Assent To Bills: Problems And Justiciability

The problem of delay in according assent to Bills passed by the legislature is a burning issue that confronts our polity and quite often is an affront to our democracy and its fundamentals. Just a couple of days ago, the Supreme Court had to deal with a writ petition challenging the delay in assenting to a Bill by the Governor of Telangana- W.P. (C) No.333 of 2023. The Court disposed of the petition on 24^th April, 2023 stating that the Governors must assent or return the Bills as soon as possible. It was observed: “We are not entering upon the merits of the issues raised in the petition at this stage leaving the question of law open… The first proviso to Art 200 states that the Governor must ‘as soon as possible’ after the presentation of the Bill for assent return the Bill which is not a money bill together with a message for reconsideration. … The expression ‘as soon as possible’ has a significant constitutional intent and it must be borne in mind.”

Against this backdrop and in the light of our experience of working the Constitution, a look at the whole concept and process is quite timely and appropriate.

In our constitutional scheme assent by the President or the Governor, as the case may be, is an essential pre-requisite for any Bill to become law. The policies and programmes of a democratically elected Government find expression in legislation which is brought to fruition only on receiving assent. Without assent the Bill passed by the legislature becomes a sonnet writ on water and the Government’s programmes remain illusory.

In all constitutional democracies where assent by the Head of State is required for any legislative measure passed by the competent legislature to become law, such assent is almost a matter of course and the exercise of the power is hedged in by express limitations or conventions and the power is not intended to be exercised and is not exercised to undermine democracy or defeat or undo legislation made by democratically elected representatives.

It has been rightly said that ‘in the application of the Constitution our contemplation cannot only be of what has been but of what may be.’ Time works changes and brings into existence new conditions. The President or the Governor withholding or delaying assent or the Governor reserving a Bill for the consideration of the President when there is no such constitutional requirement results in holding up a legislation validly enacted. Such instances are not unknown. They are not only undemocratic but also anti-democratic. The interests of the State may be jeopardised. Centre- State relations are sometimes adversely affected. The federal principle which is one of the pillars of our constitutional polity is also hit. The constitutional regime and ethos suffer a dent.

The need and the desirability to examine how consistent such practices are with democratic values and constitutional philosophy and to have a relook at the issue of justiciability of refusal of assent and the scope of judicial review in this area has prompted the writing of this piece. It is necessary to shield ourselves from the glare of immediacy in order to take an objective view and understand and get a clear picture of the constitutional position.

A myth has somehow developed that assent is discretionary and further that it is not justiciable. This is neither constitutionally correct nor true. There is no discretion to refuse or delay assent. It is the constitutional duty of the President/Governor to declare assent expeditiously to every legislation validly passed. There is nothing in principle or authority which supports the view that refusal of assent is not justiciable. Indeed it is otherwise. Like every constitutional function it is amenable to judicial review. Any other view would be injurious to and subversive of the federal, democratic ethos of the Constitution and opposed to the constitutional structure and culture.

Head of State- part of legislature- Assent necessary to make law

The President and the Governor are part of the legislature- vide Arts 79 and 168. Assent is part of the legislative procedure prescribed in Arts 107-111 and Arts 196-201. The assent of the Head of State is necessary for a Bill to become an Act in most countries.

Comparative Position- Other Constitutions

UK

In UK royal assent is necessary for enactment of law. This has been the position since the beginning of Parliament. The Crown is part of Parliament. The law is enacted by the Crown in Parliament which consists of the Monarch and the two Houses. In earlier times the Monarch used to come to Parliament to announce the assent to a Bill which was done in the Chamber of the House of Lords with the Commons repairing to the Bar of the Lords. Now the assent is notified to each House separately by its Presiding Officer. While in theory assenting to a Bill or withholding assent is the prerogative of the Crown, in effect that power has become obsolete for over 300 years. With the development of the Cabinet system the Crown acts on the advice of the Ministers. Royal assent is now given as a matter of course to a Bill passed by both Houses. There has been no veto since 1707 during the reign of Queen Anne. “To refuse assent would now be unconstitutional.” (Hood Phillips) “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional.” (S.A. deSmith)

Federal legislation

USA

In the USA a Bill passed by the Congress is required to be presented to the President for his approval. If the President approves he signs the Bill and then it becomes law. If not, he may within 10 days return it with his objections to the House in which it originated. Each House will then reconsider it and if it is passed in each House by two thirds of the members present, the Bill will become law, notwithstanding the absence of the President’s signature. If the President neither signs nor returns, it then becomes law even without his signature when the ten day time limit expires. If, however, Congress adjourns before the expiry of the ten day limit and the President does not sign it, the Bill fails to become law.{Section 7(2) of Art I -US Constitution}

Canada

In Canada a Bill passed by both Houses of Parliament is to be presented to the Governor General (vide Sections 55-57, British North America Act, 1867 now known as the Constitution Act,1867) who may assent to it or reserve it for the consideration of the Crown. If a Bill is so reserved it shall not have force of law unless the Crown signifies its assent within two years from the date of presentation. Even where the Governor General has assented, the Crown may within two years of the receipt of a copy of the Bill, veto or disallow the Bill in which case the Act shall be annulled from the date of such disallowance. However, since 1929 it is settled that the Crown will not exercise this power.

Some Other Countries

The position is the same in Australia. (See: Sections 58-60 of the Commonwealth of Australia Constitution Act, 1901).

In New Zealand also assent of the Head of State is required for a Bill to become law.

Under the Constitution of Eire, 1937 the President has to sign and promulgate as law every Bill passed by both the Houses {vide Art 13(3)}. He has no choice in the matter.

Under the French Constitution, 1958 the President has to sign and promulgate all laws passed by Parliament (Art 10), though he may seek reconsideration by Parliament.

The Japanese Emperor is not a part of the Legislature and he has no veto power against legislation-vide Art 41 of the Japanese Constitution, 1946.

Provincial legislation

The question of reserving provincial legislation for consideration of the Head of State does not arise in unitary States like UK or in strictly federal Constitutions like USA and Australia.

Australia

However, under the Australian States Constitution Act, 1907, the Governor of a State is required to reserve for royal assent certain legislative measures like those which alter the constitution of a State Legislature. But significantly the Australian States have direct communication with the Crown and the Crown’s powers regarding such Bills are exercised on the advice of the State Ministry and not the Dominion Ministry. Now under the Australia Act,1986 State laws are not subject to disallowance or withholding assent or reserving for royal assent(vide Sections 8,9).

Canada

In Canada while a provincial legislation may be reserved by the Governor for the Governor General’s assent (Sections 55-57 modified by Section 90 of the Constitution Act) convention has developed that legislation within the competence of the legislature will not be disallowed. (See Kennedy’s Essays in Constitutional Law pp 44-57)

Constitutional position in India

When a Bill passed by Parliament is presented to the President, Art 111 of the Constitution governs the matter. The President shall declare his assent or withhold his assent to the Bill; and in the case of non-Money Bills he may, as soon as possible after the Bill is presented to him, send the Bill back to Parliament with a message and suggestions. Parliament should then reconsider the Bill and when on such reconsideration it is passed with or without amendment and again presented to the President then he has to declare his assent. Thus when a Bill is presented for a second time the President is bound to assent.

In the case of laws made by the States, when a Bill passed by the State Legislature is presented to the Governor, Art 200 comes into play. The Governor shall declare that he assents or withholds his assent. In the case of non-Money Bills, the Governor, like the President, may, as soon as possible after the Bill is presented to him, send the Bill back to the Legislature with a message for reconsideration. If the Bill is, on such reconsideration, again passed by the Legislature with or without amendment and presented to the Governor he has to declare his assent. Thus when a Bill is presented to the Governor for a second time he is bound to assent. Besides the three courses of action as stated above which the Governor may adopt under Art 200, he may reserve a Bill for the consideration of the President. It is within his authority to do so. In case a Bill derogates from the powers of the High Court, the Governor shall not assent but reserve it for the President’s consideration.

When a Bill is reserved by the Governor for the consideration of the President, Art 201 springs into action. Art 201 lays down that when a Bill is reserved for the President’s consideration, he may declare his assent or withhold it or in case of non-Money Bills he may direct the Governor to send back the Bill to the Legislature with a message to reconsider it. The Legislature shall within six months of receipt of such message reconsider the Bill and when it is passed again with or without the amendments suggested it shall be presented to the President for his consideration. The Constitution is silent as to the course of action that the President should then adopt.

Thus in India the position is that in the case of Union legislation the President (Art 111) and in the case of State legislation the Governor (Art 200) cannot withhold assent when a Bill passed after reconsideration by the legislature is presented for the second time. Assent is notified to Parliament by tabling the assented Bills. On the opening day of a session and thereafter on every Monday the Secretary General reports to the House all Bills assented to by the President since the last report.

The grey area appears to be what matters the Governor can reserve for the President’s consideration and what happens when a State Bill returned by the President is reconsidered and passed for a second time and again presented to the President (Art 201). The Constitution is silent on these aspects. But sometimes even the silences of the Constitution are eloquent. Can the President/Governor stifle legislation validly passed by the legislature? While prima facie there appears to be some discretion, is it really so? The apparent areas of discretion may be when the President or the Governor withholds assent or the Governor reserves a Bill for the President’s consideration and the action of the President when a State Bill is presented to him after it is reconsidered and passed a second time.

While prima facie there may appear to be some discretion there is really none as is evident from the Constituent Assembly Debates, the pronouncements of the Supreme Court and the constitutional conventions in that behalf .

Constitutions are best worked, apart from express provisions, on the basis of practices and conventions that are evolved and which are quite significant. Constitutional conventions are part of constitutional law. Further there is a moral dimension to every major constitutional issue; the language of the text is not necessarily a controlling factor. Convention has been developed in all countries that assent is never intended to, designed or exercised to defeat or undo or delay legislation.

Major premise

The basic major premise of the Constitution is that what obtains is limited government. Powers are distributed among the different wings of the State and between the Centre and the States.

The Constitution envisages not only a democracy of men but also of institutions. In that sense no institution, wing or office is supreme or conferred with absolute authority or unlimited power. All are creatures of the Constitution subject to constitutional limitations and should function as such. The President and the Governors too are expected to act in consonance with the spirit and ethos of constitutionalism.

Further, as has been aptly observed constitutional interpretation ‘must be aglow with the insightful observations of Chief Justice Marshall’: “We must never forget that it is a Constitution which we are expounding, a Constitution intended to endure for ages, and consequently to be adapted to the various crises of human affairs. Nor did they imagine that it was to be so strictly interpreted that amendments and radical revisions would be constantly required to keep Government functioning smoothly.”{McCulloch v. Maryland (1819) 4 Wh.316 (415)}

Exercise of power by President/ Governor in general

The constitutional position regarding exercise of powers by the President and the Governor is settled and clear. They have to exercise their powers and discharge their functions including in the matter of assent to Bills on the basis of Ministerial advice. It is now well established that the position of the President and the Governor is akin to that of the constitutional monarch in Britain. He is generally bound by the advice of his ministers except where it is otherwise prescribed constitutionally. He can do nothing contrary to their advice nor can he do anything without their advice. Arts 74 and 163 deal with the functioning of the President and the Governor respectively. The general position is clear.

Moving the Draft Constitution in the Constituent Assembly on 4.11.1948, Dr. Ambedkar said: “There is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this functionary reminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of Government prevalent in America and the form of Government proposed under the Draft Constitution. The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system. The two are fundamentally different.... Under the Draft Constitution, the President occupies the same position as the King under the English Constitution. He is the Head of the State but not of the Executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.... The President of the United States is not bound to accept any advice tendered to him by any of his Secretaries (who are in charge of different departments). The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice....” (CAD Vol.VII, p. 3 -quoted in Samsher Singh’s case (1974) 2 SCC 831)

In the debate regarding Draft Art 61 which is Art 74 (on 30.12.1948) it was stated that these articles “should not be interpreted literally because they embody conventions of the Cabinet system of government evolved in Great Britain as a result of a long struggle between the King and Parliament. At every stage of the struggle the King yielded some power, but was anxious to preserve his prestige. Therefore, at the end of the struggle, the King gave up all his power but preserved all his forms. Therefore, it is said here that there shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the President in the exercise of his functions. That does not mean, that normally, the function of the Prime Minister is to aid or advise the President in the exercise of his functions. In fact, the position is altogether opposite or the reverse. It is the Prime Minister’s business with the support of the Council of Ministers to rule the country and the President may be permitted now and then to aid and advise the Council of Ministers. Therefore, we should look at the substance and not at the mere phraseology which is the result of conventions.” (CAD Vol. VII p. 1155)

“There is no case which can arise where the President would be called upon to discharge his functions without the advice of the Prime Minister or his Cabinet...Under a Parliamentary system of Government there are only two prerogatives which the King or Head of State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament....The position of Governor is exactly the same as the position of the President...” (Dr. Ambedkar on 30.12.1948 CAD Vol.VII p. 1158)

Art 163 makes a slight difference in the position of the Governor, viz., that he is not bound by the advice of the Ministers in matters where he is by or under the Constitution to act in his discretion. The discretionary power of the Governor is restricted by the express language of Art 163 which does not confer on the Governor a general discretionary power to act against or without the advice of the Council of Ministers. The exposition in the Constituent Assembly Debates is clear. Speaking on Draft Article 143 which is Art 163, Sir Alladi Krishnaswami Ayyar said in the first place the general principle is laid down in Art 143, namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his Ministers. Certain specific functions are to be exercised in his discretion as expressly provided in some articles.

As Dr. Ambedkar stated, “The article will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.” (CAD Vol VIII page 501, on 01.06.1949). The functions which are specifically required by the Constitution to be exercised by the Governor in his discretion are specified in Arts.239 (2), 371 A (2)(b),(d) and (f); and Para 9(2) of the 6^th Schedule.

The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Art 163(2), for, if Governors have a discretion in all matters under Art 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that President/Governor has general discretionary power to act against ministerial advice. (H.M. Seervai Constitutional Law of India 4^th Ed. p. 2037). The area of discretion is clearly defined and confined.

The only functions which the Head of State can, as per settled constitutional law and conventions, exercise in his discretion are: appointment of the Prime Minister/Chief Minister; dismissal of the Government when it has lost its majority in the House but refuses to quit; dissolution of the Lower House of the Legislature; granting sanction to prosecute a Minister; and in the case of a Governor making a report under Art 356 regarding failure of the constitutional machinery in the State; apart from those expressly conferred by the Constitution like Arts 103/192. The function of granting assent is not one such to be exercised dehors the advice of the Ministers.

This does not reduce the Head of State to a mere figurehead or rubber stamp. He will still have the ‘right to be consulted, the right to encourage and the right to warn’ (Bagehot- The English Constitution p. 111) and ‘the right to offer on his own initiative suggestions and advice to the Ministers even where he is obliged in the last resort to accept the formal advice tendered’. (de Smith & Brazier- Constitutional & Administrative Law p 114).

Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry’s first thoughts. He can state all his objections to any proposal and ask his Ministers, if necessary, to reconsider the matter. It is only in the last resort that he must accept their final advice (Sir B.N. Rau).

This principle and the right of the Head of State to influence his Council of Ministers is embodied in Arts 74(1) read with 78 and 163(1) read with 167.

The purport of all this is clear from a passage in the Memorandum submitted by Prime Minister Asquith to King George V in 1913 and expressed tersely and precisely “.......a constitutional monarch in this country is entitled and bound to give his Ministers all relevant information which comes to him; to point out objections which seem to him valid against the course which they advise; to suggest, if he thinks fit, an alternative policy. Such instructions are always received by Ministers with the utmost respect and considered with more respect and deference than if they proceeded from any other quarters. But, in the end, the Sovereign always acts upon the advice which Ministers after full deliberation and (if need be) reconsideration, feel it their duty to offer. They give that advice well knowing that they can, and probably will, be called upon to account for it by Parliament.” This has been quoted in the Constituent Assembly Debates on 2.6.1949 (at page 542 of Vol VIII).

These conventions have been adverted to, reiterated and accepted by the Supreme Court as part of constitutional law and are hence legally enforceable. Reference may be made to some of the decisions- S.C. Advocates-on-Record Association v. Union of India (II Judges Case) (AIR 1994 SC 268); S.R.Bommai v. Union of India (AIR 1994 SC 1918).

It is also relevant to refer to the 20^th report of the Governors’ Committee. “Even in the sphere where the Governor is bound to act on the advice of his Council of Ministers, it does not necessarily mean the immediate and automatic acceptance by him of such advice. In any relationship between the Governor and his Council of Ministers, the process of mutual discussion is implicit, and the Governor will not be committing any impropriety if he states all his objections to any proposed course of action and asks the Ministry to reconsider the matter. In the last resort, he is bound to accept its final advice, but he has a duty, whenever necessary, to advise the Ministry if he thinks that the Ministry is taking an erroneous step and to suggest to it to reconsider the proposed course of action. In the process of advice and consent, there is ample room for exchange of views between the Governor and Council of Ministers even though he is bound to accept its advice.”

As Seervai points out, “it is enough to say that Samsher Singh’s case (AIR 1974 SC 2192) has finally established, it is submitted rightly, that the President is the constitutional head of government obliged to act on the advice of his Council of Ministers.” (H.M.Seervai: Constitutional Law of India 4^th Ed. p 2035).

Samsher Singh was referred to a larger Bench to delineate the constitutional position of the President/Governor. It was necessitated by a couple of earlier rulings which really represented a drift and not the trend of judicial opinion in that behalf. The issue was whether the constitutional requirement of the satisfaction of the President/Governor means his personal satisfaction. The Court unequivocally reiterated the settled legal position that the President/Governor is only the constitutional head, the real power being vested in the Council of Ministers on whose aid and advice the President/Governor exercises his powers and functions. The satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the cabinet system of government, that is, the satisfaction of his Council of Ministers. In Constitutional Law, the ‘functions’ of the President and Governor and the ‘business’ of Government belong to the Ministers and not to the Head of State, that ‘aid and advice’ of Ministers are terms of art which in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the advisor decides in his own authority and not subject to the power of President to accept or reject such action or decision, except , in the case of Governors, to the limited extent that Art 163 permits and his discretion, remote controlled by the Centre has play.

As Justice Krishna Iyer put it in his inimitable style in Samsher Singh v. State of Punjab (AIR 1974 SC 2192), “The omnipotence of the President and of the Governor at the State level is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power and functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basis of our political architecture”. This underscores the ideas of representation and responsibility, the twin attributes of a Parliamentary system.

Exercise of Power by President/Governor Re: Assent

It is clear from the constitutional position of the President/Governor that their powers have to be exercised in accordance with ministerial advice. This holds good even in the matter of assent to Bills. The Constituent Assembly Debates and the judgements underscore this position. As stated, the President has no discretion except in the matter of appointment of the Prime Minister and dissolution of Parliament. Art 111 or 201 is not an exception, nor is Art 200. That power is to be exercised on the advice of the Council of Ministers. This has been explicitly laid down in Samsher Singh. The discretionary power of the Governor is defined by Art 163 itself. There is no general discretionary power. The power of assent is not one of the functions which the Governor is by or under the Constitution required to exercise in his discretion. Granting assent is not a discretion. It is the constitutional duty and obligation of the Head of State. Unfortunately, a myth has been created and the duty has been converted into a perceived discretion. It is significant that unlike the corresponding provision – Sec 75 of the Government of India Act, 1935, the words ‘in his discretion’ have been omitted in Art 200. One of the situations where the Governor can act in his discretion is the second proviso to Art 200- reserving for the consideration of the President, a Bill, which in the opinion of the Governor would derogate from the powers of the High Court.

In the debate on Draft Article 175 which is Art 200, it was stated by Dr. Ambedkar that “the old proviso contained three important provisions. The first was that it conferred power on the Governor to return a Bill before assent to the Legislature and recommend certain specific points for consideration. The proviso as it stood left the matter of returning the Bill to the discretion of himself..... It was felt then that in a responsible Government there can be no room for Governor acting on discretion. Therefore, the new proviso deletes the words ‘in his discretion’.” (14.6.1949 Vol IX CAD p 41).

Participating in the debate Sri T.T.Krishnamachari said “I would ask him to remember one particular point to which Dr.Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The Governor is no longer vested with any discretion. If it happens that as per amendment no. 17, the Governor sends a Bill back for further consideration he does so expressly on the advice of his Council of Ministers. The provision has merely been made to be used if an occasion arises when the formalities envisaged in Art 172 (present Art 197) which has already been passed do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the Governor to hold up the further proceedings of the Bill and remit it to the Lower House with his message. If my Hon. Friend understands that the Governor cannot act on his own, he can act only on the advice of the Ministry then the whole picture will fall clearly in its proper place before him. It may happen that the whole procedure envisaged in Art 172 also goes through and then again something might have to be done in the manner laid down by the particular proviso but it is perhaps unlikely. It is a saving clause and vests power in the hands of the Ministry to remedy a hasty action or meet the popular opinion reflected outside the House, that it does not detract from the power of the lower House or confer any more power on the Governor.” (p 61 of Vol IX CAD). In principle the position would be the same with regard to other provisions of Art 200 as also Arts 201 and 111.

It has been stated by Sir Alladi that “Art 74 is all pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill..... The expression ‘aid and advise’ in Art 74 cannot be construed so as to enable the President to act independently or against the advice of the Cabinet.....” In Art 111 dealing with the power to remit a Bill for reconsideration, “the President is not intended to be a revisional or appellate authority over the Cabinet. A Bill might have been introduced either by a private member or a member of the Cabinet. It may be rushed through in the Parliament. The Cabinet might notice an obvious slip or error after it has passed the Houses. This power vested in the President is as much intended to be exercised on the advice of the Cabinet as any other power.”

All this has been referred to with approval by the Supreme Court in Samsher Singh and it has been stated: We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations...... We have no doubt that deSmith’s statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course-a highly improbable contingency- or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.” It has been expressly stated that the function under Art 200 belongs to the species of power where the Governor is bound to act on the aid and advice of the Council of Ministers. It has also been observed that if this were not the legal position, democracy itself would be in peril. For, the Governor not being answerable to anyone will become all powerful which is an antithesis to the concept of democracy. This has been referred to and followed by a five judge Bench in Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh, (2004) 8 SCC 788.

In a more recent judgement in State of Gujarat v. R.A. Mehta, (2013) 3SCC 1 the Supreme Court following the earlier decisions reiterated the legal position that the Governor is bound to act on the aid and advice of the Council of Ministers unless he acts as a persona designata under a particular statute or acts in his own discretion under the exceptions carved out by the Constitution itself and that Art 200 does not belong to that exception.

Of course, when a Bill is returned, reconsidered and presented to the President (Art 111) or to the Governor (Art 200) he is bound to assent. Apart from the express language of the articles, that position stems from the principle underlying the conventional role and rights of the Head of State- to be consulted, to encourage, to warn, to seek information, to offer suggestions and advice and ultimately be bound by the formal advice tendered to him.

Reserving for President’s consideration

The Constitution provides for a cooperative federalism with a bias in favour of the Centre which within reasonable limits is necessary for the preservation of the indestructible Union of States. There are no guidelines in the matter of exercise of power by the Governor under Art 200. Initially it was thought that Instrument of Instructions would be issued to the Governors for their guidance but later it was felt to be unnecessary.

As Palkhivala said the object of enacting these provisions was perhaps that while the constitutionality of a law can be challenged in a court, its wisdom cannot be and that it would be better to prevent a clearly unconstitutional legislation from becoming law than to have it invalidated by a court later. A Governor is expected to reserve only such Bills for the President’s consideration and assent as are patently unconstitutional or palpably against the national interest. But in practice and reality instances are not wanting where Governors surrender their judgement and act as deferential subordinates of the Union Government in exercising this power. Moreover it is also true that the record of the Centre in enacting legislation is not such as to justify the belief that it is superior to the States in wisdom or in knowledge of constitutional limitations.

The Constitution is silent as to matters and occasions in which the Governor may reserve a Bill for the consideration of the President. While what the Governor may reserve for the President’s consideration appears to be discretionary, as noted earlier the Governor has to act on ministerial advice except where he is required by or under the Constitution to act in his discretion and this is not one of such matters. It may, therefore, be stated that except where the Constitution requires and mandates reservation of a Bill for the President’s consideration and assent, it is only legislation on topics in the Concurrent List that would have to be reserved for the President’s consideration in case of any repugnancy with a Union law. Even this, the Governor would have to do on Ministerial advice. But this may perhaps be one area where there is room for differing views regarding repugnancy and the Governor may think it appropriate to reserve the Bill for the President’s consideration and assent to avoid any problem regarding its validity. Discretion, if any, for the Governor to reserve Bills for the President’s consideration can only be with regard to legislation on topics in List III.

The then Vice President G.S.Pathak had remarked in 1970 that in the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, the Governor must be independent of the Centre as there may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers and in such cases the Governor ignores the Centre’s advice and acts on the advice of his Council of Ministers. (From The White Paper on the Office of the Governor: Constitutional Position and Political Perversion, Government of Karnataka, September 1983, p. 21- Quoted in Rameshwar Prasad v. Union of India AIR 2006 SC 980: (2006) 2 SCC 1).

However, it is not for the Governor to entertain doubts about the constitutionality of the provisions of a Bill and decline to give assent to a Bill or reserve it for the President’s consideration; constitutionality is for the Courts to decide after the Bill becomes law. This would accord with democratic principles and values. Any other interpretation would clothe the Governor with the plenitude of power and discretion even vaster than the President of India or even a President under a Presidential system which is not intended or provided for in the Constitution and would also result in sacrificing many democratic values. Of course, it would be open to the Governor to seek legal advice from the Advocate General or from any other person. It would also be open to him to share and discuss these views with the Ministry. But in the end he is bound to act as per the advice given to him by the Ministry. Moreover, reserving a Bill for the President’s consideration except where it is absolutely called for will also be, in one sense, abdication of his powers and functions by the Governor. The Sarkaria Commission on Centre-State Relations has stated that reserving a Bill for the President’s consideration is intended to subserve the broad purpose of co-operative federalism and it is to be used sparingly and only in proper cases.

Even though ours is not a strictly classical federal constitution, the State legislatures are supreme in their allotted spheres. Hence where Art 254(2) is not attracted, the Governor reserving a Bill for the President’s consideration and the President declining assent would hurt and defeat democratic values and sentiments and the federal principle and would be against the constitutional ethos. To ensure adherence to this settled legal position an appropriate amendment may be brought.

Article 201- President’s discretion

Another slippery area is Art 201- President’s assent to State legislation. The President has to act on the aid and advice of his Council of Ministers. No grounds are indicated in the Constitution upon which the President can refuse assent. There are also no guidelines regarding the consideration which the Union Government applies to examine a Bill reserved for the President’s assent. Thus even in the matter of assent to a State Bill the President is to be guided and bound by the advice of the Union Government. However he is not expected to refuse assent to nullify laws passed by the representative State legislature. Two constitutional principles would then come into play and conflict. If the President, on the advice of the Union Government, refuses assent to a State legislation, his action will not be unconstitutional as he is bound by the advice of the Cabinet; but such action will be detrimental to the interests of federalism and the democratic principle. It will be, therefore, susceptible to scrutiny and correction in judicial review.

It is significant to note that there was virtually no discussion in the Constituent Assembly on draft Art 176 which is the present Art 201. The same was adopted on 1.8.1949 without any discussion. But the trend of discussions and the tenor of the constitutional scheme regarding the powers and functions of the Head of State leave no room for any doubt that legislation brought by the representative legislature should not be nullified by the discretion apparently vested in the Head of State nor is the Union Executive to be construed and enthroned as a super legislature over the State legislature in matters legislative.

The principles of statutory construction when there are obvious drafting errors or omissions are well settled. “Where `Homer in the person of the draftsman (of an Act of Parliament) nodded’ and omitted words from a statute necessary to secure its purpose, those words may, in appropriate circumstances, be read into the statute.... The principle is not limited to the insertion of necessary words. Words may be substituted or omitted as required.” See, Inco Europe Ltd v First Choice Distribution [2000] 1 WLR HL 586(589,592): [2000] 2 All ER 109(115).

An appropriate amendment may be made to make explicit this undoubted legal position.

Time frame for exercise of power- no inaction

The Constitution does not prescribe any time limit for the President or the Governor declaring assent to a Bill or reserving it for the President’s consideration. It would indeed be anomalous and paradoxical if more time is taken by the Head of State to assent to a Bill than for the Legislature to pass it. It is well settled that every State action has to be reasonable. The reasonable exercise of power inheres its exercise within a reasonable time. Where for exercise of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable. Not doing so will be unreasonable. Indeed it may be said that ‘pocket veto’ or ‘cold storaging’ a Bill duly passed and presented for assent is not contemplated in the constitutional scheme. Arts 111/200/201 provide that the President/Governor, as the case may be, shall do one of the things. The provisions lay down that the President/Governor return the Bill for reconsideration, ‘as soon as possible’. The phrase ‘as soon as possible’ is not without significance and indicates that they must act with expedition. Inaction on their part is not envisaged going by the express language of the constitutional provisions. It may be advisable to provide by a suitable amendment for a time frame for exercise of power re: assent.

The time taken for exercising the conventional rights of the President/Governor to offer suggestions and be consulted also has to be reasonable and the time frame fixed for exercising power re: assent will reckon this also. It will be quite a welcome thing for the President/Governor to keep himself acquainted with the legislative business and if felt necessary offer his views and advice even on pending legislation. This is permissible and is in consonance with Arts 78/167 and 86/175. This will be a time saving measure to some extent.

Justiciability of action under Articles 111,200,201

It is now well settled as a constitutional practice and convention that the power of assent should not be used to defeat validly enacted legislation. Constitutional conventions are part of constitutional law. The modern Canadian practice, points out Kennedy, is that legislation which is within the competence of the legislature will not be disallowed. To refuse assent would now be unconstitutional, says Hood Phillips.

In Samsher Singh (1974) 2SCC 831 (at para 154) the Supreme Court quoted with approval from S.A.deSmith, Constitutional and Administrative Law: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nonetheless be unconstitutional.” And it observed that the statement holds good for the President and Governor in India. This was reiterated in MP Special Police Establishment case (2004) 8SCC 788.

The only sequitur is that refusal of assent is justiciable. This is because refusal of assent would be unconstitutional means that such refusal can be judicially scrutinized and so declared by the Court.

In the light of this unequivocal enunciation of the constitutional position, the President or the Governor cannot decline to assent to a legislation validly passed and if he does so, such action is justiciable and can be declared unconstitutional and he be compelled to grant assent. Assent means an expressed agreement of mind to what is proposed. It calls for serious consideration of the relevant material and is not an idle or empty formality. The power to grant assent is not an exercise of the legislative power but is a part of legislative procedure and is not immune from judicial scrutiny. This legal position also flows from the judgements in Basantilal Banarasilal v. Bansilal Dagdulal (AIR 1955 Bom 35); Sowdambigai Motor Service v. State of Tamil Nadu ((1980) 1 MLJ 82); Gram Panchayat of Village Jamalpur v. Malvinder Singh (AIR 1985 SC 1394); Kaiser-i-Hind (P) Ltd v. NTC (AIR 2002 SC 3404).

Madras High Court-Assent held justiciable

The question regarding judicial scrutiny of assent directly arose and the contention was urged and considered in Sowdambigai Motor Service v. State of Tamil Nadu (1980) 1 MLJ 82. A Division Bench of the Madras High Court considered the matter in all its aspects and held that there is nothing in the Constitution which prohibits the Court from going into the validity of the assent. Assent is thus justiciable. On the facts of that case the validity of the assent was upheld.

It was held: It is true that in view of the provisions contained in Art 79 of the Constitution the President is a part of the Parliament of the Union and similarly in view of the provisions contained in Art 168 (1) of the Constitution, the Governor is a part of the State Legislature. But when the President gives assent to a Bill passed by the State Legislature, he is not performing that function as part of that Legislature. It cannot be disputed that giving of assent to a Bill is an act of legislative nature. But it is far different from stating that in view of its legislative nature, the assent is outside the scrutiny of the Court.....When the validity of the assent of the President is questioned on the ground that the President has not applied his mind to the consideration which he should take into account before giving his assent or refusing to give his assent, that is not questioning the proceeding of the State Legislature or Parliament on the ground of any irregularity of procedure. It is one thing to say that the grant of or refusal to grant assent is a legislative process. It is another thing to say that the same is a proceeding in the Legislature/ Parliament... There is no provision in the Constitution or any principle at all which prohibits the Court from going into the validity of the assent of the President.

This equally applies in the case of the Governor. This has been followed by the same High Court in Mangalanayagi Ammal v. The Authorised Officer (1980) 2 MLJ 429.

It is submitted that the view taken by the Madras High Court reflects the correct legal position and is one which promotes the healthy functioning of a federal, democratic polity as envisaged by the Constitution and commends itself.

Malvinder Singh and Kaiser-I-Hind- assent not legislative process- no idle formality- open to judicial review

A major step forward was taken in the Constitution Bench judgement of the Supreme Court in Gram Panchayat of Village Jamalpur v. Malvinder Singh (AIR 1985 SC 1394: (1985) 3 SCC 661. It was laid down therein that consideration of the President and giving his assent is not an idle or empty formality. It requires application of mind. If assent is sought for a particular purpose, say Art 31A- for the law to enjoy immunity from challenge on the ground of violation of Art 14 or 19 – its efficacy would be limited to the said purpose –and will not avail to cure the repugnancy, if any, as envisaged under Art 254(2). It was held that the Act in question did not have the assent under Art 254 (2).

This view has been followed and reiterated by another Constitution Bench in Kaiser-I-Hind (P) Ltd. v. National Textile Corporation (AIR 2002 SC 3404): (2002) 8 SCC 182.The Court held that ‘reserved for consideration’ {in the context of Art. 254 (2)} indicates that there should be active application of mind by the President to the repugnancy pointed out between the proposed State Law and the earlier Central enactment and the necessity of having a different State law. The word ‘assent’ would mean an expressed agreement of mind to what is proposed. This would call for serious consideration of the relevant material. It cannot be an idle formality. The same view was taken by Chagla, CJ in Basantlal Banarasilal v. Bansilal Dagdulal AIR 1955 Bom 35. The Court can call for and examine the files relating to the proposal for obtaining the President’s assent. It was further held in Kaiser-I-Hind that the power to grant assent is not an exercise of legislative power but is a part of legislative procedure and hence the court can examine whether the constitutional procedure before enacting the law has been followed or not. On facts it was held that there was no assent to cure the repugnancy.

What emerges is that the grant of assent is not part of the legislative process immune from judicial scrutiny. Indeed it has been stated that the assent of the President or the Governor is considered to be part of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill cannot be an Act. It is submitted that what flows from all this is that the validity of grant or refusal of assent is justiciable, judicial review is available to test its validity at least on procedural grounds. Therefore, the observation of the Court in Kaiser-i-Hind that in finding out whether assent was given qua repugnancy there is no question of deciding the validity of assent nor is the assent subjected to judicial review, it is not whether assent was rightly or erroneously granted, it is respectfully submitted, is not understandable and is non sequitur. The reasoning and conclusion of the Court is clear and the aforesaid observation flies in the face of such reasoning and conclusion.

While the grant of assent may be interfered with and held to be unavailing on procedural grounds like in Malvinder Singh and Kaiser-i-Hind and not on substantive grounds because that would be interference with the wisdom of the legislature and would really be judicial review of the law even before it is made, refusal to accord assent may be subjected to judicial review on substantive ground.

Judicial review of refusal of assent on substantive grounds- no constitutional heresy.

Against the backdrop of the expanding horizons of Constitutional Law and Administrative Law as also constitutional interpretation and exposition, subjecting withholding assent to judicial review on substantive grounds also is not a heresy.

The principle enunciated by the Supreme Court in B.P.Singhal v. Union of India ((2010) 6 SCC 331) (a Constitution Bench judgement dealing with the power of removal of Governors under Art 156) that a Governor cannot be removed on the ground of his not being in sync with the policies of Union Government or his not subscribing to the ideology of the party in power at the Centre applies with greater vigour in the case of legislation passed by elected representatives and assent cannot be withheld for the reason that the President or the Governor has views and subscribes to ideologies different from those of the Government in power which is in office because of the majority it enjoys in the legislature to which it is responsible and legislation is the result of policy decisions of the Government and debate and discussion in the legislature. Nor can it be for the reason that the Union Government’s views and policies do not match those of the State Government and on that score the Union Government advises the President, who has to act on such advice, not to declare his assent to a State legislation referred to him.

As Justice Holmes said in Missouri vs. Holland (1920) 252 US 416(433) “... The provisions of a Constitution call into life a being, a state of affairs, the development of which could have been at best felt vaguely but could not have been seen completely by the most gifted of its begetters.” In Gompers vs.US (1914) 233 US 604(610) Justice Holmes observed, “The provisions of the Constitution are not mathematical formulas having their essence in their form....their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” It is keeping this in view that the Supreme Court proceeded to examine the matter in Singhal’s case.

It was held that: The Rule of Law and the principle of legality cannot be compromised on grounds of political expediency. The supreme quality of the rule of law is fairness and legal certainty. The principle of legality occupies a central position plan in the Rule of Law. To go by considerations of political expediency would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law comprises a requirement of Government according to law the ethos of which requires the prerogative to be exercised consistently with the basic principles of fairness and certainty.

It is now well settled that no power is inherently unreviewable and in a constitutional democracy wedded to the rule of law unfettered and unreviewable discretion is a contradiction in terms. These statements of Professor H.W.R. Wade have been referred to and endorsed in a number of Supreme Court decisions.

The Supreme Court quoted with approval deSmith-Judicial Review:

“Judicial review has developed to the point where it is possible to say that no power –whether statutory or under the prerogative –is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review.” It was laid down that power cannot be exercised in an arbitrary, capricious, whimsical or unreasonable manner. This is with regard to the exercise of executive power.

Assent to a Bill is not an exercise of legislative power. It is exercise of a power very much like the imposition of President’s rule under Art 356 or the grant of pardon etc. under Arts 72 and 161. It is now well settled that exercise of power under Art 356 or Arts 72 and 161 is amenable to judicial scrutiny and subject to judicial review. The legal position in this behalf is authoritatively laid down and settled. All public power including constitutional power shall never be exercisable arbitrarily or mala fide; so also that the absence of any obligation to convey reasons does not mean that there should not be legitimate or relevant reasons for a decision. All these axioms are valid and well settled in our constitutional order and govern the exercise of all power.

While the President or the Governor may be the sole judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must be found in the Constitution itself. Courts exercise the power of judicial review to ensure that all relevant material is considered before coming to a decision. The Court may interfere if the reasons given, if any, are irrelevant or where the exercise of power is vitiated by self-denial on wrong appreciation of the amplitude of power or where the decision is arbitrary, discriminatory or mala fide. There is no bar to scrutiny of the material on the basis of which the President or the Governor makes the order. The Court can call upon the Union/State to disclose the material on which the requisite satisfaction was formed. There is no bar into the enquiry whether there was any material on the basis of which advice was given by the Cabinet to the President or the Governor and it was relevant and it was such that a reasonable man could come to the conclusion under challenge. Though the sufficiency of the material is not open to question the legitimacy of the inference drawn therefrom is open to judicial review.

This is the position even when the provision conferring power speaks of subjective satisfaction. These considerations should and would apply with greater force in the case of assent. Further, if there be any area of discretion in the matter of assent, no discretion being unfettered and unreviewable, it is justiciable.

Withholding assent- amenable to judicial review

The upshot of all this is that refusal or withholding of assent is justiciable and amenable to judicial review even on substantive grounds. It is immaterial for this purpose whether the power to accord or refuse assent to a Bill or reserve it for the President’s consideration is discretionary or not.

It is now well settled that every action of an authority under a statute (and also the Constitution) has to be reasonable, fair and just and for an action to be considered reasonable, it would have to be within a reasonable time. Delaying or refusing to grant assent to a legislation validly passed by a democratically elected legislature would be vitiated by legal malafides. A constitutional authority cannot do indirectly what it is not permitted to do directly. As the Head of State has to act on the advice of the Council of Ministers in all matters including grant of assent and to refuse assent is unconstitutional, inaction on his part, that is, not granting assent, which achieves the same result, namely, refusal, is a colourable exercise of power which is an anathema to our constitutional scheme. Similarly, the Head of State –the President/Governor who is expected to act expeditiously in the matter of assent cannot keep the Bill pending, wait for a Government which would advise him in the manner he wishes, that is, not to assent and then act on such advice. Such a stratagem would be repugnant to the constitutional scheme and ethos and would indeed be a fraud on the Constitution.

All this underscores the position that assent has to be given as a matter of course. An authority where it fails to exercise power vested in it within a reasonable time can be compelled to do so by a writ of mandamus. Not granting assent to a legislation validly passed by a democratically elected legislature would be vitiated by legal malafides and would be unconstitutional. And granting assent is not really exercising a power, it is performing a duty and fulfilling an obligation. It would be necessary and permissible to compel and secure the performance of the constitutional duty of granting assent by an appropriate writ. As the President and the Governor act on the advice of the Ministry, the Union of India or the State concerned would have to be directed by a writ.

In the light of the judgements noticed above and the trend of constitutional developments and to advance the functioning of constitutional democracy, it is submitted that refusal of assent both by the Governor and by the President, is not immune from judicial scrutiny.

Further as held by the Supreme Court it would indeed be the Court’s obligation to decide whether an authority under the Constitution has acted within the limits of its power or exceeded it, to the Court as to any other branch of Government is committed the conservation and furtherance of constitutional and democratic values, the Court’s task is to identify those values in the constitutional plan and work them into life in the cases which reach the Court; the Court cannot and should not shirk this responsibility because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of the country. cf State of Rajasthan v Union of India [1977] 3 SCC 592; B.P.Singhal v. Union of India [2010] 6 SCC 331

It may be difficult and perhaps ill advised to lay down strict parameters to delineate with sharp edges the contours of judicial review in this area. The intensity of review will depend upon and vary according to the subject and the context. In law, context is everything.

Non-justiciability of assent - not the ratio of earlier judgements.

The passing observation in some earlier judgements that assent is not justiciable is not really the ratio. The question did not directly arise and was not put in issue and decided in those cases. There is no discussion to reach such a conclusion and those casual observations are really obiter. A proper and closer reading of the judgements will indicate that the position is otherwise.

In Purushothaman Nambudiri v. State of Kerala (AIR 1962 SC 694), the Court only observed that the Constitution does not impose any time limit within which the Governor should make any of the declarations ( and similarly in the case of the President also) –para 16. It did not say anything about the means of compelling assent. The observation was in the context and course of deciding whether a Bill lapses with the prorogation or dissolution of the House. That was the issue. The parties did not join issue nor did the Court decide as to whether the Governor (and the President) can be compelled to give assent and, if so, within a time frame. All this was over 60 years ago.

In Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019: (1983) 4 SCC 45 again the justiciability or otherwise of the action under Arts 111, 200, 201 was not the issue. What fell for decision was the power of the State Legislature to levy a particular tax and whether the State law conflicted with any Central law. It was argued that the law was relatable to a subject in the State list and there was no necessity or occasion for the Governor to have referred the Bill to the President for his assent. It has been stated in the judgement that the Governor may, on the advice of the Council of Ministers, reserve a Bill for the President’s consideration and assent. The Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt it necessary to reserve it for the President’s consideration. It was held in that context that the assent of the President is not justiciable and ‘no infirmity arising out of his decision to give such assent could be spelled out.’ These last words contain the key to the decision and indicate that in the circumstances there was no infirmity in giving assent. It would thus be possible to examine if there is any infirmity and decide the matter which indeed is justiciability of assent.

In Bharat Seva Ashram Sangh v. State of Gujarat (AIR 1987 SC 494): (1986) 4 SCC 51 there is only an incidental observation following and quoting Hoechst Pharmaceuticals Ltd. that assent is not justiciable. The question did not at all arise. The Gujarat Ordinance which was later replaced by the Act was promulgated with instructions from the President under Art 213 and it was held that it would prevail in the State.

These decisions do not detract from the tenability and appropriateness of the earlier discussion. The judgement in Samsher Singh {in 1974 by a 7 Judge Bench} has not been noticed in Hoechst Pharmaceuticals {in 1983 by 3 Judges} or in Bharat Seva Ashram {in 1986 by 2 Judges} in which cases it has been casually observed that assent is not justiciable. This is no binding precedent under Art 141. It is indeed per incuriam. In any event the later judgement in MP Special Police Establishment {in 2004 by a 5 Judge Bench} should clinch the issue.

Recommendations of various Commissions

Different recommendations have been made by various Commissions like the Rajammanar Committee, the Sarkaria Commission, the National Commission to Review the Working of the Constitution (NCRWC) and the Punchhi Commission.

While the Rajammanar Committee recommended repeal of the provision enabling the Governor to reserve any Bill for the consideration of the President, the Sarkaria Commission was of the opinion that Article 200 did not invest the Governor with a general discretion in reserving Bills and he should never reserve Bills because personally he does not like the policy embodied in them. It also advocated disposal of the Bills sent for the President’s consideration within four months of their receipt. The Commission noted that in 1952 and 1978 the Home Ministry had issued instructions to other Central Ministries that Bills sent to them for consideration `should be very expeditiously considered’ and returned to it `within a few days’. Granville Austin in his ‘Working a Democratic Constitution’ remarks that in a splendid piece of understatement the Commission commented that these instructions were not being strictly followed. He also states that reservation of Bills became an irritant in Centre-State relations because of the principles involved and the volume of Bills reserved over the years.

The Venkatachaliah Commission in its consultation paper proposed wide amendments including doing away with the power to withhold assent, taking away the power of the Governor to reserve a Bill except where the Constitution requires him to do so; and making the President bound to grant his assent when a Bill is reconsidered and passed by the State Legislature (with or without amendments) after it is returned by the Governor pursuant to the President’s direction. The final recommendations were however confined to prescribing a time limit for actions under Arts. 111, 200, 201. The Punchhi Commission opined that all the proposals in the consultation paper of the NCRWC should be implemented.

None of the Commissions, it may be stated, went into and addressed the core constitutional issue as to whether the President/Governors are invested with any discretion in granting assent. It is reiterated that they have none.

Experience of Working the Constitution

The Constitution makers had left some of the things unsaid in the hope and expectation that healthy conventions would develop and guide the working of the Constitution. The proposal to issue Instrument of Instructions for the exercise of powers and functions by the President and the Governors was later withdrawn. It was said that what had once been thought ‘necessary’ could now ‘be left entirely to convention’. (See CAD Vol X pg 114,115, 269, 270)

Granville Austin in his The Indian Constitution: Cornerstone of a Nation (pp 138,139) observes that one is forced to deduce that the Drafting Committee had come to the conclusion that the written provisions of a non-justiciable Instrument of Instructions and the tacit conventions of cabinet government had equal value: both were legally unenforceable,.....and of the two, conventions were the tidiest and the simplest way of limiting executive authority.

“With the Instruments of Instructions gone, the protection of parliamentary government in India was left to convention, to the vigilance of Parliament, and ultimately, to quote Dicey, ‘to the will of that power which..... is the true political sovereign of the State- the majority of the electors or......the nation.”

However, the ground realities have not matched the ideal. Justice Holmes said in a classic statement that the life of the law has not been logic; it has been experience. Experience has shown that in spite of over seven decades of the working of our Constitution we have not evolved practices and conventions conducive to a healthy federal democratic polity. While in UK the Crown has not exercised the power to veto legislation for over 300 years, the Indian experience especially in the States has been that several legislations have been held up for want of assent for various reasons. It is not uncommon particularly in today’s political scenario with a multiplicity of political parties that different political parties sometimes with opposing ideologies are in power at the Centre and in the States and there is a clash of interests.

Governors

The Governor is the linchpin in the constitutional apparatus of the State as stated by the Sarkaria Commission. The Governor is appointed by the President on the advice of the Union Government. The problem of delaying or not granting assent to State legislation may also be attributed to Governors who have their own political agenda and affiliation and act as mere representatives of the Government at the Centre. While it cannot be universalised, Governors of late have not acquitted themselves well as non partisan statesmen abiding by the Constitution and its ethos. Appointed by the Central Government, many times they act as agents or servile subordinates of the Union Government, or worse, the party in power at the Centre even in the matter of assent. They either delay assent to a Bill or reserve it for the President’s consideration. The office of the Governor was never intended to be a parallel centre of political power. There have been recommendations over and over again in the matter of appointment of Governors and their functioning. As the problem persists the suggestions and recommendations call for reiteration.

It is submitted that more important than who should be a Governor is the question who should not be appointed as a Governor. Those in active politics should, as a rule, not be made Governors, and even more, active politicians of a political party different from the one in power in the State should not be appointed. But as Palkhivala rightly said, “The only satisfactory and lasting solution of the vexed problem is to be found not in the statute book but in the conscience of men in power.” No Constitution or law is self executing. It requires human agency to implement it. To quote Professor Granville Austin in his ‘Working a Democratic Constitution’, “A Constitution however ‘living’ is inert. It does not ‘work’, it is worked-worked by human beings whose conduct it may shape, whose energies it may canalize, but whose character it cannot improve, and whose tasks it cannot perform.”

Need for Amendments

When a Bill duly passed by the legislature is not assented it will mean that the will of the people is neutralised and the policies and programmes of a democratically elected government are put on hold. Law fosters law making opinion and laws are a result of public opinion. It would be wholly improper to defeat or delay implementation of the law.

When Bills are reserved for the President’s consideration, the President has to act on the advice of the Union Government. There are no tests or guidelines as to what are the considerations to apply to examine a Bill reserved for the President’s consideration. Where the Union Government and the State Government are of different political ideologies, many a time, petty political considerations which are reasons other than constitutional or of public interest creep in and vitiate the process of Presidential assent. The assent is delayed or declined for reasons not germane. Such an approach and situation are harmful to democracy and federalism and the larger public good and virtually make a mockery of the Constitution and constitutionalism. Such situations have to be wholly avoided and solutions found therefor.

One typical instance of delay in the President giving assent is the Karnataka Education Bill, 1983 which received the assent of the President on 27^th Oct 1993. It is pertinent to state that a large number of Bills await assent in different States, more so where the Governments were not of the party in power at the Centre. Sometimes similar Bills receive very different treatment. While a Bill from a State where the government is of the same political party as at the Centre is granted assent, a Bill containing identical or similar provisions, but from a State which has a government of a different party is held up without assent, even for years sometimes. There have been occasions where the Governor did not give assent to the Appropriation Bill in respect of supplementary grant and also did not act on the advice of the Cabinet to prorogue the House. All this leads to a constitutional crisis. The need and the desirability for the proposed amendments stem from all this.

In this background one needs to recall with some adaptation what Prof. Atiyah said in another context-that rights and duties, after all, may exist on paper, but those who are unimpressed by pieces of paper may still have a healthy respect for justiciability and enforceability. Hence it will be more appropriate and advisable to have suitable amendments to the relevant provisions. While all this, as discussed and pointed out, is justiciable and can be subjected to scrutiny and correction in judicial review, it will be easier and conducive to the smooth working of the system to have explicit constitutional provisions in place.

Proposed Amendments

The following amendments would be necessary and appropriate-

1. Appropriately amend Arts 111 and 200, may be by adding a proviso- that the power thereunder shall be exercised within three months of the presentation of the Bill to the President/Governor or within 3 months of re-presentation of the Bill on being passed again.
2. If the President/Governor neither assents to nor returns the Bill, then it becomes law (an Act) when the three month period expires and he shall be deemed to have given assent. (This is similar to the provision in the US Constitution).
3. Reservation of a Bill for the President’s consideration except where it is mandatory shall be only in case of legislation on topics in List III.
4. The President shall exercise power under Art 201 within a period of six months of a Bill being reserved for his consideration. In case he neither signs nor directs the Governor to return the Bill, nor refers it for the advisory opinion of the Supreme Court under Art 143, it becomes an Act when the six month period expires and there shall be a deemed assent.
5. Art 201 to be amended to provide that if the State Bill returned by the President is again passed by the State Legislature with or without amendment, it shall be presented again to the President for his consideration and he shall not withhold assent therefrom and that shall be within a period of six months of re-presentation.

This would be in consonance with the letter and spirit of Arts 111 & 200 and would be more conducive to a healthy and vibrant federal, democratic polity.

The Head of State is part of the legislature and assent by the Head of State is necessary as that is part of the legislative procedure in the constitutional scheme. The proposed amendments will not violate the basic structure; they will in fact strengthen the democratic, federal fabric which is an essential feature of the Constitution. They will be in consonance with the clear intendment of the Constitution makers as reflected in their debates.

James Madison, one of the Framers of the American Constitution, had said in The Federalist, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Judicial review is one such auxiliary precaution.

Views are personal.