States vs Governors needs clarity from Supreme Court

Although there is no clear pronouncement from the Supreme Court on this issue, the governor does not withhold assent to a bill passed by the assembly.
Pic credits: PTI
Pic credits: PTI

Three state governments have approached the Supreme Court seeking its intervention on the issue of governors sitting on bills passed by the assembly. Punjab, Tamil Nadu and Kerala have filed petitions in the Supreme Court. The Chief Justice has made some initial observations on the petition filed by Punjab. He has asked the governor to realise the fact that he is not an elected representative of the people. This important observation gives some indication of the court’s thinking on this issue. As happened in the case of Telangana earlier, the governors in these three states may also take a decision on the pending bills before the court begins the hearing. Even if that happens, the issue raised by the states needs to be considered by the court for the future guidance of governors.

The issue is whether the governor has the discretion under the Constitution to sit on a bill sent for his assent. It is argued since Article 200, which deals with assent to bills, does not lay down any timeline for their disposal, governors can delay them indefinitely. This argument is very wrong, to say the least.

First, we may analyse the scheme of Article 200. It actually gives four options to the governor. The first is to give assent to the bill. The second option is to withhold assent and the third is to send it to the assembly for reconsideration. He may request the assembly to reconsider the bill as such or any specific provision therein, or even suggest an amendment to any provision of the bill. But if the assembly passes the bill again without accepting any of the governor’s suggestions, the governor will have to give assent to the bill. The fourth option is to reserve the bill for the consideration of the president. When the Constitution provides these options, the governor is required to exercise any one of them. He has no discretion whatsoever in the matter. Sitting on a bill is not an option provided by the Constitution. The governor cannot delay the finalisation of the legislative process.

A closer analysis of Article 200 would show that it requires the governor to assent to the bill without any delay. However, if he has any reservations about the bill he is directed by the Constitution to send it to the assembly “as soon as possible”. These words clearly indicate that first he should give assent immediately on receipt. In case he has some difference of opinion, the Constitution directs him to send it to the assembly for reconsideration as soon as possible after it is presented to him. No delay is contemplated here, which is clear from the use of the words “as soon as possible”. It simply means immediately and not whenever possible. Thus Article 200 makes it clear that either of these two actions need to be taken immediately on receipt of the bill.

As regards the withholding of assent, although this power is vested in the governor, it is never exercised. In this matter, the governor is in the same position as the sovereign in England. It is unconstitutional for the king of England to withhold assent to a bill passed by the British parliament without of the advice of the Council of Ministers. Although there is no clear pronouncement from the Supreme Court on this issue, the governor does not withhold assent to a bill passed by the assembly.

Section 75 of the Government of India Act of 1935 vested in the governor the discretion in giving assent, withholding of assent or sending the bill to the legislature for reconsideration. The word “discretion” was omitted from Article 200 of the Constitution. Otherwise, the wording of Article 200 and Section 75 is the same. Nevertheless it needs to be clarified by the Supreme Court whether the governor is to act on the aid and advice of the Council of Ministers when he assents to the bill or sends it to the assembly for reconsideration or reserves it for the consideration of the president.

It is strange that governors should keep the bills pending for years without taking any decision thereon for no ostensible reason. Constitutional authorities are required to act in a reasonable manner and within a reasonable time. A bill brought by the government before a legislature has some urgency. If a governor, actuated by some extraneous considerations, sits on it for two or three years he would be, in effect, violating the Constitution. Article 200, in fact, contains a time frame in as much as it says that the governor shall send the bill to the assembly as soon as possible. Giving assent or sending back to the assembly immediately are the two urgent steps the governor is mandated to take. It was, therefore, not necessary to fix any timeline in terms of months or weeks. It is the constitutional scheme to complete the legislative process within a reasonable time. A delay of two or three years in giving assent amounts to a total negation of the scheme.

Article 355 mandates the Union government to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. There may arise multiple situations which may make it impossible for a state to carry on in accordance with the Constitution. One such situation is where the governor sits on important bills passed by the state legislature, which brings governance to a standstill and in effect makes the legislature irrelevant. It is the responsibility of the Union government then to direct the governor to perform his constitutional functions.

Doubts are raised on the legality of a petition against the governor. Article 361 confers absolute immunity on the governor from any legal proceedings. But the Supreme Court, in Rameshwar Prasad v. Union of India (2006), held, “A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law. The expression purported to be done in Article 361 does not cover acts which are mala fide or ultra vires.” The court had made it clear that the bar is only against the power of the court to issue notice or making the president or governor answerable. So the court can examine the validity of the action.

P D T Achary

Former Secretary General, Lok Sabha


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