THE CONTEXT: In recent times, the problem of delay in according to assent to Bills by the Governor, passed by the legislature has become a burning issue that confronts our polity. It is quite often seen as putting down the dignity of our democracy and its constitutional fundamentals to test. This article discusses these issues in a comprehensive manner to enable the students to develop the right perspective.
ILLUSTRATION OF THE RECENT INSTANCES
- Punjab: In July 2023, regretting the delay in signing the Sikh Gurdwaras (Amendment) Bill, 2023, the Chief Minister accused the Governor of working against the will of the people.
- Chhattisgarh: In April 2023, the government in Chhattisgarh was at loggerheads with the governor for the delay in giving assent to a Bill which seek to increase the overall quota in government jobs and admissions to educational institutions in Chhattisgarh to 76 per cent.
- Kerala: In September 2022, the Kerala Governor signed into law five Bills passed by the Assembly. However, he withheld assent to the remaining six Bills, putting him at odds with the government and provoking a sharp response.
- Tamil Nadu: The T.N. Admission to Undergraduate Medical Degree Courses Bill, which the Assembly approved in September 2021, remained inacted upon by the Governor. In June 2023, in response to an RTI, it was revealed that thirteen bills passed by the Tamil Nadu legislative assembly are pending assent with the Governor.
- Telangana: Because of the inaction of the Governor with respect to the Bills passed by the state legislature, the government had to approach the Supreme Court.
CONSTITUTIONAL PROVISIONS AND THE GOVERNOR’S POWER
ARTICLE 200 – ASSENT TO BILLS
- According to Article 200, when a Bill passed by the Legislature of a State is presented to the Governor, he has four options available to him; giving assent, withholding assent, reserving the Bill for the consideration of the President or returning the bill to the state assembly for reconsideration.
ARTICLE: 201- BILLS RESERVED FOR CONSIDERATION
- The Indian Constitution deals with provisions related to bills reserved for the consideration of the President.
- When a Governor reserves a Bill for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent.
- The President may also direct the Governor to return the Bill, where the Bill is not a Money Bill, with a message. When a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if the House or Houses again pass it with or without amendment, it shall be presented again to the President.
- There is no timeframe mentioned for the above provisions.
VETO POWER OF THE GOVERNOR WITH RESPECT TO BILLS
The Governor of India enjoys absolute veto, suspensive veto (except on money bills) and the pocket veto.
- Absolute Veto: It refers to the power of withholding his assent to a bill passed by the state legislature. The bill then ends and does not become an act.
- Suspensive Veto: The Governor returns the bill to the state legislature for its reconsideration.
- Pocket Veto: The constitution of India does not provide a time frame for the Governor and the Bill may be kept pending.
THE IMPLICATIONS OF DELAY IN GIVING ASSENT TO THE STATE BILLS
- The Governor uses his powers to delay assent to the Bills passed by state assemblies for various reasons, which undermines the constitutional provisions and is against the accepted norms.
- The Governor’s delay in giving assent to bills passed by the Assembly violates the state’s constitutional obligation and hinders the functioning of the state government and may paralyze the state administrative machinery and can further create federal challenges and parliamentary democracy.
- When the Governor fails to make a decision on a Bill passed by the assembly, it delays the implementation of policies and laws, especially when the Bill is related to public welfare. For instance, the Bill by the Chhattisgarh government which seeks to increase the overall quota in government jobs and admissions to educational institutions was delayed assent.
- When the Governor withholds assent, he is not bound to provide any reason for his decision. This lack of accountability undermines the principles of transparency and accountability and may give rise to questions and doubts against the Office of the Governor
WHETHER LACK OF A MANDATORY TIME FRAME TO ACT, JUSTIFY THE INACTION?
All bills passed by a state’s Legislature become laws only upon receiving the governor’s assent. Article 200 of the Constitution gives governors the power to either grant assent to a bill, reject it or reserve it for the president’s consideration in certain cases. While rejecting the bill, the governor may suggest amendments. However, the legislature is not obligated to accept these suggestions and can pass the bill again in its original form for the governor’s approval. On this occasion, the governor must either give assent or reserve it for the president’s consideration.
However, by not prescribing a time frame within which the governors must take a decision the Constitution has provided a loophole for governors to delay legislation – a manoeuvre sometimes called a pocket veto. Constitutional experts such as PDT Achary, former Lok Sabha secretary general, highlight that governors do not have the right to keep bills pending and Governors must exercise one of the options Article 200 has given them. Here it is imperative to note that sitting on the bill is not one of the options available to the Governor under Article 200.
Though the Constitution has not given any timeline for Governors to act on the Bills passed by the state legislature, because constitution makers probably didn’t find it necessary, as governors were given options to choose from, given the trend of the recent past suggests that pocket vetoes exercised by the Governors, undermine federalism to a great extend, especially in the case of Opposition-ruled states.
DISCRETIONARY POWER OF THE GOVERNOR VIS-A-VIS STATE BILLS
The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called into question on the ground that he ought or ought not to have acted in his discretion. When it comes to giving assent to the Bills passed by the state legislature, no specific discretionary power is entrusted to the Governor by the Constitution of India, and he is bound by the aid and advice of the council of ministers in this case. However, he can reserve the Bill for the consideration of the President on specific grounds which may be:
- Against the provisions of the Constitution,
- Opposed to the Directive Principles of the State Policy,
- Against the larger interest of the country and
- Dealing with the compulsory acquisition of property under the Article 31A of the Constitution.
In one case reserving the state bill for the consideration of the President is obligatory for the Governor, that is, where the Bill passed by the state legislature endangers the position of the State High Court. In Shamsher Singh vs State Of Punjab (1974) a seven-judge Constitution Bench of the Supreme Court said that the President and Governor, custodians of all executive and other powers under various Articles, shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.
In the context of the above discussion, it is clear that Governor does not have any reason to delay the assent to the Bills passed by the state legislature; otherwise it brings the Cabinet system of government itself into question.
WHY ARE THE GOVERNORS NOT ACTING UPON THE BILLS?
- The government is not providing enough information which may be required by the Governor for making wise and timely decisions.
- Governors are apprehensive about giving assent to certain Bills as they believe them to be diminishing the authority and dignity accorded to the Office of the Governor. For instance, many states have passed Bill for replacing the Governor as the Vice-chancellor of the state universities.
- Increasing conflicts within the federal system as in some instances the Governors seem to be taking the sides of the central government.
- Governors who seem to be interfering with the state machinery and falling in line with the central government seek better positions at the centre; we have seen one such promotion in the recent past.
JUDICIAL OBSERVATIONS
The Supreme Court in April 2023, in the Telangana case said that Governors should as soon as possible after the bill is submitted for assent; return the bill if it is not a money Bill. The Court also said that the expression “as soon as possible” has a significance which should be borne in mind by the constitutional authorities.
The Supreme Court in the case of U.N. Rao v. Indira Gandhi (1971) held that the position of the President and that of the Governor are just titular in nature and that the real power is actually exercised by the Council of Ministers. The satisfaction of the President or the Governor in the Constitutional sense in the Cabinet system of Government, that is, the satisfaction of his Council of Ministers on whose aid and advice the President or the Governor exercises all his powers and functions.
In the case of Rai Sahib Ramjawaya v. State of Punjab (1955), it was held that the Constitution though federal in structure is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law. The Constitution does not aim at providing a parallel Government within the State by allowing the Governor to go against the advice of the Council of Ministers, therefore neither the President nor the Governor is to exercise executive functions at their own discretion.
THE WAY FORWARD:
- The Governors should not overreach their authority. Being an eminent constitutional authority, it is expected that the persons holding the Office of the Governor should play by the rule book i.e. the Constitution of India.
- The Supreme Court should set a reasonable time frame for Governors to make a decision on a Bill passed by the Assembly in the interest of federalism in the country.
- The Sarkaria Commission (1988) was of the opinion that Article 200 did not invest the Governor with a general discretion in reserving Bills. Only in extremely rare cases should the Governor reserve a Bill in his discretion and not merely because, personally, he does not like the policy embodied in the Bill. Such recommendations shall be included in the Constitution through proper amendments.
- The exercise of ‘discretionary powers’ by the Governors should be guided by the healthy and democratic conventions and they must act judiciously, impartially and efficiently while exercising their discretion and personal judgment.
- The state governments should also not take an adversarial approach as it is the Governor’s duty to see that the bills passed by the state assembly must pass the muster of constitutional guidelines.
- It is also imperative on the part of the Governor to make a decision regarding the assent to the state bills. Even in cases he thinks it fit to withhold the assent he should say so. Inaction is not an option.
- Punchhi Commission (2010) held that if a Bill was, on reconsideration as indicated by the Governor, passed by the State legislature again, with or without amendments, the Governor is obliged to give his assent. Furthermore, it is necessary to prescribe a time limit within which the Governor should take the decision whether to grant assent or to reserve it for consideration of the President. The Governor shall also make his decision on the Bill within a maximum period of six months after submission to him.
THE CONCLUSION: In a parliamentary democracy, the Governor has no discretion to defer or delay necessary assent. Any refusal on the part of the Governor including any delay will defeat the parliamentary democracy and the will of the people. The Constitution of India envisaged a politics of social transformation through performative politics and good governance for the people through the office of the governor. It is worth noting here that in his speech on the constitutional role of Governors, Dr B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.
Mains Practice Questions:
Q.1 Parliamentary democracy and the cabinet form of government at the state level requires the Governor use his legislative power with respect to Bills within the limited discretion provided by the constitution. Examine in the context of recent developments.
Q.2 With its provision for definite choices, the Constitution makes it obligatory for the Governor to act without a wait. Discuss the statement in the context of recent issues with the governors indefinitely delaying their assent to the state bills.
Spread the Word
