President Must Decide On Bills Reserved By Governor Within 3 Months; States Can Approach Courts Against President's Inaction : Supreme Court

In the landmark judgment in the 'State of Tamil Nadu vs Governor of Tamil Nadu' case, the Supreme Court has also set timelines for the President to act as per Article 201 of the Constitution on the Bills which the Governor has reserved for the President's assent.

The Court held that the President must take a decision within 3 months on the Bills reserved. In the judgment, the Court has also set timelines for Governor's actions on Bills under Article 200.

A bench comprising Justice JB Pardiwala and Justice Mahadevan observed in paragraph 391 of the judgment that "the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received."

In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State. The States are also required to be collaborative and extend co-operation by furnishing answers to the queries which may be raised and consider the suggestions made by the Central government expeditiously. 

If there is no action by the President within the time-limit, the States are entitled to file writ petitions seeking the issuance of a writ of mandamus against the President.

"Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court."

The Court referred to the recommendations made by the Sarkaria and Punchhi Commissions. Reference was also made to the Office Memorandum issued by the Ministry of Home Affairs, Government of India dated 04.02.2016 which said that “A time limit of maximum 3 months be strictly adhered to for finalizing the Bills after their receipt from the State Government”. Reference was also made to another communication issued by the Union Government expressing concerns over the delay in the approval of Bills. Thus, the Court in fact borrowed from the guidelines issued by the Central Government itself as regards the time limits for decisions under Article 201.

“We, therefore, deem it appropriate to adopt the timeline prescribed by the Ministry of Home Affairs in the aforesaid guidelines, and prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the dateon which such reference is received.”

No absolute veto for the President as well

The Court held that like the Governor, even the President can also not exercise "absolute veto" by indefinitely sitting over the Bills.

"While in the preceding paragraphs we have elaborated that the Governor does not hold the power to exercise 'absolute veto' on any bill, we see no reason why the same standard would also not apply to the President under Article 201 as well. The President is not an exception to this default rule which permeates throughout our Constitution. Such unbridled powers cannot be said to remain in either of these constitutional posts," stated the judgment authored by Justice Pardiwala.

President's withholding of assent can be challenged in Courts

"Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner."

Where the bill which is under consideration pertains to a subject matter or domain within which State legislature has been accorded primacy, and the reservation of the bill is by the Governor contrary to the aid and advice of the State Council of Ministers, then in exercise of judicial review the courts would be competent to look into the reasons for withholding of assent and whether they are legally tenable or not, besides the grounds of malafides and arbitrariness, etc. 

President must declare reasons

The Court further held that the President is under an obligation to declare reasons for the decision which must be communicated to the State Government.

"The natural corollary of the constitutional abhorrence to the notion of simpliciter withholding of assent within our Constitution is that a requirement and responsibility of assigning reasons to the withholding of assent is cast upon the President. What follows from this is that the reasons assigned by the President for withholding of assent must be communicated to the State government concerned. Such an inference is legitimate since there remains no logic in assigning reasons if the same cannot be responded to and addressed by the State government.

Putting the State government to proper notice of the reconsiderations or amendments to the bill, which the Council of Ministers at the Centre may have, is also an essential obligation inhered in such situations. In the absence of such communication, there exists a real and grave danger of denying the State government the knowledge of the reasons due to which the bill passed by the State legislature had not been assented to. Furthermore, there may exist situations where the State governments may be amenable to some remedial changes or amendments.

However, in the absence of any communication, they may be robbed of any chance to undertake those changes and ensure that the bill becomes law in their State. The State governments must not be prevented from entertaining or possibly incorporating the changes or amendments to the bill which was originally referred to the President, solely due to the absence of a transparent information sharing mechanism, which the State government may be said to be entitled to in a federal polity. Entertaining such a dialogue assumes importance since the fulcrum of a healthy Centre- State relations, in a constitutional democracy, is the transparent collaboration and cooperation between the Union and the States."

Lack of bona fides can be presumed in the absence of reasons

The Court went a step further to say that in the absence of reasons, the Courts can presume the lack of bona fides on the part of the President.

"..we are of the considered view that the expression of intention by the President through a declaration of reasons supporting his actions under Article 201 is of paramount importance and this Court is not inhibited in any manner to make a presumption that the President and by extension, the Central government, may not have acted in a bona fide manner at the time when it exercises its powers of judicial review."

The Court also recommended that the States should enter into pre-legislation consultation with the Central government before introducing legislations on matters pertaining to those provisions of the Constitution where the assent of the President may be required. Likewise, the Central government, should consider the legislative proposals sent by the State governments with due regard and expediency. "Such a practice reduces friction between Centre- State relations and also ensures that future roadblocks are overcome in the beginning itself, thereby promoting public welfare," the Court opined.

President ought to seek the Court's advice if Bill is reserved on the ground of unconstitutionality

If the Bill is reserved on the ground of unconstitutionality, then the President ought to seek the Supreme Court's advice as per Article 143 of the Constitution, the Court suggested.

"Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to this Court in exercise of his powers under Article 143 of the Constitution."

Other Reports about the judgment can be read here.

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023