Context

The State of Tamil Nadu has been witnessing a confrontation between the elected government and the State Governor on the question of giving assent to the National Eligibility cum Entrance Test (NEET) Bill passed by the State Assembly.

Position of Governor in Constitutional setup in India:

• Appointee of the President: The Governor is an appointee of the President, which means the Union government.
• Although Article 154(1) of the Constitution vests in the Governor the executive power of the State, he is required to exercise that power in accordance with the Constitution.
• In other words, the Governor can act only on the aid and advice of the Council of Ministers.
• It is a settled constitutional position that the Governor is only a constitutional head and the executive power of the State is exercised by the Council of Ministers.
• In Shamsher Singh vs State of Punjab (1974), the Supreme Court had clearly affirmed this position.
• Dr. Ambedkar explained the position of the Governor in the Constituent Assembly as follows: “The Governor under the Constitution has no functions which he can discharge by himself: no functions at all.”
• The Sarkaria Commission restates this position in its report, “it is a well-recognized principle that so long as the council of ministers enjoys [the] confidence of the Assembly its advice in these matters, unless patently unconstitutional, must be deemed as binding on the governor”.
• In 2016, a five-judge constitution Bench of the Supreme Court (the Nabam Rebia case) reaffirmed the above position on the governors’ powers in our constitutional setup.

What exactly are the options before the Governor in the matter of giving assent to a Bill passed by the Assembly?

• Assent of the Governor or the President is necessary for a Bill to become law.
• Four options: Article 200 of the Constitution provides for four alternative courses of action for a Governor when a Bill after being passed by the legislature is presented to him for his assent.
• 1] The Governor can give his assent straightaway.
• 2] The Governor can withhold his assent.
• 3] He may also reserve it for the consideration of the President, in which case the assent is given or withheld by the President.
• 4] The fourth option is to return the Bill to the legislature with the request that it may reconsider the Bill or any particular provision of the Bill.
• When such a message is received from the Governor, the legislature is required to reconsider his recommendations quickly.
• However, if the legislature again passes the Bill without accepting any of the amendments suggested by the Governor he is constitutionally bound to give assent to the Bill.

Issue of the NEET Bill

• The Governor of Tamil Nadu returned the NEET Bill to the Assembly for reconsideration of the Bill.
• Accordingly, the Assembly held a special session in the first week of February and passed it again and presented it to the Governor for his assent.
• He has not assented to the Bill so far.
• While it is true that Article 200 does not lay down any time frame for the Governor to take action under this Article, it is imperative on the part of the Governor to exercise one of the options contained therein.
• The option mentioned in Article 200 is meant to be exercised by the Governor without delay.
• Non-action is not an option: Although Article 200 does not say by what time the Governor should take the next step, it clearly and unambiguously states the options for him to exercise.
• It is obvious that if the Governor does not exercise any of those options he will not be acting in conformity with the Constitution because non-action is not an option contained in Article 200.
• In fact, the words used in Article 200 “… it shall be presented to the governor and the governor shall declare….” indicates that the Constitution requires the Governor to act without delay upon the presentation of the Bill.
• In view of the mandatory provision in the proviso to Article 200, it is clear that the Constitution does not permit the Governor to sit on a Bill after the Assembly re-submits it to him after reconsideration.

Takeaways

• Giving assent to a Bill passed by the legislature is a part of the legislative process and not of the executive power.
•  Withholding of assent, though an option, is not normally exercised by Governors because it will be an extremely unpopular step.
• Besides, withholding assent to a Bill by the Governor, an appointee of the President, neutralises the entire legislative exercise by an elected legislature enjoying the support of the people.
• This option is undemocratic and essentially against federalism. 
• Practices in UK and Australia: In the United Kingdom it is unconstitutional for the monarch to refuse to assent to a Bill passed by Parliament.
• Similarly, in Australia, refusal of assent to a Bill by the crown is considered repugnant to the federal system.

Conclusion

In our constitutional system, the Governor or the President is not personally responsible for their acts. But when a Governor does not take any decision on a Bill which is put up for his assent, he is not acting in exercise and performance of the duties cast upon him.

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