Exploring The Role Of Governors: Navigating The Trend Of State Governors Facing Litigation Over Withholding Assent Over A Bill
Deepti Yadav
7 May 2024 1:28 PM IST
The Governor is an unelected Head of the State and cannot use his constitutional powers to thwart the normal course of lawmaking by the State. Governors stand as pivotal figures, entrusted with crucial responsibilities that shape the legislative framework. Their role transcends mere ceremonial duties, encompassing significant powers, notably the authority to grant or deny assent to bills...
The Governor is an unelected Head of the State and cannot use his constitutional powers to thwart the normal course of lawmaking by the State. Governors stand as pivotal figures, entrusted with crucial responsibilities that shape the legislative framework. Their role transcends mere ceremonial duties, encompassing significant powers, notably the authority to grant or deny assent to bills passed by state legislatures. In the recent past, prolonged delay in assenting to Bills has become a source of confrontation between Opposition-ruled States and their governors — leading many State governments to approach the Supreme Court alleging that such conduct is hindering day-to-day governance. This emerging pattern underscores a shifting dynamic between governors and state governments, casting a spotlight on the intricate interplay between executive discretion and legislative prerogatives. As this trend gains traction, it raises pertinent questions about the balance of power within state governance structures and the implications for democratic processes. Understanding these evolving dynamics is crucial for navigating the complexities of modern state governance and fostering a robust framework for effective decision-making. In this article, we delve into the significance of governors' roles and examine the recent surge in litigation over assent refusals, and courts approach.
Understanding the Role of Governors:
Underlining that the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers[1].
Article 200 of the Constitution postulates that when a Bill has been passed by the Legislative Assembly of a State or, in the case of a bicameral legislature, by both Houses, it shall be presented to the Governor. The Governor has three options available when a Bill which has been passed by the State Legislature is presented for assent. The Governor “shall declare” (i) either that he assents to the Bill; or (ii) that he withholds assent or (iii) that he reserves the Bill for the consideration of the President.
If the Governor opts to withhold assent, they are required to return the Bill, urging the Assembly to review the legislation or specified provisions or propose amendments. Nevertheless, the Assembly is not obliged to accept these suggestions and may pass the Bill again unchanged. In this instance, the Governor is constitutionally mandated to grant assent, relinquishing the discretion to refer it to the President. This provision underscores the legislative authority held by elected representatives of the people over the constitutional head of the State in the legislative process. A Bill can be held for the President's consideration if the Governor deems it might jeopardize the position of the relevant High Court by diminishing its powers.
Supreme court in the case of State of Punjab v. Principal Secretary to the Governor of Punjab and Another[2] held that the first proviso to Article 200 stipulates that the Governor may “as soon as possible” return the Bill without any undue delay.
There's no set timeframe for Governors to decide on a Bill, leaving room for misuse known as a 'pocket veto'. Similarly, the President isn't bound by a specific timeline to decide on a Bill's fate. However, if the President sends a Bill back to the State Assembly, there's a six-month window for reconsideration.
To curb the misuse of such governor mandate, several states have filed a petition before the Supreme Court arguing that a time limit should be fixed by which governors must assent or return the bill for reconsideration.
Emerging Trends: Governors Facing Litigation over Assent Refusals:
Recently, the state of Tamil Nadu has accused the Governor R.N. Ravi of assuming the role of a 'political adversary' and causing a constitutional impasse by delaying action on Bills for an extended period. The state's appeal seeks the intervention of the Supreme Court to establish a specific timeframe within which Governors must either approve or return a Bill.
The state of Kerala has filed two distinct petitions against Governor Arif Mohammed Khan, alleging his attempts to undermine the rights of the state's citizens by indefinitely withholding essential Bills, particularly those aimed at addressing post-COVID public health issues.
Similarly, a group of academics, comprising former Vice Chancellors, recently urged the West Bengal government to seek intervention from the Supreme Court regarding Bills awaiting approval from the Governor. This delay has halted the progress of search and selection committees for 31 universities in the state.
In the wake of these rifts, it is necessary to discuss the role the assent of a Governor plays; the extent of autonomy enjoyed by the constitutional authority, and whether his actions can be subjected to judicial scrutiny.
Judicial Approach
Now the moot question arises as to whether the governor can exercise its discretion to withhold assent on certain bills. Supreme Court tried to answer this question in several cases. However, there lacks an authoritative pronouncement in this regard.
The Supreme Court in Samsher Singh v. State of Punjab[3], said that Federalism is a part of the basic structure of the Constitution and Allowing unchecked discretion in areas beyond the Governor's mandate risks undermining the functioning of democratically elected State Governments. Through a series of rulings, the Supreme Court has underscored the significance of institutions and their role in fostering democratic processes. Federalism and democracy, both essential components of the Constitution's core, are inherently interconnected. Any erosion of one jeopardizes the other. The harmonization of democracy and federalism serves as the cornerstone for realizing the fundamental freedoms and aspirations of our citizens.
In Purushothaman Nambudiri v State of Kerala (1962)[4], The Supreme Court ruled that the absence of a specified timeframe under Article 200 for the Governor to provide assent indicates that the framers of the Constitution did not intend for Bills awaiting assent to lapse upon the dissolution of the House.
Similarly, in Nabam Rebia and Bamang Felix v. Dy. Speaker (2016)[5], The Court emphasized that the Governor's discretion is limited to deciding whether a Bill should be reserved for the President's consideration. Furthermore, it clarified that Article 163(2) must be interpreted in conjunction with Article 163(1), indicating that only matters explicitly permitted for autonomous action by the Governor under the Constitution cannot be challenged in court.
Recently Supreme Court in the case of State of Telangana v. Secretary to the Governor for the State of Telangana & Anr[6] observed that Governors must return bills as soon as possible. Court reasoned that the first proviso to Article 200 states that the Governor may “as soon as possible after the presentation” of the Bill for assent, return the Bill for reconsideration to the House or Houses of the State Legislature. The expression “as soon as possible” must be kept in mind as it has great constitutional importance.
In B.K. Pavitra v. Union of India[7] where the supreme court held that the Governor has power to withhold assent to a Bill, however the judgment left open the question of what will be the next course of action of the governor. (Retd.) Justice Nariman in one of his lectures called for reconsideration of this judgment and said that this clarification by the Court is important because Article 200 of the Constitution does not expressly provide for the next course of action after a Governor withholds assent for a Bill. There was an ambiguity as to whether the Governor was bound to return the bill to the assembly if he declared that he is withholding assent. Similar circumstances took place in the state of Tamil Nadu, where the Governor withheld his assent over certain bills. The Governor did not return those bills to the House, yet, the assembly readopted the very same bills.
Supreme Court's judgment in The State Of Punjab v Principal Secretary To The Governor Of Punjab And Anr. W.P.(C) No. 1224/2023 [8] has cleared most of the doubts however the court did not specify the time frame. In this case, the State of Punjab contended that seven of its Bills have been pending consideration by the Governor since June, thereby bringing the administration to a halt. Supreme Court held that the substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such circumstances, the Governor is required by law to promptly inform the State Legislature about the need to reconsider the Bill, as given in the first proviso. The phrase "as soon as possible" carries particular importance, emphasizing the urgency of the matter. It conveys a constitutional imperative of expedition. Failure to take a decision and retain a duly passed Bill for indefinite periods contradicts the meaning conveyed by that phrase. Constitutional language is not surplusage. This clarification from the Court holds significance as Article 200 of the Constitution does not explicitly outline the subsequent steps to be taken if a Governor withholds assent for a Bill.
The judgment stated, if the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, The Governor, being the unelected Head of State, could virtually veto the functioning of the legislative branch, which is comprised of duly elected representatives, by merely stating that assent is withheld, without any additional recourse available. Such an action would go against the core principles of a constitutional democracy that follows a Parliamentary system of governance. Therefore, when the Governor chooses to withhold assent under the main part of Article 200, the appropriate course of action to be taken is outlined in the first proviso.
The practice of Governors withholding key Bills, particularly in Opposition-led States, is a troubling trend that undermines the democratic process and stifles the will of the people. the recommendations put forth by the National Commission to Review the Working of the Constitution (NCRWC) regarding the time limit for Governors to decide on Bills are not just prudent but essential for upholding the principles of democracy and the rule of law. The role of the Governor, as a nominal head of the State, demands that executive power be exercised in accordance with the advice of the Council of Ministers, ensuring the smooth functioning of the elected government within constitutional bounds.
The undue delay in granting administrative sanction not only violates the rule of law. This partisan obstructionism not only hampers governance but also erodes public trust in the institutions meant to uphold the rule of law. Urging the Supreme Court to establish a clear time frame within which Governors must act on Bills is imperative to safeguarding the integrity of our democratic system. It's time to ensure that Governors fulfill their constitutional duty promptly and impartially, without succumbing to political pressures or agendas.
Author: Deepti Yadav. Views are personal.
