The story so far: The Supreme Court on November 10 flagged that the “constitutional deadlock” created by Tamil Nadu Governor R.N. Ravi’s failure to assent to twelve crucial Bills passed by the Legislature was a “serious concern.” On the same day, the Bench led by Chief Justice of India (CJI) D.Y. Chandrachud also chided Punjab Governor Banwarilal Purohit, observing that not giving assent to Bills by calling a legislative assembly session unconstitutional was akin to “playing with fire.” The Court went on to highlight that the Governor is only the ‘titular head’ and that Bills being kept in limbo could result in the potential breakdown of parliamentary democracy.
In the recent past, prolonged delay in assenting to Bills has become a source of confrontation between Opposition-ruled States and their governors — provoking a battery of State governments to approach the Supreme Court alleging that such conduct is stymieing day-to-day governance. Tamil Nadu has accused Governor R.N. Ravi of positioning himself as a ‘political rival’ and creating a constitutional deadlock by sitting on the Bills for months. Kerala has moved two separate petitions against Governor Arif Mohammed Khan accusing him of trying to “defeat the rights of the people” of the State by indefinitely sitting on crucial Bills, especially those addressing post-COVID public health concerns.
Punjab has contended that seven of its Bills have been pending consideration by the Governor since June, threatening to bring the administration to a “grinding halt.” Similarly, a collective of academicians, including former Vice Chancellors, last week urged the West Bengal government to approach the SC on the issue of Bills pending with the Governor, owing to which the search and selection committees for 31 Universities in the State have been stalled.
In the wake of these rifts, The Hindu decodes what role the assent of a Governor plays; the extent of autonomy enjoyed by the constitutional authority and whether his actions can be subjected to judicial scrutiny.
What is the process of granting assent?
Assent of the Governor or the President is necessary for a Bill passed by the legislature to become law. The Constitution is, however, categorical about Money Bills, which are automatically considered to have a Governor’s assent. When a Bill passed by both Houses of the Legislature is presented to the Governor for his assent, he is empowered under Article 200 of the Constitution to exercise any of four alternatives —to give assent, withhold assent, return the Bill to the Legislative Assembly for reconsideration, or reserve it for the consideration of the President.
If the Governor chooses to withhold assent, he should return the Bill ‘as soon as possible,’ requesting the Assembly to reconsider the proposed law or any specified provisions or suggest amendments. However, the Assembly is not obligated to accept these recommendations and can pass the Bill again in its original form. . This time, the Governor is constitutionally bound to either give assent to it or reserve it for the President’s consideration. This provision affirms the primacy of the legislature comprising elected representatives of the people over the constitutional head of the State in the legislative exercise. A Bill can be reserved for the President’s consideration if the Governor is of the opinion that it would endanger the position of the concerned High Court by whittling away its powers.
However, there is no timeline prescribed for Governors to make a decision with regard to a Bill. This loophole is often misused to delay legislation — a manoeuvre called a ‘pocket veto’. Similarly, no timeline has been outlined for the President to decide on the outcome of a Bill. There is, however, a time period of six months prescribed for the State Assembly to reconsider a Bill if the President decides to refer it back to the House.
In order to curb the misuse of such gubernatorial powers, Tamil Nadu’s plea has urged the SC to fix a time limit by which Governors should assent or return a Bill. Kerala has also challenged a Kerala High Court ruling of November 30 last year, which declined to fix a timeline for the exercise stating that Article 200 falls under the discretionary powers of the Governor.
Constituent Assembly debates and the Governor’s discretion
Although the Constitution vests the executive power of the State in the Governor, he can act only on the ‘advice’ of the Council of Ministers, with the Chief Minister as the head of the Council. This position has been subsequently affirmed by the Supreme Court in Shamsher Singh v. State of Punjab (1974). However, Article 163 grants the Governor discretionary powers in certain instances by stipulating that the Council of Ministers of a State should ‘aid and advise’ the Governor in carrying out his functions, ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’
In the Constituent Assembly, Dr. B.R. Ambedkar had assuaged concerns about this discretion clause (Article 143 of the draft Constitution), by underscoring that it vesting was “in no sense contrary to or in no sense a negation of responsible government” and that the phrase “except in so far as he is by or under this Constitution” in the Article meant that the discretion was a “very limited” clause. He added that the provision on the Governor’s discretionary powers must be read in conjunction with other articles which specifically reserve the power to the governor.
Initially, Section 75 of the Government of India Act, 1935, contained the words ‘in his discretion’ while referring to the Governor’s grant of assent to Bills — this phrase was consciously omitted when Article 175 in the draft Constitution (later renumbered as the present Article 200) was enacted. Although members of the Constituent Assembly were of the opinion that the Governor’s exercise of discretion would act as a “potential check on disruptive legislative tendencies” by States, Dr. B. R. Ambedkar, while introducing the amended proviso, cautioned that “in a responsible government there can be no room for the Governor acting on discretion.”
“The Governor under the Constitution has no functions which he can discharge by himself: no functions at all...This article certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter. Even under this article, the Governor is bound to accept the advice of the Ministry.”Dr. B.R. Ambedkar [Constituent Assembly Debates]
Can the Governor use discretionory powers to withhold assent?
The extent to which the Governor can exercise his discretion to withhold assent to a Bill has been a subject of judicial scrutiny but there lacks an authoritative pronouncement in this regard. In Purushothaman Nambudiri v State of Kerala (1962), the Supreme Court held that since there is no time limit prescribed under Articles 200 for the Governor to give his assent, the Constitution framers did not intend for a Bill pending assent to be at risk of lapsing on dissolution of the House.
In Shamsher Singh, the Court held that it is only with respect to the second proviso of Article 200 (the Governor’s power to reserve Bills for the President’s consideration) that the Governor exercises discretion independent of the Council. It also highlighted that such an exercise of discretion must be made only in exceptional circumstances.
More recently, in Nabam Rebia and Bamang Felix v. Dy. Speaker (2016), the Court reiterated that the Governor exercises discretion only with regard to whether a Bill ought to be reserved for consideration of the President or not. It also held that Article 163(2) has to be understood in the context of Article 163(1), which means that only those matters where the Constitution expressly permits the Governor to act autonomously cannot be challenged before a court of law.
By when should Bills be returned to the State Assembly for reconsideration?
The first proviso of Article 200 stipulates that the Governor should send back Bills to the Assembly for reconsideration ‘as soon as possible’ — however, it is silent on what exactly this phrase means. In Durga Pada Ghosh v. State of West Bengal (1972), the Supreme Court interpreted the phrase to mean “as early as practicable without avoidable delay”. In 2020, the SC, while dealing with a case on anti-defection law (Keisham Meghachandra Singh v. The Hon’ble Speaker) clarified that the ‘reasonable time’ within which the Speaker must act on disqualification petitions against defecting MLAs would mean a time period of three months.
The 1988 Sarkaria Commission report on Centre-State relations recommended that delay by Governors in assenting to Bills could be avoided by ensuring that there is prior consultation with the Governor at the stage of the drafting of the Bill itself, and by prescribing time limits for its disposal. The National Commission to Review the Working of the Constitution set up by the A.B. Vajpayee government in 2000 reiterated this view by highlighting that there should be a time limit, desirably six months, to give assent or to reserve a Bill for consideration of the President. If the Bill is reserved for the consideration of the President, there should be a time limit, desirably of three months, within which the President should decide whether to accord his assent, to direct the Governor to return it to the State Legislature, or to seek the advisory opinion of the Supreme Court.
In 2022, DMK Rajya Sabha MP P. Wilson introduced a Private Member Bill in the Parliament seeking to establish a time limit of two months for the Governor to declare whether he assents or withholds assent for a Bill and a period of one month for him to return the Bill to the Houses for reconsideration. Kerala has also sought the constitution of a seven-judge Bench to review the court’s ruling in Purushothaman Nambudiri which stipulated that the Constitution does not impose any time limit within which the Governor should provide assent to Bills.
Is judicial review permissable?
Article 361 of the Constitution prohibits courts from initiating proceedings against a Governor or the President for any act done in the exercise of their powers. This gives rise to the question of whether the government of a State can challenge a Governor’s action of withholding assent to a Bill in a court of law. Being a high constitutional authority, the Governor is constitutionally mandated to give reasons for refusing to give assent. Despite the immunity granted to the Governor, if the grounds for refusal are mala fide or ultra vires, the Governor’s action can be subjected to judicial scrutiny and struck down as unconstitutional as per the Supreme Court’s judgment in Rameshwar Prasad and Ors. v. Union Of India and Anr (2006). The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides, the Court held.
Reiterating this, the SC in Nabam Rebia opined that the discretionary powers of the Governor to withhold assent are amenable to judicial review.
Supreme Court strictures
Time and again, the Court has cautioned Governors from indefinitely withholding assent to Bills as it subverts the federal structure and obfuscates governance. In April last year, the Court while hearing a plea moved by the State of Telangana complaining that Governor Tamilisai Soundararajan had kept pending several important Bills sent to her for assent, underscored that Governors should return Bills they do not agree to “as soon as possible” and not sit on them. Referring to the proviso to Article 200, a Bench led by CJI D.Y. Chandrachud observed — “The phrase ‘as soon as possible’ has a significant content and must be borne in mind by constitutional authorities.”
Expressing acute displeasure at the trend of Governors holding back key Bills, especially in Opposition-ruled States, Chief Justice D.Y. Chandrachud on November 6 remarked that Governors should not be oblivious to the fact that they are not elected by the people. He added that it was time everybody, including Governors and Chief Ministers, did “a little bit of soul-searching.” Echoing similar sentiments, the Court last week while hearing the Punjab government’s plea against Punjab Governor Banwarilal Purohit, underscored that the Governor is intended to be only the “titular head of the State” who must act on the aid and advice of the council of ministers.
“Real power vests with the elected representatives of the people in a parliamentary form of democracy. The Governor, as an appointee of the President, is a titular head of the State...The power to take decisions affecting the governance of the State or the nation is essentially entrusted to the elected arm of the state. ”Supreme Court
In May, a Chief Justice-led Constitution Bench cautioned that Governors have no power to enter the political arena or take part in any intra-party or inter-party disputes, while referring to the decision of former Governor Bhagat Singh Koshyari to call the Uddhav Thackeray-led government to prove majority in the House.
Expert speaks
Constitutional expert PDT Achary, a former Lok Sabha secretary general, highlights that withholding assent to a Bill by the Governor neutralises the entire legislative exercise by an elected legislature enjoying the support of the people. “This option is undemocratic and essentially against federalism”, he added.
Further, Mr. Achary pointed out that just because the Constitution does not fix any timeline for the Governor to decide the question of assent, it does not mean that the Governor is entitled to indefinitely sit on a Bill. “This is illogical and militates against the constitutional scheme in respect of law making by the legislatures. Article 200 does not contain such an option. The Governor is required to exercise one of the options mentioned in that Article. We must understand the purpose of giving options is for the authorities to exercise one of them and not to do something which is not an option at all. All constitutional authorities are required to act in a reasonable manner. Unreasonable acts are unsustainable in law,” he wrote in The Hindu.
