Hyderabad: The Supreme Court in its judgment dated November 10, on a petition filed by the Punjab government against its Governor’s action to hold back crucial bills, laid down the law that a Governor, in case he withholds assent to a Bill, should send it back to the state legislature “as soon as possible” with a message to reconsider the proposed law.
If the legislative assembly reiterates the bill “with or without amendments”, the Governor has no choice or discretion and has to give his assent to it. The expression “as soon as possible” conveyed a constitutional imperative of expedition. The ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone. That the message of the Governor does not bind the legislature is evident from the use of the expression “if the bill is passed again… with or without amendment”, the court held.
The court was of the opinion that a Governor who chooses to withhold a Bill without doing anything further would be acting in contravention of the Constitution. The court clarified that the Governor cannot choose between letting the bill die after rejecting it and sending it back to the house for re-legislation. The Governor as the unelected head of state would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamentals of a constitutional democracy based on a parliamentary system of governance.
This is indeed not the first instance in which a State government has complained against a Governor for delay in giving his/her ascent to a Bill passed by the state legislature. Similar cases have been filed with the Supreme Court by the governments of Telangana, Tamil Nadu, and Kerala.
In the case of the government of Telangana, on March 24, the Supreme Court had sent a strong message to the Governors of the states that they should return the Bills that they do not agree to “as soon as possible” and not sit over them. Although the bench did not assign any timeline to clear or return the Bills as demanded by the government of Telangana, the bench’s “as soon as possible” remark was recorded as a judicial order. The phrase “as soon as possible” has a significant content and must be borne in mind, the court had noted.
In the case of the government of Kerala, on November 24, the Supreme Court asked the office of Kerala Governor to read of the court’s judgement in the case of Punjab holding Governors responsible for acting within the four corners of the state legislature without flexing a non-existent veto power over bills presented to them for assent. The Chief Justice said the Kerala Governor’s office should go through the judgement in the Punjab case and make up their mind on the future course of action.
In the case of the government of the Tamil Nadu, which is still pending, the Supreme Court has agreed with the Tamil Nadu government’s argument that the Constitution does not provide Governor the ‘discretion’ to withhold the bills the state legislature has the re-enacted.
The Supreme Court has repeatedly ruled that the legislative power of Governors is extremely limited and that they are bound by the aid and advice of the council of ministers. From the judgment of a seven judge constitutional bench in Shamsher Singh and Anr vs. State of Punjab (AIR 1974 2192) to the 5 judge constitutional bench in Nabam Rebia vs. Deputy Speaker and Ors. [(2017) 13 SCC 326], the Supreme Court has consistently held that the Governor can normally act only on the aid and advice of the council of ministers and cannot exercise any executive powers as an independent authority.
In Nabam Rebia (2016), in particular, the court came to the conclusion that the discretionary power given to the Governor is limited to the scope postulated in Article 163(1); its ambit is not open to broader interpretation; there should not be any conflict of interest; and its exercise should not be final and immune from judicial review. The court observed that “…such a nominee cannot have overriding authority over the representatives of the people, who constitute the House or Houses of State Legislature,,,”
The Governor’s power to withhold assent or return a bill, with a message, for reconsideration is mistakenly seen as discretionary. In the constituent assembly it was explicitly clarified that returning a Bill was to be done only on the advice of the council of ministers and that it was an enabling provision for the government to recall a pending Bill in case it had second thoughts on it. But this is quite ambiguous; why would a government introduce a Bill in the legislature, in the first place, if it was not interested in its passage? Moreover, the government can always withdraw a Bill which has been introduced in the Parliament or the legislative assembly / council with its approval. Why then get the Governor involved in the process?
According to Article 200, when a Bill has been passed by the legislature of a 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. In case of withholding assent, the Governor is required to return the Bill, “as soon as possible”, together with a message for reconsideration of the Bill. When the Bill is presented a second time to the Governor he shall not withhold assent therefrom.
The Governor may reserve the Bill if in his opinion it will so derogate from the power of the High Court as to endanger its position. According to Article 201, when a Bill is reserved for the consideration of the President, the President shall declare either that he assents to the Bill or he withholds assent. The President may direct the Governor to return the Bill to the legislature with a message.
When a Bill is so returned, the legislature shall reconsider it accordingly “within a period of six months” from the date of receipt of such message. As regards the Governor acting with the aid and advice of the council of ministers, Article 163 indeed provides for it. However, it further states that the Governor may act in his discretion in so far as he is by or under the Constitution required to exercise his functions as such. It further states that any question relating to whether any matter is or is not a matter in which the Governor is required to act in his discretion, the decision of the Governor shall be final and the validity of anything done by him shall not be called in question.
The discretionary powers of the Governor, even though unquestionable, are not limitless, as mentioned earlier. They are normally exercisable in respect of reservation of Bills for the consideration of the President; making recommendation for the imposition of the President’s rule under Article 356; and seeking information from the Chief Minister with regard to the administrative and legislative matters of the state.
In addition the Governors also have situational discretion such as appointment of Chief Minister when no party has a clear-cut majority; dismissal of the government when it fails to establish its majority in a floor test; and dissolution of the state assembly when the council of ministers resigns and there is no alternative.
However, these powers have to be exercised very carefully, impartially and without prejudice in order to avoid charges of bias or political partisanship. A plain reading of the Constituent Assembly debates makes it amply clear that withholding assent to a Bill is not one of the discretionary powers of the Governors.
In the case of bills passed by the state legislatures the whole issue revolves around interpretation of the phrase “as soon as possible”. The Supreme Court has interpreted “as soon as possible” in the proviso to mean “as early as practicable without avoidable delay” in its 1972 judgment in Durga Pada Ghosh vs State of West Bengal. The Punchhi Commission (2010) had recommended that the Governors should take the decision with respect to the bills presented for their assent within a period of six months.
Article 201 provides a time limit of six months for State Legislatures for the reconsideration of a Bill after it is returned by the President, having been earlier reserved by the State Governor for his/her consideration. Perhaps the phrase “as soon as possible”, used in the first proviso to Article 200, similarly needs to be qualified to provide a time limit of either some months or subsequent sessions of the Legislature, such as “but not later than six months or the next two sessions of the State Legislature, whichever is more, unless it is reserved for the consideration of the President” on the grounds of unconstitutionality.
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