Governor Can't 'Pocket-Veto' Bills, Anti-Federal To Return Bills Without Giving Reasons: Tamil Nadu Govt To Supreme Court

The Supreme Court today(January 6) continued hearing two writ petitions filed by the State of Tamil Nadu against Governor Dr. RN Ravi for withholding assent for 12 bills passed by the State assembly. 

Since yesterday, a bench of Justices J.B. Pardiwala and R. Mahadevan has been hearing Senior Advocates Mukul Rohatgi,Abhishek Manu Singhvi  and P Wilson arguing that the Governor's action is unconstitutional and violation of Article 200. To summarise, they have argued that as per Article 200, the Governor has three options, namely: to assent, to reserve the Bill to send it to the President and to withhold the assent.

Reference has been made to the Punjab judgment, passed by a three-judge bench also comprising Justice Pardiwala, wherein it was held that withholding the assent as per the first proviso of Article 200 means sending it back to the State legislature. That is, the Governor cannot exercise 'pocket veto'. 

Today, the hearing began with Justice Pardiwala informing the lawyers about the eight questions framed by the Court :

1. When the legislative assembly has passed a Bill and presented it to the Governor for assent, but the Governor withholds his assent thereto, and as a result therefore, the legislative assembly passes the Bill again, and presents it to Governor, will it be open for him to reserve the Bill for the consideration of President, more particularly when he did not reserve it for the President when it was present at first instance.

2. Whether the discretion of Governor in reserving a Bill for the President is exercisable upon any Bill or is it limited to certain specified categories, particularly where the subject-matter appears to be beyond the competence of the State legislature or repugnant to a Central law. 

3. What considerations weighed with the Governor when he decided to reserve the Bill for consideration by the President?

4. What is the concept of pocket veto?

5. What is the effect of the expression 'shall declare' used in the substantive part of Article 200? Can a time period be read in Article 200 in which it is expected for the Governor to pass a declaration? 

6. How is Article 200 construed in two scenarios- 6.1 Bill is presented for assent and upon consideration, the Governor returns the Bill together with message requesting to reconsider certain aspects of Bill in terms of first proviso to Article 200 and 6.2 a Bill is presented but upon consideration, the Governor declares he withholds assent and therefore, the legislature passes the Bill and presents it again to the Governor for assent-whether the Governor bound to give assent in both scenarios?

7. When the President directs Governor to return the Bill and the Bill is passed and presented again to the President, in what matter President to act?

8. Is it mandatorily required to assent to the Bill when it is placed before him for reconsideration or is there a constitutional scheme in Article 201 and if yes, how is the silence to be construed? 

As for questions seven and eight, all lawyers maintained that it is not necessary to answer that if the Court holds that the reference to the President by the Governor is bad in law and should be set aside.

Pocket veto

On whether the Governor can withhold the assent and not refer it back to the State legislature, Senior Advocate Rakesh Dwivedi argued that the power to withhold simpliciter is not available under Article 200. He termed it as putting the Bills in "cold storage" when the Governor's position is only ornamental, that is, advisory. Singhvi called it a power to "decide not to decide".

To this, Justice Pardiwala concurred and added: "Perhaps, what you just submitted makes sense. His[Governor's] role is advisory because Article 200 says the State legislature can pass [the Bill when referred it back by the Governor] with or without amendment. It is not bound. The primacy lies with the House."

On this issue, it has been submitted that the issue of pocket veto is covered by the Punjab Governor's judgment and nothing further has to be deliberated upon it.

In thiat judgment, it was observed that the Governor is bound to send the Bills back to the State legislature: "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."

At many instances during the hearing, including where this question was deliberated upon, Justice Pardiwala asked when was the Punjab judgment pronounced. When he was informed that the judgment was pronounced on November 10, 2023 and, and that the Tamil Nadu Governor endorsed on November 13, 2023 that he was withholding assent, Justice Pardiwala questioned why the Governor was not guided by this dictum. 

Can Bills be sent to the President on the second round?

The first, second and sixth question was answered together by the petitioners' counsel. To briefly summarise their arguments, it has been submitted that the Governor can only send the Bills to the President at first instance as per Article 200. Singhvi submitted that any interpretation otherwise would amount to giving the Governor "additional powers" than what is envisaged. If he says he is withholding assent, he has to send it to the State legislature for reconsideration.

It was argued that when sending for reconsideration, it must be accompanied by a 'message' which Dwivedi construed as having 1. application of mind as to why he is sending back 2. disclosure of reasons. Adding to this, Singhvi remarked that this would be "most anti-federal" action if the Governor simply sends it back without specifying why he is sending the Bills back to State legislature. 

However, the State legislature, because of its primacy, is not bound to accept the amendments. If the House does not accept the recommendations, and e-enacts the Bill, the Governor is bound to accept it. 

Justice Pardiwala however questioned if the Governor is bound to accept even when the law is repugnant. Dwivedi answered that the Governor is neither a "court of law" and nor can he "act as super-legislature". He also questioned why the mechanical orders sent by the Governor to the President claim both repugnance and intra-vires. "If the law is intra-vires that is the end of the matter."

However, Singhvi and Rohatgi had different opinions on repugnance. Singhvi argued that there can only be a second round of reference to the President if there is "absolute repugnance". Whereas, Rohatgi argued that it is the State that initiates the second reference and asks the Governor to send it to the President. He said: "You require presidential assent for Article 254. If the State wants to frame repugnant law, it will be hit by Article 254. But nevertheless, the legislature sends it to the Governor and the Governor sends it to the President, the latter take advice of the Union Parliament...That is, sending a repugnant law to the President can only be under aid and advice of the [Council of Minsiters]."

However, Justice Pardiwala questioned if this wouldn't be an "empty formality" on the part of the Governor. 

On the issue whether the Governor can exercise the discretion of sending to the Governor, all counsels argued that those instances are "expressed" in the Constitution and are limited in nature. For instance, in Article 356, the Governor sends a report to the President seeking a Presidential proclamation. 

What weighed with the Governor?

While Singhvi said that the only reason why which weighed with the Governor is "legislative incompetence," this issue was not discussed at length. When Attorney General R. Venkataramani began his arguments after lunch, the Court again and again emphasised that they want to see what convinced the Governor. 

What is something so gross in the bills which the Governor took 3 years to find?...Mr Attorney, either show us from the original files some contemporaneous records to connect saying he withheld assent that weighed with them, you cannot just file affidavit for it...Except one letter from Secretary. Tomorrow we want to see this. Today, we are called upon to interpret Article 200. On the factual aspect, show us why Governor decided to withhold the assent. Keep in mind, we delivered the Punjab judgment on November 10 and on November 13, the Governor endorses that he has withhold assent. Otherwise, on November 13, the Governor had a three-judges bench judgment for some guidance " Justice Pardiwala asked.

It should be noted that on November 28, 2023, the Governor sent the re-enacted laws to the President. The Court also stated that it would clarify the "factual" error, if any, on the issue of whether the Bill was not sent back for reenactment. AG Venkataramani on several occasions submitted that the Bill was returned stating that the Governor is withholding assent and was not returned to the assembly for reconsideration. Today, he also questioned if the Governor can expected to write an "essay" on why he is returning the Bill.

Attorney General said that it was merely "coincidence" that the Governor withheld the assent soon after the Supreme Court's Punjab Governor case verdict.

He also added: "...if the Governor says he is sending it to the President giving certain details of repugnancy, the mere statement of law, that repugnancy is evident to me, and that to, I leave it in the hands of the President to deal with that. All that is argued is that the Governor, even if he perceived repugnancy, go a little beyond that and write an essay on repugnancy.."

On this, Justice Pardiwala responded: "You will have to show us the repugnancy. In the name of repugnancy, you cannot [withhold assent]. From the materials on record, you have to show us from objective satisfaction, based on this material, that he arrived at the decision."

Time period in which assent has to be given 

Here, Singhvi emphasised that even in cases such as land acquisition laws where a timeframe is not given, the Court had read it as a reasonable time. He made an analogy between the Speaker's power under the Tenth Schedule to decide defection petitions to the Governor's power under Article 200.

Referring to Keisham Meghachandra Singh judgment, where the Court fixed an outer limit of 3 months for the Speaker to decide disqualification, Singhvi said that the Court can read such time-limits even when the Constitution is expressly silent.  

Remedies sought 

Dwivedi has sought that the President's reference be declared unconstitutional. Singhvi sought that assent must either be directed or could be construed as deemed to be granted. Rohatgi has asked for the Court's direction invoking Article 142. 

The hearing will continue tomorrow.

Also Read - 'TN Governor Seems To Have Adopted His Own Procedure' : Supreme Court Asks Why Governor RN Ravi Withheld Bills

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023 [notice not issued]