Governors Must Generally Act As Per Advice Of State Council Of Ministers On Assent For Bills : Supreme Court

In the Tamil Nadu Governor case, the Supreme Court held that as a general rule, the Governor does not possess any discretion regarding the grant of assent for Bills under Article 200 of the Constitution. The Governor has to act as per the aid and advice given by the State Council of Ministers.

"We are of the view that the Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers," observed the bench comprising Justice JB Pardiwala and Justice Mahadevan.

The only exceptions to this general rule are as follows:

a. Where the bill is of a description as provided under the second proviso to Article 200;

b. Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision;

c. Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril.

The Court noted in the Government of India Act, 1935, there was an explicit discretion given to the Governor while reserving the Bill for the consideration of the President. However, it was removed at the commencement of the Constitution for the reason that the will of the people lies with the legislature and the elected government.

The Governor under the scheme of Article 200 would, as a general rule, be expected to act on the aid and advice of the Council of Ministers as provided for under Article 163(1). The deletion of the expression “in his discretion” by the framers of the Constitution during the course of adapting Section 75 of the GoI Act, 1935 into Article 200, is a clear indication of their intent to make the ordinary exercise of powers of the Governor under Article 200 subject to the aid and advice of the Council of Ministers.

Giving Governor absolute discretion would turn him into a "super-constitutional" figure

The Court observed that if it is interpreted that the Governor has absolute discretion regarding giving assent to bills, it will turn him into a "super-constitutional figure". This could mean that he could "collude with the Union Government" and kill any legislation passed by the State Assembly.

"The Governor under the constitutional scheme is no longer envisaged as the Governor under the GoI Act, 1935, having the ultimate power to veto any legislation and subvert the collective will of the people being expressed through the legislature. If the power to withhold assent to bills or to reserve them for the consideration of the President is construed as falling within the exclusive discretionary domain of the Governor, who would be free to decide a course of action notwithstanding the aid and advice of the Council of Ministers, it would have the potential of turning him into a superconstitutional figure, having the power to bring to a complete halt, the operation of the legislative machinery in the State. The Governor cannot be vested with such a power, the exercise of which would enable him to collude with the Union Cabinet and ensure the death of any and all legislation initiated by the State merely by reserving it for the consideration of the President, who under Article 201 is not bound to give assent to any legislation reserved for his consideration."

Consequently, a bench of Justices J.B. Pardiwala and R. Mahadevan stated that the decision of the two-judge bench in 2019 B.K. Pavitra judgment observing that the Governor has discretion when reserving the Bill for the President is not in consonance with the 1974 constitution bench judgment in Shamsher Singh.

"We find ourselves in disagreement with the view taken in B.K. Pavitra (supra) that the Constitution confers a discretion upon the Governor insofar as the reservation of bills for the consideration of the President is concerned. We say so because the removal of the expression “in his discretion” from Section 75 of the GoI Act, 1935 when it was being adapted as Article 200 of the Constitution, clearly indicates that any discretion which was available to the Governor under the GoI Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution The views expressed by the members of the Constituent Assembly, which are recorded in the debates that took place on Article 175 of the Draft Constitution, also indicate the same. We are also of the view that the same is also in alignment with the fundamental tenets of responsible government in a parliamentary democracy."

In Shamsher Singh, as referred by this Court, it was observed: "Under the cabinet system of Government, the Governor is the constitutional or formal head of the State and exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion."

Relying on this paragraph, the Court reiterated that the Governor exercises all his powers conferred to him under the Constitution on the aid and advice of the Council of Ministers.

Justice Pardiwala, who authored the judgment, added that the only exception to this is observed in the second proviso to Article 200 which says that the Governor 'shall' not give assent but 'shall' reserve it for the President any Bill which if it became 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.

Thus, it is aptly clear from the dictum in Shamsher Singh that the seven-judge bench took into consideration the scheme of Article 200 observed that the second proviso to Article 200 is the only instance where the Governor has been entrusted with the power to act on his own discretion. Subsequent constitution bench decisions in Madhya Pradesh Special Police Establishment and Nabam Rebia clarify that besides the instances where the Governor has been expressly conferred with discretion powers, there be still be exceptional circumstances wherein it would be legitimate for the Governor to act in his own discretion. However, the general rule remains the Governor acts upon the aid and advice of the State Council of Ministers. Article 200 of the Constitution, the Governor does not posses any discretion in his function and has to mandatorily abide by the advice tendered to him by the Council of Ministers. 

Further, the Court added that the exception to this rule is also applicable in cases where the Bill is covered under Articles 31(A), 31(C), 254(2), 288(2), 360(4)(a)(ii) etc wherein assent of the President is a condition precedent.

Or where the Bill which covers a situation described in M.P. Special Police case as "where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice.”

Senior Advocates Mukul Rohatgi, Rakesh Dwivedi, and P Wilson appeared for the State. Attorney General R Venktaramani appeared for the Governor.

Other reports about the judgment can be read here.