Several features relating to the office of governor have attracted controversy. The mode of appointment of a governor and a governor’s powers and discretion are just some of the issues that have been debated over the years. The controversies over the governor’s role have become all the more prominent with different political parties holding power at the Centre and the states, as is often the case these days.
In recent times, the states of Tamil Nadu, Kerala, Punjab, and West Bengal have seen bitter confrontations between the centrally appointed governors and the elected state governments. One such issue relates to the delay in the governor’s decision on the bills passed by the state legislature and submitted to him for his assent. The Supreme Court gave its verdict on the issue in a writ petition filed by the DMK-led Tamil Nadu government under Article 32 of the Constitution.
The Case of Tamil Nadu against Governor
The Tamil Nadu state legislature had passed 12 bills between January 2020 and April 2023. The governor, R.N. Ravi, who had been appointed to the governor’s office in 2021, did not take the necessary action on any of the bills. At the end of October 2023, the state government of Tamil Nadu approached the Supreme Court with a writ petition challenging Governor R.N. Ravi’s inaction for such a long time.
The court issued notice to all the concerned in November 2023. In the meanwhile, the governor took action by simply withholding assent to 10 of the bills. The governor did not return them to the state legislature with any message or recommendations for reconsideration. In other words, he effectively vetoed them. When the state assembly approved the bills without any material change and submitted them once again to the governor, the governor did not give his assent but, exercising his discretion, reserved them for the consideration of the president; his reason was that these bills, if made into laws, could interfere with matters reserved for the Union, as many of them were concerned with university governance and could overlap areas of central policy.
The bills sought to empower the state government, instead of the governor, to appoint the vice chancellor of the universities, except the University of Madras; to include a government nominee on a selection panel for the appointment of the vice chancellor; to grant the government, instead of the chancellor, the power to inspect and enquire into university functioning; to include the finance secretary in the syndicate of all universities (except three government universities); and to establish a government Ayurveda university.
There were also other files and material that the governor was sitting upon without taking a decision, and these were also brought to the court’s notice in the petition.
The Tamil Nadu government’s petition charged the governor with “inaction, omission, delay, and failure” in performing his constitutional duty.
The petitioners argued that a ‘pocket veto’, in which a governor simply withheld his assent indefinitely, did not exist in the scheme of the Constitution of India. If the governor indefinitely withholds decision on bills, “governance will be paralysed”, said the petitioners.
Main issues The main issues raised by the case and taken up by the court were: (i) the courses of action available to the governor in exercise of his powers under Article 200 of the Constitution and whether the scheme of Article 200 allows the governor to exercise ‘absolute veto’ or ‘pocket veto’ of a bill; (ii) whether the governor can reserve a bill for the consideration of the president when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200; (iii) whether there is a time limit within which the governor is required to act under the provisions of Article 200; (iv) whether, under Article 200, the governor can only act in accordance with the aid and advice of the state council of ministers or if he is allowed to exercise discretion; (v) how the president under Article 201 is required to act once a bill has been reserved for his consideration by the governor; and (vi) whether the actions of the governor under Article 200 and the president under Article 201 could be subject to judicial review.
Article 200 in Chapter III, Part VI of the Constitution, under the heading The Legislative Procedure, is about ‘assent to bills’. It says:
“When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”
The Judgment
On April 8, 2025, a division bench of the Supreme Court comprising Justices J.B. Pardiwala and R. Mahadevan gave a unanimous decision that the action of the Tamil Nadu governor, R.N. Ravi, in withholding assent to 10 state legislative bills was “illegal” and “erroneous”.
In the process, two articles of the Indian Constitution, namely, Article 200 and Article 163, came to be scrutinised. Article 142, which gives the Supreme Court discretionary powers, also came into the picture.
The judges also laid down timelines for the governor and the president within which their decisions on state bills have to be communicated. The scope of judicial review, too, was expanded by the court, in that it now allows state governments to seek a writ of mandamus from the court if the timelines are not followed by the governor or the president in deciding on state bills submitted to them. (A writ of mandamus allows a competent court to direct a government official to discharge an official duty.)
Article 200 clarified After a state legislature passes a bill, the bill has to go before the governor for his consideration. With his assent the bill becomes a law.
Courses of action for the governor The court pointed out that, under Article 200, the governor has three options or courses of action when he receives the bill: (i) give assent, or (ii) withhold assent, or (iii) reserve the bill for the president’s consideration. The use of the word ‘or’ makes it clear that the options are mutually exclusive. However, there are provisos which have to be observed.
While there is no problem with the first option, i.e., giving assent to a bill, when the governor chooses the second option and decides not to assent to the bill (applicable only in the case of a non-money bill), the first proviso comes into play, according to the court. If the governor is not willing to assent to a bill, he should return the bill to the legislature for reconsideration with a message containing his recommendations. The court made it clear that the first proviso to Article 200 should be read in conjunction with the option of withholding of assent: “It is not an independent course of action and has to be mandatorily initiated by the governor in cases where the option of withholding of assent is to be exercised.“ It is up to the state legislature to accept or not accept the governor’s recommendations.
If the legislature passes the bill with or without amendment and presents it again to the governor, the governor “shall not withhold assent” to it. In other words, the governor now has no choice but to assent to the bill.
[The first proviso was the main concern in this case. The other proviso is that if the governor believes that the bill derogates from the powers of the high courts, he may reserve it for the president. The president would grant or withhold assent as per Article 201. The second proviso was not much relevant to the case under consideration.]
No pocket veto or absolute veto No timeframe is given for the governor to act in Article 200. As a result, what came to be known as a ‘pocket veto’ (a governor’s simply not taking a decision on a bill indefinitely) came to be practised.
The court pointed out that the use of the word ‘shall’ in Article 200 signifies that the governor’s options are constitutionally limited to those set out in the article, and there is no option of inaction. The first proviso, said the court, is inextricably attached to the option of withholding of assent. The governor cannot simply withhold assent; once he has chosen to withhold assent, he must return the bill with a message containing his recommendations to the assembly. In other words, ‘absolute veto’ is not allowed under Article 200.
Moreover, the expression ‘as soon as possible’ cannot be taken to imply an indefinite period of time; it is, in fact, an impetus to act expeditiously if the governor decides to withhold assent. It is not meant to give the governor a chance to indefinitely stall a decision on the bill, thus exercising a ‘pocket veto’.
That the governor has neither an absolute veto nor a pocket veto was made clear by the judges on the basis of earlier cases. In the State of Punjab vs Principal Secretary to the Governor of Punjab case (2023), the apex court had held that withholding assent is only valid if the governor returns the bill to the legislature. In the case of Union of India vs Valluri Basavaiah Chowdhary (1974), a Constitution Bench had observed that a bill “falls through unless the procedure indicated in the first proviso is followed”.
According to Justice Pardiwala, this reinforced the fact that withholding assent and the procedure in the first proviso were connected. It is to be interpreted in the following way: while a state legislature could delay reconsideration of a returned bill, the bill only lapses if the legislature chooses not to act. It is the state government which has the prerogative to reconsider, and not the governor. If the governor withholds assent, he has to return the bill “as soon as possible”; he does not have the discretionary power to withhold assent and keep the bill pending without returning it.
Re-submitted bill not to be reserved for the president The court pointed out that if the governor withholds assent to a bill and returns it to the legislature (as he must do), and the legislature reconsiders it and sends it back to the governor, he cannot reserve it for the consideration of the president. The governor, in withholding assent, has already exhausted an option under Article 200. Therefore, when the bill is re-submitted, he has to assent to it.
According to the court, the governor could reserve the reconsidered bill for the president if the re-submitted bill had changes which were not part of the recommendations made by the governor when he returned it, for then it would amount to a fresh bill. The court pointed out that the first proviso of Article 200 “cannot be construed as giving the state legislature the unfettered power to introduce changes to the bill which alter its very nature” when re-submitted. But if the re-submitted bill had no changes or only amendments based on the governor’s recommendations, the governor could not reserve it for the president. Article 200, in the phrase “shall not withhold assent”, makes it mandatory for the governor to assent to such bills. Hence, the conduct of Governor Ravi went against the provisions of the Constitution.
Timelines for action under Article 200 prescribed After reviewing the matter of delay on the part of the governor in reaching a decision on the bills submitted to him, the Supreme Court stated that some time limits must be set. The court also noted the recommendations of the Sarkaria Commission and the Punchhi Commission on the matter of timelines. It referred to the decision in the Keisham Meghachandra Singh vs Speaker, Manipur Legislative Assembly case (2020), where a time limit was laid down for the speaker to decide disqualification petitions. The apex court now gave the following directions regarding time limits for the governor to follow under Article 200:
(i) In case of either withholding of assent or reservation of the bill for the consideration of the president, upon the aid and advice of the state council of ministers, the governor is expected to take such an action forthwith, subject to a maximum period of one month.
(ii) In case of withholding of assent, contrary to the advice of the state council of ministers, the governor must return the bill together with a message within a maximum period of three months.
(iii) In case of reservation of bills for the consideration of the president contrary to the advice of the state council of ministers, the governor shall make such reservation within a maximum period of three months.
(iv) In the case of presentation of a bill after reconsideration in accordance with the first proviso, the governor must grant assent forthwith, subject to a maximum time limit of one month.
The court clarified that the prescription of a timeline did not amount to amendment of the Constitution as it does not involve any change to the procedure under Article 200. It is meant as a guideline for action in a timely manner, merely emphasising the need for urgency in the legislative processes. Moreover, delay on the part of the governor will not attract immediately prescribed or automatic consequences; the state may go to court about it, but the governor may successfully counter such a challenge by providing adequate explanation for the delay. The courts can assess whether the delay was reasonable.
Discretionary powers of the governor under Article 200 The general rule is that the governor exercises his functions under Article 200 as per the aid and advice tendered by the state council of ministers. Article 163(1) says that the governor is to act on the advice of the council of ministers in the exercise of his functions “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. As per Article 163(2), if any question arises whether a matter is or is not within the governor’s discretion, the decision of the governor in his discretion shall be final, and the validity of anything done by him in his discretion cannot be called into question on the ground that he ought or ought not to have acted on advice in that matter. However, this discretion is bound by what the Constitution decrees. In practice, the powers of the governor that can be called truly discretionary are few, examples being reporting to the president for imposing President’s Rule under Article 356, or selecting a chief minister in the situation of a hung assembly. The kind of discretionary power given to the governor under the Government of India Act of 1935 was deliberately discarded by the makers of the Constitution of India.
The governor, therefore, does not possess much discretion in the exercise of his functions under Article 200; it is mandatory for him to abide by the advice of the council of ministers in most cases.
Exceptions to the general rule Situations that signify exceptions to the general rule, in which the governor may go against the advice of the council of ministers and act in his own discretion under Article 200, are as follows:
(i) The governor must act in his discretion as per the second proviso to Article 200, i.e., if, in the opinion of the governor, a bill on becoming a law would derogate from the powers of the high court so as to endanger the position bestowed on that court by the Constitution, it has to be referred to the president, independent of the advice of the council of ministers.
(ii) The governor needs to exercise discretion in the case of bills that, under the Constitution, require the mandatory assent of the president for securing immunity or making the law enforceable, for example, bills relating to Articles 31A, 31C, 254(2), 288(2), and 360(4)(a)(ii).
(iii) Discretionary action on the governor’s part without ministerial advice is also called for in situations in which “the state council of ministers has disabled or disentitled itself”, or there is a “possibility of complete breakdown of the rule of law or by reason of peril to democracy/democratic principles”.
Article 31A protects certain laws dealing with the acquisition of property by the State regardless of what is provided by the Fundamental Rights under Articles 14 and 19.
Article 31C protects a law if it has been enacted to implement the Directive Principles of State Policy.
Article 254 relates to inconsistencies between laws made by Parliament and those made by state legislatures. Article 254(1) lays down that a valid law of the Union, with respect to a matter in the Concurrent List, shall prevail over a valid law of the state with respect to the same matter, to the extent of repugnancy (direct conflict between the provisions of the two laws). Article 254(2) is an exception to the above. It says that “Where a law made by the legislature of a state with respect to one of the matters enumerated in the Concurrent List, contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state shall, if it has been reserved for the consideration of the president and has received has assent therefrom, prevail in that state.
Article 288 addresses the exemption of certain authorities from state taxes on water and electricity, especially in cases involving inter-state water resources or power-generation, unless specifically allowed by the president or Parliament.
As per Article 360(4)(a)(ii), during Financial Emergency, the Union is entitled to direct the states that all money bills or other bills be reserved for the consideration of the president after they are passed by the state legislature.
Presidential action under Article 201 Once a bill is reserved for the consideration of the president under Article 200, the procedure to be followed is provided in Article 201 of the Constitution.
Article 201 When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to article 200 and, 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 it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.
Under Article 201, the president has two options: grant assent or withhold assent. If assent is withheld, as per the proviso to Article 201, the president may direct the governor to return the bill to the state legislature together with a message just as is mentioned in the first proviso to Article 200. The bill must then be reconsidered by the state legislature within six months in light of the president’s suggestions.
Once re-enacted, incorporating amendments or not, the bill again goes before the president for consideration. Article 201 does not make it mandatory for the president to assent to a bill placed before him after reconsideration by the state legislature. This is unlike Article 111 under which it is mandatory for the president to assent to a bill which has been reconsidered by Parliament and presented to him for the second time. It is, similarly, unlike Article 200 regarding re-submitted bills and the governor.) No timeline is prescribed in the Constitution for the president to act on a reserved bill. Even the expression ‘as soon as possible’ has not been used.
Court’s timeline for the president The court, in its April 2025 judgment, agreed that it may be difficult to place rigid deadlines for the “consideration” of a bill by the president, but, at the same time, it emphasised that inaction cannot be justified. It pointed out that the Union Ministry of Home Affairs had itself issued memoranda to all the ministries and departments of the central government in 2016 regarding expeditious disposal of queries relating to state bills reserved for the assent of the president. (These ministries/departments were required to express their views on issues relating to their fields.) The union government framed clear guidelines as regards the time limits and the manner in which references under Article 201 were expected to be disposed of.
It may be recalled that the Sarkaria Commission (1988), the National Commission to Review the Working of the Constitution (2002), and the Punchhi Commission (2010) were in favour of timelines for the decision by the governor to reserve bills for the president and for the president to decide on those bills. The Sarkaria Commission preferred the timelines to be established as conventions, whereas the Punchhi Commission was in favour of amendments to the Constitution to incorporate the timelines.
Saying that the “position of law is settled that even where no time-limit is prescribed for the exercise of any power under a statute, it should be exercised within a reasonable time”, the court pointed out that the “exercise of powers by the president under Article 201 cannot be said to be immune to this general principle of law". The court prescribed that the president should take a decision on the bills reserved for his consideration within a period of three months from the date of receiving the reference. If there is a delay beyond this period, the president must record appropriate reasons to be conveyed to the state concerned. At the same time, the states must co-operate by furnishing answers to the queries which may be raised and consider the suggestions made by the central government expeditiously.
No pocket veto or absolute veto The court asserted that the president as well as the governor, as the constitutional heads of the country and the state, respectively, are required to operate under a certain constitutional scheme based on the “fundamental principles of constitutional democracy”. Under this scheme, there is no place for a ‘pocket veto’ or an ‘absolute veto’. So, this kind of veto is not allowed under the Constitution. Reasons for withholding assent must be given and communicated to the state government concerned.
Even in the second round, in which the president may either grant assent or effectively terminate the bill by withholding assent, the president has to give reasons for withholding assent, clarifying the policy considerations on which such an action is taken. According to the court, “the decision to choose the option of withholding assent after having set into motion the proviso to Article 201 must not be misconstrued to mean that he is exercising an ‘absolute veto’ or a power of a similar nature.”
Moreover, any ‘withholding of assent’ under Article 201 must also only happen if the bill concerned relates to a specific provision of the Constitution that envisages the requirement of assent of the president in the first place or where there is repugnancy of the state legislation with a central legislation, e.g., under Articles 31A, 31C, 254(2), 288(2), 360(4)(i)(a), etc.
Constitutionality of bills to be assessed by courts under Article 143 If bills are reserved for the president’s consideration on the basis that they are unconstitutional, with content that endangers democracy, the president’s decision must be guided by the fact that the ultimate authority of interpreting the Constitution has been given to constitutional courts. The Sarkaria Commission and the Punchhi Commission were of the opinion that the president should seek the opinion of the Supreme Court under Article 143 in the case of bills that appear to be patently unconstitutional. The court, too, considers that it would be prudent for the president to make a reference to the Supreme Court under Article 143 of the Constitution. In fact, says the court, the union executive should not assume the role of the courts in determining the vires (scope of powers) of a bill and should, as a matter of practice, refer such a question to the Supreme Court under Article 143.
Article 143 is about the advisory jurisdiction of the Supreme Court. It states that if, at any time, it appears to the president that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the president its opinion thereon.
While the opinion of the Supreme Court under Article 143 is not binding on the president, who may or may not accept it, the court observed that “since the constitutionality of a bill is a matter which falls within the exclusive domain of the courts, the opinion rendered by the Supreme Court under Article 143 holds high persuasive value and should ordinarily be accepted by the legislature and the executive”.
Judicial review of governor’s and president’s actions The Supreme Court bench enlarged the scope of judicial review for a governor’s and president’s actions with regard to assent to state bills. State governments have been enabled to approach competent courts and seek a writ of mandamus if certain guidelines were not followed.
The court explained that judicial review and justiciability are two different concepts. In a written constitution, the power of judicial review is implicit with regard to any provision of the constitution unless a provision clearly excludes such review. However, justiciability relates to a particular area within the purview of the power of judicial review.
The court said that, under Articles 200 and 201, neither the governor nor the president enjoys immunity from judicial review. Referring to the Rameshwar Prasad vs Union of India case (2006), the bench asserted that under Article 361, which grants immunity to the constitutional heads, courts are not barred from examining the actions of the governor. The B.K. Pavitra vs Union of India case (2019) stated that the governor’s act of reserving a bill was beyond judicial scrutiny, but the April 2025 judgment disagreed with this view.
|
Earlier Verdicts of the Supreme Court on Governors’ Powers The discretionary space available to the governor has been clearly interpreted and limited by the Supreme Court through various judgments:
|
The court pointed out that the act of assent by the governor or the president with the aid and advice of the council of ministers may not be justiciable. However, when assent is withheld or a bill is reserved for the consideration of the president by the governor, using his discretion and contrary to the advice given by the state council of ministers, the governor’s action would be justiciable.
Considering the question of whether it was appropriate to review actions of the governor or the president that are primarily political in nature and, therefore, non-justiciable, the court referred to the S.R. Bommai vs Union of India case (1994), in which it was decided that legal questions disguised as political ones are still justiciable.
Judicial review of governor’s power under Article 200 If the governor reserves a bill under the second proviso of Article 200, he must record his reasons and clearly indicate the specific provisions that derogate from the powers of the high court. The state government can challenge the governor’s action in court if it considers that the provisions of the bill do not derogate from the powers of the high court. This question is purely of a legal nature and, therefore, completely justiciable, and the competent court would be fully authorised to approve or disapprove of such reservation by the governor. In the case of disapproval of the governor’s action, a writ of mandamus can be issued to the governor for appropriate action; in the case of approval of the governor’s action, the procedure under the second proviso to Article 200 would follow.
If the bill reserved for the president’s consideration is one that requires presidential assent as a condition before enactment as a law, or for overcoming repugnancy vis-a-vis a central law, the governor must indicate the reasons for such reservation. The state government can challenge the reservation if reasons are not given by the governor or on the ground that the reasons indicated are irrelevant, mala fide, arbitrary, unnecessary, or motivated by extraneous considerations. This matter would be completely justiciable, and the competent court can adjudicate and approve or disapprove of such reservation by the governor.
Where a bill is reserved on grounds of endangering democracy or democratic principles or on other exceptional grounds, then the governor would be expected to indicate the reasons for holding such an opinion, pointing out the specific provisions in this regard and the effect of such a bill becoming a law. The state government can challenge the governor’s action if the governor has not given reasons or on the ground that the reasons indicated are wholly irrelevant, mala fide, arbitrary, unnecessary, or motivated by extraneous considerations. This issue is justiciable and can be decided by constitutional courts.
It would be unconstitutional for the governor to reserve bills on the basis of personal dissatisfaction, political expediency, or any other extraneous or irrelevant considerations. Such a reservation is liable to be set aside.
In the case of the governor showing inaction in reaching a decision over a bill submitted to him, or exceeding the time limit set by the court, the state government can seek a writ of mandamus from a competent court against the governor. The governor may overcome the challenge by providing adequate explanation for the delay.
Judicial review of president’s power under Article 201 If the president withholds assent to bills reserved by the governor for his consideration, the state government can challenge the action before the Supreme Court.
If a state bill is reserved on the ground that assent of the president is required for the purpose of making the bill enforceable or securing some immunity, the withholding of assent by the president would be justiciable to the limited extent of exercise of such power in an arbitrary or mala fide manner. As the assent of the president in these categories of bills is of a political nature, the courts would act with self-restraint.
In the case of a state bill reserved by the governor in his discretion, on the ground that the bill appears to be patently unconstitutional, the withholding of assent by the president would, in ordinary circumstances, involve purely legal and constitutional questions and, therefore, be justiciable. It would be best for the president, in such cases, to refer the matter to the Supreme Court under Article 143 to obtain the court’s advisory opinion.
If the president, in deciding over a bill presented to him for assent under Article 201, shows inaction exceeding the time-limit prescribed by the court, the state government is free to seek a writ of mandamus from the Supreme Court.
Exercise of powers by Supreme Court under Article 142 Under Article 142 of the Constitution, the Supreme Court is empowered in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
The Supreme Court exercised its power under Article 142 and directly gave effect to the ten bills passed by the Tamil Nadu Legislative Assembly but stalled by the governor for much time. The court observed that bills, if kept pending for long despite their passage by the state legislature, militate against the sustenance of a representative democracy based on direct elections.
The court said that the governor’s conduct had been lacking in bona fides, and there were instances where the governor had failed to show due deference and respect to the judgments and directions of the Supreme Court. Under the circumstances, the court was not sure if a direction to the governor would have been sufficient. Therefore, it chose to act under Article 142.
The court declared that the Tamil Nadu governor’s action of reserving for the president’s consideration bills that had been re-submitted after being re-passed by the assembly was erroneous in law. It, therefore, set aside the governor’s action.
The court declared that the bills were to be considered “as deemed to have been assented on the date when they were presented to the governor after being reconsidered by the state legislature, i.e., on 18.11.2023”. As a result, the actions of the president in rejecting some of the bills and holding up some were also rendered void and of no effect. The court, thus, overrode the actions of the governor and the president.
Thus, for the first time, bills became laws without the formal assent and official signature of either the governor or the president.
[Following the order of the Supreme Court, the Tamil Nadu government issued a gazette on April 11, 2025 to the effect that the bills had been enacted.]
Analysis
Reactions to the Supreme Court’s Ruling on Governor’s Assent to Bills
The Supreme Court decision setting time limits for governors and the president to act on bills passed by state legislatures has received both praise and criticism from legal experts.
Supporting views Those supporting the verdict believe it strengthens democracy the protects state governments from unnecessary delays.
Former Secretary General of the Lok Sabha, P.D.T. Achary, said the ruling upholds the principles of federalism and provides state governments ruled by parties different from the party of the Centre, a clear constitutional remedy against inordinate delays by governors. He noted that the judgment is important because it “ensures that the enactment of crucial legislation is not indefinitely stalled”.
Senior advocate, Shadan Farsat observed: “By recognising automatic assent in cases where the governor fails to adhere to the prescribed timelines, the court has instituted a crucial safeguard against abuse of the office.” He also said it might help in similar cases where the union government delays judicial appointments.
Former Additional Solicitor General Bishwajit Bhattacharyya criticised the political misuse of the governor’s office, saying, “The apex court was constitutionally obligated to curb any arbitrary inaction of the Governor, and to set a time limit. The judgment is salutary and must be applauded.”
Former Supreme Court judge Justice K.M. Joseph said, “It would further the cause of democracy and federalism,” and added that delaying assent to bills was “a direct attack on democracy.”
However, some experts raised concerns about the court overstepping its role. Others have observed that the concept of separation of powers has been violated.
Constitutional expert and Supreme Court lawyer Vivek Narayan Sharma argued that “by mandating fixed periods under Article 200 and Article 201, the court effectively supplements the Constitution,” going beyond its authority. By the use of special powers to declare pending bill as approved, the court “entered the domain of the executive,” and this move amounts to “judicial legislation,” something the court has often avoided in the past.
The judgment appears to tilt the balance towards the elected state leadership and away from the Union (which appoints governors and is seen as influencing their decisions), reinforcing the federal principle.
It reinforces democratic principles by making it more difficult for unelected officials to override elected representatives of the people.
One may expect that, in future, openly partisan governors would not be appointed, and that governors would become more constructive constitutional heads.
Critical views It is the function of the legislature to enact laws, and it is for the executive to give or withhold assent (a power vested in governor/president). These lines seem to have been blurred by the court stepping in to grant approval to bills through judicial order.
The apex court technically had the power to use Article 142. No one has questioned its use in matters such as ordering the release of a detainee whose rights were violated by the inordinate delay of the executive in reaching a decision. However, its use in the present case has raised issues of ‘judicial overreach’; the judicial intervention has effectively nullified the decision of another constitutional functionary, namely, the President of India, who had withheld assent to seven of the ten bills.
According to critics, the court seems to have put itself above the highest executive authority, the president.
According to a political analyst, it was “unprecedented” that the court deemed bills to have been assented from the date they were submitted, in the process bypassing the constitutional process. The “move can be perceived as a breach of the horizontal division of powers among the organs of the government”. The court did not stop at declaring the governor’s actions illegal—which would have been an essential aspect of judicial review—but went beyond that to fix the situation itself.
Though the judges asserted that the Constitution was not being amended by them in declaring timelines for the governor and president, and that it was just an effort to “curtail arbitrary inaction”, critics think it is an amendment by ‘judicial fiat’ as the Constitution itself had left the matter open, indicating flexibility.
There is some fear that litigation might increase as a consequence of the judgment. Judicial intervention might be expected to be the norm rather than political action and compromise.
Questions have also been raised about a two-judge bench whereas major constitutional issues ought to be heard by a constitutional bench of at least five judges as per Article 145(3). This case, dealing with the powers of the Union and states, as well as the roles of the governor and president, clearly needed a larger bench. However, there is precedent where benches smaller than five judges have decided cases with significant constitutional bearings.
While the judgment empowers elected governments at the state level and emphasises that inaction or politicking should not be allowed to adversely affect constitutional processes, it also expands judicial power, allowing the judiciary to intervene more in governance.
© Spectrum Books Pvt Ltd.
