President, Guv bound by advice of council of ministers: Karnataka to SC

A five-judge bench led by CJI BR Gavai was told that Article 361 gives the President and governors immunity from criminal proceedings as they hold only ceremonial roles, not executive functions

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The Congress-led Karnataka government on Tuesday asserted before the Supreme Court that under the constitutional scheme, the President and governors are only "titular heads" and are bound to act on the aid and advice of the council of ministers, both at the Centre and in the states.

A five-judge Constitution bench headed by Chief Justice BR Gavai was told by senior advocate Gopal Subramanian, appearing for the Karnataka government, that Article 361 of the Constitution grants immunity to the President and the governor from any criminal proceedings, as they do not perform any executive function.

Referring to various verdicts of the apex court, Subramanian told a bench also comprising Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar that the satisfaction of governor required for acting on bills passed by assembly, is the satisfaction of the council of ministers.

Resuming his argument on the eighth day of hearing on the Presidential reference on whether the court could impose timelines for governors and President to deal with bills passed by state assemblies, Subramanian submitted that the Constitution does not provide any parallel administration in the state alongside the elected government.

Chief Justice of India Gavai asked Subramanian whether under section 197 of CrpC, which relates to prior sanction to prosecute public servants does the government have to act on aid and advice of council of ministers.

The senior lawyer said there are several judgments of this court, where it has been held that the governor acts independent of aid and advice of the council of ministers and exercises its discretion with regard to section 197 of CrPC.

On September 3, the West Bengal government argued before the top court that the will of the people in the form of a bill cannot be subjected to "whims and fancies" of governors and the President as the executive is barred from interfering with the legislative process.

The TMC-ruled state government had submitted that governors cannot question the will of the sovereign and proceed to examine the legislative competence of a bill passed by the assembly, which falls under judiciary's domain.

The court is examining 14 questions referred by President Droupadi Murmu, including whether constitutional authorities can indefinitely withhold assent to bills and whether courts can impose mandatory time frames.

In May, President Murmu exercised powers under Article 143(1) to know from the top court whether judicial orders could impose timelines for the exercise of discretion by the President while dealing with bills passed by state assemblies.