Abstract
This case examines the Governor’s constitutional duties and responsibility in relation to state legislative assent under Article 200 of the Indian Constitution. The Supreme Court examined the acts of the Governor of Tamil Nadu, who postponed and later refused to sign ten measures that were approved by the State Legislature. Following a re-examination, the Governor reserved the bills for the President without first meeting the State Council of Ministers. The Governor must respond within a certain timeframe—one month for first assent and three months for measures that are reconsidered—after the Court declared that such inaction and withholding of assent were unconstitutional. It made it clear that the Governor cannot use a “pocket veto” or “absolute veto,” highlighting the need for prompt and responsible action under Article 200. It further decided that Article 200’s discretionary powers must be in accordance with democratic principles and constitutional standards and are subject to judicial review. Within three months, the President must also make a decision about reserved bills. The ruling reaffirmed the requirement that top constitutional officials respect constitutional directives, refrain from acting capriciously, and continue to be answerable to democratic principles. The Court thus emphasized the importance of constitutional procedures over political discretion by declaring the Governor’s reservation of the laws and any subsequent presidential measures to be unlawful.
Keywords
- Governor
- Assent
- Article 200
- Judicial Review
- President
- Tamil Nadu Bills
- Supreme Court Judgement
Methodology
This research employs the doctrinal research method based on secondary data. It involves a detailed examination of constitutional provisions, specifically Articles 200 and 201 of the Indian Constitution, and judicial interpretations provided by the Supreme Court in the recent Tamil Nadu Governor case. Secondary sources such as constitutional texts, legal commentaries, case laws, and reports like the Sarkaria and Punchhi Commissions have been analyzed. The study focuses on understanding the constitutional role of the Governor and President in the legislative process, highlighting legal controversies and judicial review of executive actions within a federal democratic framework.
Review of Literature
The role of the Governor and the President in India’s constitutional framework has been widely discussed across disciplines such as political science, constitutional law, and public administration. Scholars of constitutional law like M.P. Jain and D.D. Basu have critically analyzed Articles 200 and 201, highlighting the scope and limits of discretionary powers vested in Governors. They argue that while the Constitution provides the Governor with specific powers regarding assent to bills, judicial review acts as a necessary check against misuse.
In the domain of political science, Granville Austin emphasizes the importance of cooperative federalism and how the discretionary powers of Governors can often lead to friction between the Centre and the states, especially when politically motivated. This has been reflected in real-world issues like the Tamil Nadu case, where the delay in granting assent raised questions of federal integrity.
Administrative thinkers refer to the Sarkaria and Punchhi Commission Reports, which suggest reforms for enhancing federal balance and reducing arbitrary use of power by Governors. These commissions recommend clear guidelines to ensure accountability and avoid conflicts between constitutional functionaries.
Judicial interpretations, particularly by the Supreme Court in the recent judgment regarding the Governor’s inaction, have reaffirmed that while Governors hold constitutional authority, it must be exercised within legal and moral boundaries. This multidisciplinary discussion helps frame the Governor’s role not just legally but also politically and ethically, making it an important subject for contemporary constitutional debates. The convergence of these views underscores the necessity of reform for harmonious federal functioning.
Introduction
Article 153 of Indian constitution states the definition for Governors of States that “There shall be a Governor for each State”.
Background: The Legislature of the State of Tamil Nadu enacted and sent 12 Bills to the Governor under the provisions of Article 200 of the Constitution for obtaining assent, between 13-01-2020 to 28-04-2023. Even the present Governor assumed charge of the office with effect from 18-11-2021, still he did not act upon any of the said Bills so forwarded to his Office till October 2023. Aggrieved by the inaction on part of the Governor, the petitioner was left with no alternative than to file the instant writ petition. The Court issued notice to the respondents on 10-11-2023 and the Governor decided on the 12 Bills on 13-11-2023 by merely withholding assent to the 10 bills. With the aid and advice of the Council of Ministers of the State on 28-11-2023, the Governor, exercising his discretion, reserved the said repassed Bills for the consideration of the President. While Governor observed that the Bills were intra-vires the legislative competence of the State Legislature having been legislated under Entry 66 in List I, Entry 32 in List II and Entry 25 in List III, yet he referred the said Bills for consideration of the President for the second round on the ground that the Bills were repugnant as they were contrary to Entry 66 in the Union List i.e., List I .
Supreme Court on the exercise of judicial review of authority under Articles 200 and 201: The Court clarified that the ideas of justiciability and judicial review are not interchangeable. In a written constitution, judicial review authority is implied. The power of judicial review is accessible with regard to the exercise of powers under any of the Constitution’s provisions, unless it is specifically excluded by a provision. Conversely, justiciability refers to a specific area that is under the jurisdiction of judicial scrutiny.
Therefore, while the President’s or Governor’s assent may not be enforceable because they are actions that are typically taken with the Council of Ministers’ assistance and advice, the Governor’s exercise of discretion, which is subject to the Constitution’s limitations, would be enforceable based on judicially determinable standards if he withheld his assent or reserved bills for the President’s consideration.
Role of Governor in passing a bill
In India, the governor of a state has a constitutionally significant role in the legislative process, especially when it comes to enacting legislation.
- Getting the bill
A bill is delivered to the governor for assent after passing the state legislature, which can be either unicameral or bicameral.
- The Governor’s Options
The Indian Constitution’s Article 200 gives the governor the following four choices:
- Give Assent: If the bill receives the governor’s approval, it becomes law.
- Withhold Assent: This rare and contentious option allows the governor to reject the bill.
- Return the measure: The Governor may return a measure with a request for reconsideration if it is not a money bill.
- The governor must assent to the measure if it is passed again by the legislature, whether or not it has been amended.
Save the measure for President’s Consideration: The Governor may forward the measure to the President in the following situations:
- Central legislation might be in contradiction with it.
- The national interest is impacted.
- It deals with issues that are outside the state legislature’s purview.
- Extra Room for Cash Bills
If it’s a money bill, the governor is not allowed to return it for reconsideration under Article 201 and must instead:
Give your consent.
Keep it for the president.
- Discretionary Authority
The Governor may act independently in some circumstances, particularly where the Constitution does not require him to follow the Council of Ministers’ advice (e.g., reserving a measure for the President).
Role of President in passing a state bill
Only when the Governor reserves a measure for consideration under Article 200 or Article 201 of the Constitution does the President of India enter the picture.
Article 200: The Governor may hold off on signing the measure until the President:
The Constitution forbids it.
It goes against the interests of the country.
It is in conflict with central legislation.
It impacts the High Court’s authority.
Article 201: The President may do the following when a bill is reserved:
Assign your signature, and the bill becomes law ,withholding assent results in the bill’s rejection and Send the bill back to the State Legislature for review (money bills excepted).
Supreme Court decision in the the Tamil Nadu Governor case
The Division Bench of J.B. Pardiwala and R. Mahadevan JJ. held that the Governor’s reservation of the 10 Bills for the President’s consideration in the second round was unlawful, erroneous in law, and therefore subject to be set aside while considering the instant petition under Article 32 of the Constitution filed by the State of Tamil Nadu, which was upset with the Governor’s refusal to grant assent to and reserve for the President’s consideration of ten bills enacted by the State of Tamil Nadu; the Governor’s failure to authorize the prosecution of corrupt public officials; and the status of several significant files pertaining to the premature release of prisoners and the appointment of public servants.
The Court further held that the bills are considered to have been approved by the governor on the day they were brought to him after being reconsidered because they had been pending with him for an excessively long time and the governor had acted without any legitimate reason in reserving the bills for the president’s consideration. Holding that neither the “pocket veto” nor the “absolute veto” concepts fit into the constitutional framework and mechanism envisioned by Article 200 of the Constitution, and that even in the absence of a time limit, Article 200 cannot be interpreted in a way that permits the Governor to do nothing about bills that are brought before him for assent, effectively delaying and blocking the State’s legislative process, the Court proceeded to establish a time limit for the exercise of power under Article 200, guided by the procedural expediency of the Article: The Governor is expected to respond immediately, within a maximum of one month, in the event that the State Council of Ministers advises and assists the Governor in withholding assent or reserving the measure for the President’s consideration.
Should the Governor withhold assent against the State Council of Ministers’ recommendation, the bill and a message must be returned within a maximum of three months; if the Governor reserves bills for the President’s consideration against the State Council of Ministers’ recommendation, the reservation must be made within a maximum of three months. When a measure is presented following reconsideration in line with the first proviso, the governor is required to immediately grant assent, with a maximum of one month to do so. The Court further explained that the President cannot exercise a “absolute veto” or “pocket veto” while carrying out his duties under Article 201. By using the phrase “shall declare,” the President is required to choose between the two alternatives provided under Article 201’s substantive component, namely, to either grant or withhold assent to a measure.
In no way does the constitutional framework allow a constitutional authority to use its constitutionally granted powers arbitrarily. This indicates that providing justification for the withholding of consent under Article 201 must be done in tandem with the withholding.
The President must make a decision on the bills that the Governor has set aside for his consideration within three months of receiving the reference, according to the Court, which took into account the expediency of Article 201, the reports of the Sarkaria and Puncchi Commissions, and the Ministry of Home Affairs’ memo dated 04-02-2016. Any delays that go beyond this time frame would need to be documented and communicated to the relevant State. Background: In accordance with Article 200 of the Constitution, the State of Tamil Nadu’s Legislature passed and transmitted 12 bills to the Governor for assent between January 13, 2020, and April 28, 2023.
Although the current governor assumed office on November 18, 2021, he did not do anything about any of the bills that were sent to his office until October 2023. The petitioner was ultimately forced to submit the current writ petition because they felt wronged by the Governor’s inaction. On October 11, 2023, the Court sent notice to the respondents. On November 13, 2023, the Governor made a decision regarding the 12 bills by refusing to give his simple assent to 10 of them. In the exercise of his discretion, the Governor reserved the aforementioned repassed bills for the President’s consideration on November 28, 2023, without consulting the State Council of Ministers.
The Governor reserved the aforementioned bills for the President’s consideration in the second round, citing their repugnancy due to their violation of Entry 66 of the Union List, or List I, even though he acknowledged that the bills were within the State Legislature’s jurisdiction because they were legislated under Entry 66 of List I, Entry 32 of List II, and Entry 25 of List III.
Constitutional Duties and Restrictions on the Governor in Passing State Bills
The proper legal stance in this respect is established by the court’s ruling in State of Punjab v. Principal Secretary to the Governor of Punjab. In Union of India v. Valluri Basavaiah Chowdhary, the Court clarified that the phrase “the bill falls through unless the procedure under the first proviso is followed” means that after the Governor declares withholding of assent and returns the bill to the House or Houses, it will lapse or fall through unless the House or Houses reconsider the bill in light of the Governor’s recommendations in his message and present it to him after re-passing.
It cannot be inferred from the phrase “unless the procedure under the first proviso is followed” that the Governor has discretion over when to activate the machinery outlined in the first proviso. The Governor must follow the steps outlined in the first proviso “as soon as possible” after exercising the option to withhold assent. The Court went on to explain that the substantive portion of Article 200 purposefully employs the phrase “shall declare” to indicate that there is no room for inaction and that the Governor is required by the Constitution to choose one of the three options listed in the bill whenever it is brought before him.
Additionally, the first proviso’s phrase “as soon as possible” pervades Article 200 with an air of haste, preventing the governor from sitting on the measures and exercising a pocket veto. Similarly, the Governor cannot announce a simpliciter withholding of assent because the first proviso is inherently and irrevocably linked to the possibility of withholding assent. This means that a “absolute veto” is also prohibited under Article 200. Article 200 plays a crucial function in granting the State legislature’s bills the legal standing of an Act.
“The bills remain nothing more than pieces of paper, skeletons with no flesh or lifeblood coursing through them, merely documentation of the aspirations of the people with no possibility of bringing them to fruition, without the procedure envisaged under Article 200.” Generally speaking, once a bill is brought before the President in the second round after it has been returned to the House in accordance with the first proviso, the Governor is not permitted to hold it for his consideration.
The phrase “shall not withhold assent therefrom,” which appears in the first proviso, clearly imposes an embargo on the governor and states that he must consent to a bill that is presented to him after following the steps outlined in the first proviso. The only time this general norm is broken is if the measure that is presented to the governor in the first round differs significantly from the one that is presented in the second round. The Governor would then have the freedom to select one of the three possibilities listed in Article 200’s substantive section.
The Court further explained that the Governor would only be justified in using his authority under Article 200 against the Council of Ministers’ advice in situations where he is mandated by the Constitution to act in his own discretion [such as Article 163(1) and the second proviso to Article 200]. Furthermore, judicial review is available for any discretionary actions taken by the Governor in the exercise of his authority under Article 200.
In addition, the Court ruled that B.K. Pavitra v. Union of India, (2019), was per incuriam to the extent of the two observations included therein: First, that the Constitution gives the Governor discretion over the reservation of bills for the President’s consideration; and second, that the Governor’s use of discretion under Article 200 is exempt from judicial review. “It is evident from the first proviso’s use of the phrase “as soon as practicable” that the Constitution places a sense of urgency on the Governor and expects him to act quickly if he chooses to declare the withholding of assent.”
Referring to Article 201 of the Constitution, the Court stated that the Governor may reserve a bill for the President’s consideration if a constitutional provision requires the President’s consent before a State law can be enacted or if the Governor wants to obtain some immunity from the State Legislature. Articles 31-A, 31-C, 254(2), 288(2), 360(4)(a)(ii), and other provisions of the Constitution provide such a requirement. Reservation for the President’s consideration is also required by Article 200’s second proviso.
In the event that a bill is reserved for the President’s consideration under Article 200 of the Constitution due to patent unconstitutionality, the President must be guided by the fact that the constitutional courts have been placed in charge of making decisions regarding the legality and constitutionality of executive or legislative actions. As a precaution, the President should consult the Supreme Court while using the authority granted by Article 143 of the Constitution.
It is not undermining the Governor’s office, the Court clarified. “We only state that the governor must act in accordance with the established norms of parliamentary democracy, honoring the legislature’s expression of the people’s will and the elected government’s accountability to the people.”
Method
A governor must carry out his responsibilities as a friend, philosopher, and advisor impartially, guided by the sanctity of the constitutional oath he swears rather than political expediency. “The governor must be the voice of agreement and resolution during times of dispute, lubricating the operation of the state apparatus with his insight and wisdom rather than bringing it to a complete halt. He can’t be an inhibitor; he must be the catalyst. He must act with the dignity of the high constitutional office he holds in mind at all times.
Suggestion
The Court’s Opinion: The Court observed that the interpretation of the substantive portion of Article 200 and its first proviso is at the centre of the dispute in this case after reviewing the history of the provision and the commentary that has been attached to it.
The Court noted, after exploring the long pre-constitutional and post-constitutional history of Article 200, that when a bill passed by the State legislature is brought before him, the Governor has three choices: he can either assent it, withhold his assent, or reserve it for the President’s consideration. According to the Court, the option to withhold assent offered in the substantive part of Article 200 should be interpreted in connection with the First Proviso. In situations where the governor must exercise the option of withholding assent, it must be mandated by the governor and is not a stand-alone course of action.
Conclusion
In its concluding remarks, the Court emphasised that constitutional authorities occupying high offices must be guided by the values of the Constitution. “These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers”. When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built. Decision: With the afore-stated assessment, the reservation of the 10 Bills by the Governor of Tamil Nadu for the consideration of the President on 28-11-2023 after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 was declared to be erroneous in law by the Court. Any consequential steps that might have been taken by the President on these ten Bills were held to be equally non-est and were set-aside.
Namarata Shah
Indore Institute of Law