THE CONTEXT: States have approached the Supreme Court against the conduct of their governors over the pendency of the Bills. They also allege that the Governors are using their authority to delay the implementation of decisions by elected regimes.
MORE ON THE NEWS:
- States have stated that the Governor’s inactions over the pendency of the Bills have caused an impasse between the constitutional head of the State and the elected Government of the State.
- States have urged the Supreme Court to declare the ‘inaction, omission, delay and failure to comply with the constitutional mandate by the Governor’ as illegal and arbitrary.
- States have quoted the Supreme Court’s observations, that the phrase “as soon as possible” in Article 200 of the Constitution contains significant “constitutional content” would have driven into them a sense of immediacy in considering Bills.
- Here, the Court meant that it would be constitutionally impermissible for Governors to indefinitely hold on to Bills without conveying a decision.
Constitutional Provisions related to the Governor
- Article 154: The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
- Article 163 (1): There shall be a council of ministers with the chief minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions at his discretion.
- Article 163 (2): 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 in question on the ground that he ought or ought not to have acted in his discretion.
Power of Governor vis-a-vis legislature under Article 200
The Constitution under Article 200 provides certain options for the Governor to exercise when a Bill reaches him from the Assembly. Article 200 of the Constitution casts a duty on the Governor of a State by requiring that he “shall declare either that he assents to the Bill or that he withholds assent or that he reserves the Bill for the consideration of the President.
There are four possible scenarios:
- Assent: He may give assent.
- Reconsider: He can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it.
- Reserve: The third option is to reserve the Bill for the consideration of the President.
- Withhold: The fourth option, of course, is to withhold the assent.
Governor’s Constitutional and Situational Discretion
Constitutional Discretion
- Reservation of a Bill for the consideration of the President (Articles 200 and 201).
- Recommendation for the imposition of the President’s Rule in the State (Article 356).
- While exercising his functions as the administrator of an adjoining Union territory (in case of an additional charge).
- Special responsibility for 5th and 6th schedule areas.
- Seeking information from the chief minister with regard to the administrative and legislative matters of the State.
Situational discretion
- Appointment of the chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
- Dismissal of the Council of Ministers when it cannot prove the confidence of the state legislative assembly.
- Dissolution of the state legislative assembly if the council of ministers has lost its majority.
ISSUES RAISED BY THE STATES
- Unconstitutional: The unreasonable mala fide exercise of power by the Governor to not consider Bills passed and forwarded to him by the State Legislature for his assent is regarded as unconstitutional.
- Delay in the Bills: Delay in approval of the Bills by the Governor is seen as the delay in legislation. Tamil Nadu petition also refers to Article 200 apart from 163, to say that the Governor has limited scope for action once a Bill is passed by an Assembly, and that “any delay or refusal” effectively disrupts parliamentary democracy.
- No fixed timeline: Since the Constitution does not fix any timeline for the Governor to decide the question of assent, Governor can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law-making by the legislatures.
- Misuse of discretionary powers:States allege that discretionary provision has often been misused by the Governor who acts on the behest of the union government which is opposed to the basic scheme of the Indian Constitution.
- Affects the rights of the people: The failure of the Governor to act, thus, affects the rights of the people of the State. The conduct of the Governor in keeping Bills pending for long and indefinite periods of time is also manifestly arbitrary and violates Article 14 of the Constitution. Additionally, it also defeats the rights of the people of the State under Article 21 of the Constitution by denying them the benefits of welfare legislation enacted by the State Assembly.
- Autonomy in universities: There are issues arising of governors’ hostility to amendment to university laws. Governors are under the misconception that they have a right to be chancellors.
THE WAY FORWARD:
- Constitutional amendments: There is a need for constitutional amendments to curtail the discretionary powers of the Governor and setting a timeline for assent to Bills in important matters.
- Autonomy to universities: It is time to have a prohibition on Governors being burdened with the role of chancellor of any university, as recommended by the Justice M.M. Punchhi Commission on Centre-State relations.
- Timely implementation of the Bill: Timely implementation of the Bills is important for timely implementation of policies and programmes envisaged by the Government. It ensures the welfare of the people.
- Non-partisan manner of Governor: The Governor should act independently, free from any political influence, while exercising his/her powers. For this, changes can be done in the Governor appointment process, such as, a collegium involving the CM, opposition, and the judiciary in the selection procedure of the Governor.
THE CONCLUSION:
Governors should leave no scope for criticism that they challenge elected regimes. The Governors should act in non-partisan manner befitting the high constitutional office they hold.
PREVIOUS YEAR QUESTIONS
Q.1 Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected Government of Delhi? Examine. (2018)
Q.2 Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022)
MAINS PRACTICE QUESTION
Q.1 Instances of delay in granting assent to Bills passed by the legislature by the Governors have come under the judicial scrutiny. Should the courts lay down a specific time period for the Governors to decide on the Bills? Argue.
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