NEW DELHI: Supreme Court has always stuck to the cardinal constitutional principle of separation of powers, a five-judge bench led by CJI B R Gavai said Thursday, following the Centre’s emphasis on the executive, legislature and judiciary sticking to their domains. “Judicial activism” should not become “judicial terrorism”, the CJI said.The bench of CJI Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar said, “We believe in the separation of powers between the executive, legislature and judiciary. However, if one wing …fails to discharge its duties, Supreme Court as custodians of the Constitution and protector of rights, cannot remain a mute spectator.”
This response from SC came after solicitor general Tushar Mehta repeatedly pleaded with bench that SC fixing timelines for the President and governors to act on bills, not specified in Articles 200 and 201 of the Constitution, would amount to judiciary amending the provisions, a task exclusively reserved for Parliament.Before reserving its opinion on the Presidential Reference which sought SC’s opinion on 14 questions relatable to an unprecedented April 8 decision of a two-judge SC bench fixing timelines for the President and governors, the CJI B R Gavai said, “I am a strong believer in separation of powers. I have been declaring in public that judicial activism should not turn into judicial terrorism.”Interestingly, the bench said it disagreed with an argument of opposition-led states that SC, in its jurisdiction to render opinion to the President under Article 143, cannot reverse the two-judge bench’s April 8 judgment, which apart from fixing timelines for the President and governors, had granted deemed assent to 10 bills pending for a long time with the Tamil Nadu governor.The bench said, “We will answer the President’s queries and will declare the law, which will hold the field for future. We will not decide the facts of the case and the correctness of the decision of the two-judge bench. But the interpretation of Articles 200 and 201 by the two-judge bench is a view which is not binding on the five-judge bench.”Mehta said the President is not questioning the correctness of the April 8 judgment and is only seeking opinion of the apex court on the correctness of the law laid down by the two-judge bench on timelines and whether the judiciary can grant deemed assent to bills which is the sole prerogative and discretion of governors and the President.Both attorney general R Venkataramani and Mehta acknowledged that governors cannot sit idle on a bill indefinitely. However, they argued that in certain situations, a governor is entitled to use his discretionary power to withhold assent to a bill if, in his view, it could subvert or undermine the Constitution, erode democracy, have national implications, or trigger a dispute with other states.Venkataramani said the constitutional mechanism under Articles 200 and 201 has worked smoothly for over 75 years in which more than 94% of bills have been assented to by governors or the President. Why would the court disturb the settled mechanism which has worked well because of some stray instances of delay by governors, he asked.The AG argued that if because of certain instances of delay or withholding of assent SC enters the Parliament’s domain to snip or add words to these two provisions, it would lead to a ‘Procrustean bed’ phenomenon (originating from Greek mythology in which a bandit used to force travellers to fit the length of the bed by either amputating their limbs or stretching them), which would encourage states to rush to SC for moulding of constitutional provisions for every small aberration in future.
