Governor can’t send re-adopted Bill to President after withholding assent: SC

Governor can’t send re-adopted Bill to President after withholding assent: SC

Subject : Polity

Section: Federalism

Context: Governor can’t send re-adopted Bill to President after withholding assent

More about the news:

• The Supreme Court of India has urged Tamil Nadu Governor R N Ravi to engage with Chief Minister M K Stalin and resolve the impasse over the delay in clearing Bills sent to him by the Assembly.
• The court emphasized that a Governor cannot refer a Bill for Presidential assent after it has been re-adopted or re-enacted by the Assembly.
• The Chief Justice of India, D Y Chandrachud, suggested that the Governor and Chief Minister sit down and resolve the issues.
• The court clarified that if the Governor withholds assent to a Bill, he must send it back to the Assembly and cannot simply retain it.
• The case involves the Tamil Nadu Governor withholding assent and not returning the Bills to the Assembly, referring them to the President after the Assembly re-enacted them.
• The court stated that the Governor has three options under Article 200:
  • Assent to the Bill, 
  • Withhold assent, 
  • Reserve the Bill for the President. 
• The court will further examine the matter in the next hearing.

What does the Constitution say:

• Article 200 of the Constitution outlines four options available to a Governor when a legislature-passed Bill is presented for assent:
  • Grant assent immediately.
  • Withhold assent.
  • Return the Bill to the legislature, requesting reconsideration of the Bill or specific provisions.
• If the legislature reapproves the Bill, with or without accepting Governor-suggested amendments, the Governor is constitutionally obligated to grant assent.
• Alternatively, the Governor may reserve the Bill for the President’s consideration.
• In the case of Presidential consideration i.e Article 201 the decision to grant or withhold assent is made by the President. Notably, there is no specified timeframe for the President to decide on the Bill’s outcome.

Do Governors have discretion:

• Governors did have a discretion to return Bills before the first provision in the draft Article 175 (now Article 200).
• This was amended by the Constituent Assembly in 1949.
• The first provision to Article 200 is thus a saving clause and retains the discretion over the fate of the Bill solely in the hands of the State Cabinet.
• Article 163 makes it clear the Governor is not expected to act independently.
• The Supreme Court in the Shamsher Singh case verdict has held that a Governor exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
• The assent or return of the Bill does not involve the discretion of individuals occupying the Governor’s post.

Can a Governor in practice actually sit on a Bill forever:

•  Granting assent to Bills is among the limited areas where the Governor has discretionary powers. However, the exercise of this discretion must adhere to constitutional principles, relying on compelling reasons rather than personal preferences.
• Notably, Article 200 employs the term “shall,” suggesting that the Constitution framers intended a mandatory requirement for Governors in this regard.

What were the recommendations of different commission:

• The Sarkaria Commission (1987) has emphasized that the Governor’s power to reserve Bills for the President’s consideration is a rare and implied discretionary authority, primarily applicable in cases of unconstitutionality.
• In all other instances, the Governor should adhere to Article 200, acting on ministerial advice.
• The commission suggested that the President should resolve such Bills within a maximum of six months, communicating reasons for withholding assent when possible.
• Despite recommendations from the Punchhi Commission (2010) to decide on Bills within six months, these proposals remain unimplemented.

What are various Supreme Court observations w.r.t Governor

• Purushothaman Nambudiri vs State of Kerala (1962):
  • The Constitution Bench clarified that no specific time limit is imposed by the Constitution for the Governor to provide assent to Bills.
  • Emphasized that the Governor must align actions with the will of the Legislature and operate in harmony with their Council of Ministers.
  • The Supreme Court  asserted that withholding assent to a law validly passed by the Legislature constitutes a direct attack on the federal structure of the Constitution. Noting that causing delays in assenting to Bills would be an arbitrary exercise, contradicting the constitutional spirit.
• Shamsher Singh vs State of Punjab (1974):
  • A 7-judge Constitution Bench outlined that the President and Governor should exercise their formal constitutional powers based on the advice of their Ministers, with few well-known exceptions.
• Nabam Rebia case (2016):
  • The SC cited B R Ambedkar’s observations, stating that the Governor has no independent functions to execute but does have specific duties to perform, urging recognition of this distinction by the House.
  • Ruled that Article 163 of the Constitution does not grant the Governor general discretionary power to act against or without the advice of the Council of Ministers.
• Rajiv Gandhi assassination case (2018):
  • The SC expressed dissatisfaction with the Governor’s delay in taking action on the release of seven convicted prisoners, citing a lapse of more than two years.

What are the other Constitutional Position related to Governor:

• Article 153 of the Indian Constitution mandates the appointment of a Governor in each state. The 7th Amendment to the Constitution however, allows for the appointment of the same person as Governor of two or more states.
• Article 154: The Governor shall have executive power over the state, which he shall exercise either directly or through officers subordinate to him in conformity with this Constitution.
• Article 163: There shall be a council of ministers, led by the Chief Minister, to assist and advise the Governor in the exercise of his powers, except when he is compelled to execute his functions at his discretion.
• Article 164: The council of ministers is collectively responsible to the state’s legislative assembly. This provision is the cornerstone of the state’s parliamentary system of governance.
• The Governor has the same Executive, Legislative, Financial, and Judicial authorities as the President of India. However, the Governor’s power is restricted in several ways compared to that of the President, as the Governor lacks the President’s military, diplomatic, and emergency authorities.