Governor Can't Veto Legislature By Simply Withholding Assent To Bill; Must Return Bill To Assembly On Withholding Assent : Supreme Court

The Supreme Court has held that if a Governor decides to withhold assent to a Bill, then he has to return the bill to the legislature for reconsideration.

This clarification by the Court is important because Article 200 of the Constitution does not expressly state what should be the next course of action after a Governor withholds assent for a Bill.

According to Article 200, three courses of action are open to the Governor - grant assent, withhold assent or reserve the bill for President's consideration. The proviso to Article 200 says that Governor may return a bill to the assembly along with a message of aspects requiring reconsideration and if the House adopts the bill again, whether with or without amendments, then the Governor will be bound to grant assent.

There was an ambiguity as to whether the Governor is bound to return the bill to the assembly if he is declaring that he is withholding assent. This situation arose recently in Tamil Nadu, where the Governor declared that he was withholding assent over certain bills. The Governor did not return those bills to the house; yet, the assembly readopted the very same bills.

During the hearing of the writ petition filed by the State of Tamil Nadu against the Tamil Nadu Governor's inaction on bills, the Supreme Court had pondered on whether the Governor is bound to return a bill to the house after withholding assent or whether the Governor can simply say that he was withholding assent.

Today, the Supreme Court uploaded its judgment in the case filed by the State of Punjab against the Punjab Governor (which was decided on November 10). In this judgment, the Court has provided an answer to this issue.

"If the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso," observed the judgment delivered by a bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra.

The judgment stated that if such an interpretation is not adopted, then the Governor will be in a position to derail legislative process by simply saying he was withholding the assent.

"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 as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso".

Governor only a symbolic head; real power with elected representatives

In the judgment, the Court reaffirmed that 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.

"The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures."

"In a Parliamentary form of democracy real power vests in the elected representatives of the people. The governments, both in the States and at the Centre consist of members of the State Legislature, and, as the case may be, Parliament. Members of the government in a Cabinet form of government are accountable to and subject to scrutiny by the legislature. The Governor as an appointee of the President is the titular head of State"

In the Punjab matter, the Governor kept the bills pending by doubting the validity of the assembly session in which they were passed. Notably, the Governor did not ‘declare’ in any public notification that he is withholding his assent to the Bills. The Governor advised the Chief Minister to call for a fresh Monsoon/Winter Session and to forward an agenda setting out the specific business to be conducted so as to enable him to grant permission for the summoning of the House to transact the business. 

Aggrieved by the inaction of the Governor, the State of Punjab invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution.

Also from the judgment -Governor Can't Doubt Validity Of Assembly Session : Supreme Court Asks Punjab Governor To Decide On Pending Bills

Case Title: The State Of Punjab v Principal Secretary To The Governor Of Punjab And Anr. W.P.(C) No. 1224/2023

Citation : 2023 LiveLaw (SC) 1008

Click here to read the judgment