The story so far: Tamil Nadu Governor R. N. Ravi has ‘withheld’ assent for certain Bills passed by the Tamil Nadu Legislative Assembly. This follows the Supreme Court expressing ‘serious concern’ over inaction by the Governor on Bills presented for his assent. The court expressed displeasure on similar delays by Governors of Telangana, Punjab and Kerala.
What does the Constitution say?
Article 200 of the Constitution lays down that when a Bill, passed by a State Legislature, is presented to the Governor for their assent, they have four alternatives — may give assent to the Bill; may withhold assent to the Bill, that is, reject the Bill in which case the Bill fails to become law; may return the Bill (if it is not a Money Bill) for reconsideration of the State Legislature; or may reserve the Bill for the consideration of the President.
As held by the Supreme Court in various cases including the Shamsher Singh case (1974), the Governor does not exercise their discretionary powers while withholding assent or returning a Bill to the State Legislature. They are required to act as per the advice of the Council of Ministers. The situation of ‘withholding assent’ may arise in case of a Private Members’ Bill (any Member of State Legislature other than a Minister) passed by the State Legislature, which the council of ministers do not want to be enacted into a law. In such an instance, they would advise the Governor to ‘withhold assent’. However, this is an unlikely scenario as the council of ministers who enjoy a majority in the Legislative Assembly would not allow the passage of such a Bill. Secondly, if the incumbent government whose Bill has been passed by the legislature falls or resigns before it is assented to by the Governor, the new council may advise the Governor to ‘withhold assent’.
The return of any Bill to State Legislature for reconsideration is also to be done based on ministerial advice. However, Governors in the past have exercised their discretion in returning Bills, like the Tamil Nadu Governor with respect to the Bill prohibiting online gambling. However, the Governor shall assent to such a Bill if it is passed again by the State Legislature.
The Governor must reserve certain Bills, like those which reduce the powers of the High Court, for the consideration of the President. They may also reserve Bills on concurrent list that are repugnant to a Union law based on ministerial advice. It is only under rare circumstances that the Governor may exercise their discretion, where they feel that the provisions of the Bill will contravene the provisions of the Constitution and therefore, should be reserved for the consideration of the President. It must however be noted that the Constitution does not lay down any time limit within which the Governor is required to make a decision.
What were the recommendations?
The Sarkaria Commission (1987) has submitted that it is only the reservation of Bills for consideration of the President, that too under rare cases of unconstitutionality, that can be implied as a discretionary power of the Governor. Save in such exceptional cases, the Governor must discharge his functions under Article 200 as per the advice of ministers. It further recommended that the President should dispose of such Bills within a maximum period of six months. In the event of the President ‘withholding assent’, the reasons should be communicated to the State Government wherever possible. The Punchhi Commission (2010), had recommended that the Governor should take a decision with respect to a Bill presented for their assent within a period of six months. However, these recommendations have not been implemented till date.
How can this impasse be resolved?
The underlying disease that has plagued our federal set up has been the politicisation of the gubernatorial post. Many political leaders starting from C. N. Annadurai to Nitish Kumar have called for the abolition of the Governor’s post in the past. However, as per our Constitutional scheme, there is a need for a nominal head of the State executive just like the President for the Union executive. Further, the Governor acts as an appointee of the Centre who may be required for maintaining the unity and integrity of the nation in critical times. However, federalism is a basic feature of our Constitution and the Governor’s office should not undermine the powers of elected governments at the States.
As the Supreme Court observed, it is necessary for the Governors and Chief Ministers to do ‘a little bit of soul-searching’. The Constitution may be amended to provide that the Chief Ministers shall be consulted before appointment of the Governors. The recommendation of the Punchhi Commission that Governors may be removed through an impeachment by the State Legislature can also be considered. This would arm the State legislatures with the power to remove an uncooperative Governor. These amendments would have a salutary effect on the Central and State Governments resulting in responsible cooperation in the matters of appointment and functioning of the Governors.
Rangarajan R is a former IAS officer. He currently trains civil-service aspirants at ‘Officers IAS Academy’. He has authored the book ‘Polity Simplified’ for civil service exams. Views expressed are personal.
