Under the Indian Constitution, some obligations of constitutional authorities are mandated, while others are implied. Some obligations evolve over time and acquire the status of conventions. But no constitutional functionary has the discretion to act in a manner that prevents another constitutional authority from discharging its sovereign functions.
On April 17, while addressing some interns in parliament, Vice President Jagdeep Dhankhar made a statement on a judgement of the Supreme Court in which Justices J B Pardiwala and R Mahadevan set a timeline for the president to sign bills passed by state assemblies. This was with reference to the inaction of the governor in not clearing bills passed by the Tamil Nadu legislature.
The question that arose was in the context of Article 200 of the Constitution, which stipulates, “When a bill has been passed by the legislative assembly of a state, or in the case of a state having a legislative council, has been passed by both Houses of the legislature of the state, it shall be presented to the governor, and the governor shall declare either that he assents to the bill, or that he withholds assent therefrom, or that he reserves the bill for the consideration of the president.” There is no timeline prescribed in Article 200 within which the governor is to either grant or withhold consent, or to reserve the bill for the president’s consideration.
The proviso to Article 200, however, stipulates that “the governor may, as soon as possible after the presentation to him of the bill for assent, return the bill if it is not a money bill, together with a message requesting that the House will reconsider the bill or any specified provisions thereof and consider the desirability of introducing any such amendments as he may recommend in his message and, when a bill is so returned, the House or Houses shall reconsider the bill accordingly, and if the bill is passed again by the House or Houses, with or without amendment and presented to the governor for assent, the governor shall not withhold assent therefrom”.
This clearly shows that the governor is obliged to send a message to the House qua the bill to which he does not accord assent “as soon as possible”. Now, the question that arose before the court is whether the governor is entitled, as a matter of constitutional law, to sit on the bill without either assenting to it or sending a message to the House with his recommendations. Obviously, even though no timeline is given in the proviso, it is inherent in the discharge of the governor’s functions that he cannot sit on the bill interminably.
It is obvious that an unelected constitutional authority, who performs purely executive functions, mostly ceremonial, except those required to be performed in his discretion under the Constitution, must ensure that his actions are not a roadblock on giving effect to the legislations cleared by a sovereign legislature. If he so does, the only option left with the court is to provide a reasonable procedure for ensuring that the governor acts expeditiously to implement the will of the state’s sovereign legislature.
After referring to the history of legislations during the period when the British were in power and analysing its evolution, the court came to the conclusion that the governor must, in this context, discharge his constitutional functions with alacrity, not later than 3 months of the bill’s presentation to him by the legislative assembly’s speaker.
The second proviso to Article 200 further stipulates that if the governor reserves for the consideration of the president any bill that, in his opinion, would, if it were to become law, so derogate from the powers of the high court as to endanger the position which that court is by this Constitution designed to fill. What it means is that the limited power of the governor in reserving a bill for the president’s consideration relates to it endangering the position of the court under the Constitution. The question arose as to whether, in such a situation, the president should act with alacrity given the fact that a sovereign legislature has passed the bill.
Collaborative procedural mechanisms must be put in place to ensure that each institution and authority functions in accordance with the letter and spirit of the Constitution, without impeding the functioning of others; more so since federalism is part of the basic structure of the Constitution.
As far as the position of the president is concerned, when the bill is received by the president for his or her assent, the president acts on the aid and advice of the Council of Ministers. The second proviso to Article 200 does not give any discretion to the president to act in his or her individual capacity. Therefore, it was unnecessary for the vice president to have stated publicly that the court cannot trammel upon the powers of the president.
It is an accepted principle of constitutional law that the president acts on the aid and advice of the Council of Ministers and the direction given by the court for the president to discharge his or her functions is, in fact, a direction to the Union cabinet. The cabinet must act with alacrity within 3 months, and for reasons to be recorded indicating why a decision qua the bill could not be taken within the period.
The Supreme Court’s declaration of the law in this regard is clearly within the constitutional framework; for, otherwise, sovereign legislative bodies will be impeded in discharging their functions at the discretion of the governor and in the case of the president, the Union cabinet.
It is in this context that the vice president’s comments that the Supreme Court, in exercising power under Article 142 of the Constitution, acts as a ‘nuclear missile’ are both unfortunate and inapt. Indeed, the high constitutional functionary should not be involved in the political thicket by making public statements of this nature. This creates unnecessary controversy inconsistent with the dignity of the office that the vice president holds, and the respect that it deserves.
Such controversies are constitutionally suspect, and seek to divide rather than unite.
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)