saying ‘these are the Bills which are pending, please talk to the Governor, let him take a decision one way or another’”.

“They are sorted out telephonically. There are joint meetings with the Chief Minister, the Prime Minister and the Governor, and such an impasse is solved. That would not confer jurisdiction to lay down a timeline by a judgment. That is the question. In the absence of a constitutionally provided timeline, can such a timeline be laid down by the Court even if there is justification?”

“Such issues have been arising in every state for many decades. But when statesmanship and political maturity are at play, they meet the constitutional functionaries at the Centre, and they discuss… They come together, and a political solution is found. These are the solutions to the problem.”

‘This is a collaborative exercise’

Mehta also referred to the seven-judge ruling of the SC in the P Rama Chandra Rao v State of Karnataka case, which held that time limits cannot be prescribed for criminal trials.

“This is what your lordships have said in this judgment that there is a question of delay, Article 21 is affected, people are languishing in jail, but a solution will have to be found from within the system. And Your Lordships are doing a lot from within the system — for streamlining, for ensuring that timely trials take place, with assistance of the legislature…This is a collaborative exercise.”

Mehta sought to draw on a hypothetical situation where people approach the President for a remedy for criminal trials pending for many decades, the President orders a deemed acquittal.

“Suppose there is a bill passed by Parliament that people of the country are approaching us that my trial is pending since 30 years, my son is in jail and it is not being taken up….Can the executive, maybe the President of India, say ‘I understand there is a problem and, therefore, your trial is treated to have been terminated, you are deemed to have been acquitted’. ‘You have already undergone 30 years.’ It can never be like that. Justification can never confer jurisdiction,” he said.

“And this separation of powers, I am saying without mincing words, must be a two-way street,” the SG stressed.

Justice Narasimha said, “You say we can’t specify a time limit, but there has to be a way the process works out.” To that, Mehta responded, saying that no justification will give the court jurisdiction to lay down a timeline.

“What your lordships are rightly pained at is a justification for fixing a time limit, but it will not confer the Court with the jurisdiction. We are not flooded with cases in which such instances have arisen. There are instances where one or two states have come. If that is the problem, that may be the problem; the remedy lies with Parliament. Milords have said, in view of this, we request Parliament, but your lordships do not direct. Your lordships never direct a coordinate constitutional functionary. That’s the constitutional comity.”