Recently issues have arisen in various States between Chief Ministers and Governors, with regard to the passing of Bills. Chief Ministers feel that Governors have not acted for an unduly long period of time on Bills presented for their assent. This is a tricky situation for a parliamentary democracy, where the people elect a government to enact laws which reflect their will. If an elected government cannot legislate, it could lead to a breakdown of parliamentary democracy.
Governor’s role
The Legislature of a State comprises the Governor and the Legislative Assembly (if the State has one House) and a Legislative Council (if the State has two Houses). The Governor has little autonomy in his functioning — it is a settled legal position that he can act only on the “advice” of his Council of Ministers, with the Chief Minister as the head of the Council. The intention of the framers of the Constitution was for the President or Governor to act only on the advice of the Council of Ministers. Actual governance of the country/State is by the Prime Minister or the Chief Minister as the case maybe.
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There is, however, a caveat to this. There are certain instances where a Governor can exercise his discretion independent of the Council of Ministers. Whether a Governor has discretion or not in a particular matter is significant since, as per Article 163(2) of the Constitution, this decision of his cannot be challenged. In Shamsher Singh v State of Punjab (1974), the Supreme Court held that a President or a Governor can exercise their discretion independent of their Ministers only where the Constitution expressly permits them to do so.
Article 200 states that when the Governor is presented with a Bill, he can either give his assent or withhold it or return the Bill with certain suggestions. The first proviso of the Article states that after a Bill is presented to him, the Governor may, as soon as possible, return the Bill if it is not a Money Bill with a message to reconsider the Bill as a whole or any part thereof. The House has six months to decide whether or not to accept this request. Once the House returns the Bill to the Governor, he has no choice but to give his assent whether or not his recommendations have been accepted. The second proviso of the Article gives the Governor discretion to refer a Bill to the President if he is of the opinion that the Bill, if passed, would take away the powers of the High Court. The procedure to be followed when presidential assent for such a Bill is required is set out in Article 201 of the Constitution.
The discretion of the Governor does not contemplate an indefinite withholding of assent to a Bill. Such an action would cause a breakdown of the constitutional machinery. To what extent the Governor’s autonomy is recognised under the Constitution can be seen from a few judgments of the Supreme Court.
Governor’s autonomy
In Purushothaman Nambudiri v State of Kerala, while deciding whether a Bill pending the Governor’s assent would lapse upon the dissolution of the House, the Court considered the provisions of Article 200 and 201 to hold that it would not. It held that since there is no time limit prescribed under Articles 200 and 201 for the Governor or the President to give their assent, unlike the House which has six months to decide the recommendations of the Governor or the President as the case may be, it suggests that the framers of the Constitution did not want a Bill pending assent from the Governor to be at risk of lapsing on dissolution of the House.
Though the Constitution prescribes no express time limit, the first proviso does mention that the Governor ought to either give his assent or send the Bill back to the House as soon as possible. In Shamsher Singh, the Court held, though not explicitly, that it is only with respect to the second proviso that the Governor exercises discretion independent of the Council. It held that the Governor’s power, to reserve Bills for the President’s consideration, is one such discretionary power. The Court also highlighted the exceptional circumstances of the Governor acting independent of the Council of Ministers. It held that de Smith’s statement on royal assent would hold good even in the context of Indian democracy for both Presidents and Governors (“Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional.”) In Nabam Rebia and Bamang Felix vs Dy. Speaker, the Court also held that in so far as Article 200 is concerned, the Governor exercises discretion only with regard to whether a Bill ought to be reserved for consideration of the President or not. This is important because the Court has also held that Article 163(2) has to be understood in the context of Article 163(1), meaning only those matters where the Constitution expressly permits the Governor to act autonomously cannot be challenged before a court of a law. The judgment in Nabam Rebia has been referred to a larger bench of the Court with regard to the issue of whether a Speaker is barred from proceeding with deciding matters under Schedule X while a motion for his removal is pending before the House.
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The Governor, therefore, has no discretion to indefinitely withhold assent to a Bill. If a Bill is presented to him, it has to be returned with recommendations or given assent as soon as possible. If it takes away the power of the High Court, the Governor has the discretion to refer it for the President’s consideration. Refusing to act on a Bill is in violation of the Constitution, and a Governor’s action or inaction in this regard would be susceptible to judicial review.
Gautam S. Raman is an advocate practising at the Madras High Court
