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THE CONTEXT: Tamil Nadu, Kerala and Punjab have approached the Supreme Court to decide a time-frame within which Governors have to either return or grant assent to Bills passed by Legislatures.
MORE ON THE NEWS
- Few States have approached the Supreme Court accusing their Governors of using a non-existent discretion to unreasonably delay the passing of crucial Bills into law.
- The Bills kept in pendency cover sectors such as public health, higher education, Lokayukta and cooperative societies.
- States mandate that the Governor is delaying the Bills by neither assenting nor returning them. It said the Governor has positioned himself as a “political rival” who has caused a “constitutional deadlock” by simply delaying the Bills for months together.
THE PROCESS OF GRANTING ASSENT
- Article 200 of the Constitution covers the options before the Governor when a Bill passed by both Houses of the Legislature is presented to him.
- Article says the Governor could either declare his assent to the Bill or withhold the assent if it is not a Money Bill or reserve the law for the consideration of the President if he thinks the Bill derogates from or endangers the power of judicial review of the High Court.
- In case the Governor chooses to withhold assent, he should return the Bill “as soon as possible” with a message requesting the Legislative Assembly to reconsider the proposed law or any specified provisions or suggest amendments.
- The Assembly would reconsider and pass the Bill, and this time, the Governor should not withhold his assent.
- In short, the constitutional head of the State would adhere to the considered decision of the elected representatives of the people.
DISCRETION OF THE GOVERNOR
- The Article 200 is thus act as “saving clause” that retains the discretion over the fate of the Bill solely in the hands of the State Cabinet.
- Article 163 makes it clear that the Governor is not expected to act independently. The assent or return of the Bill does not involve the discretion of individuals occupying the Governor’s post.
- The Shamsher Singh v. State of Punjab case verdict has held that as a formal head of the State a “Governor exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers except in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.”
CONSTITUENT ASSEMBLY DEBATE ON DISCRETION OF GOVERNORS
- Earlier it was thought that the Governor’s exercise of discretion would act as a “potential check on disruptive legislative tendencies” by States.
- Governors did have a discretion to return Bills before the first proviso in the draft Article 175 (now Article 200). This was amended by the Constituent Assembly in 1949.
- But, Dr. B. R. Ambedkar, while introducing the amended proviso, said “in a responsible government there can be no room for the Governor acting on discretion”.
- T. Krishnamachari, a Constituent Assembly member from Madras and later Finance Minister, approved of the amendment, saying “the Governor cannot act on his own, he can only act on the advice of the Council of Ministers’’.
- Krishnamachari explained that if the Bill passed by the Legislative Assembly needs modification, the government uses the Governor to return the Bill to the Lower House as quickly as possible for re-legislation.
TIME LIMIT FOR RETURNING THE BILL
- The Article 200 says that Bill should be returned “as soon as possible”. However, there is no definition of the term in Constitution that leads to ambiguity and delay in legislation.
- The States have urged the court to interpret the phrase in the proviso and fix a time limit by which Governors should assent or return a Bill.
- The Supreme Court in its 1972 judgment in Durga Pada Ghosh versus State of West Bengal has interpreted “as soon as possible” mean “as early as practicable without avoidable delay”.
- The 1988 Sarkaria Commission report on Centre-State relations had suggested consultation with the Governor while drafting the Bill and fixing a deadline for its disposal.
- Retired Justice Rohinton F. Nariman, in his 2020 judgment in the Keisham Megha Chandra Singh case, said a ‘reasonable time’ would mean three months.
THE WAY FORWARD
- Code of Conduct: There is a need to frame a ‘Code of Conduct’ that should prescribe certain ‘norms and principles’ that should guide the Governor’s discretion and constitutional mandate.
- Define the term ‘as soon as possible’ in Article 200: There is a need to define the term ‘’as soon as possible” in the Article 200 in a structured manner to avoid any further conflict and any further delay in legislation.
- Implement recommendation of Punchhi Commission : Punchhi commission has recommended that 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. National Commission to Review the Working of the Constitution (NCRWC) has laid down a time-limit of four months within which the Governor should take a decision whether to grant assent or reserve it for the consideration of the President.
The Governors are the constitutional heads at the state level and hence they cannot usurp the power of the elected governments. Thus, the inactions of the Governors vis-à-vis Bills presented to them violate the constitutional scheme of federalism and democracy.
PREVIOUS YEAR QUESTIONS
Q) Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected Government of Delhi? Examine. (2018)
Q) 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) Is there a need to rethink over the discretionary powers of the Governor to ensure cooperative federalism? Argue.
REFER TO MAINS FOCUS ARTICLE FOR MORE:Spread the Word