Context

• In Tamil Nadu, the Governor forwarded the Bill for exemptio from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
• In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent.

What is Role of Governor in Legislature?

• Integral part: A Bill passed by the State Assembly becomes law only after it is assented to by the Governor.The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
• Established practice: In all democratic countries, similar provision exists in their constitutions.

What is the Power of Governor Vis-e-vis legislature?

• What Article 200 says: The Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly.
• There are four possible scenarios:

1. Assent: He may give assent.
2. 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.
3. Reserve: The third option is to reserve the Bill for the consideration of the President.
4. Withhold: The fourth option, of course, is to withhold the assent.

What are the Legislative practice in other democracies ?

• UK: The royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter.
• No power of veto: By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
• USA: In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.

Why there is an ambiguity over the role of governors in India?

• Role of the governor: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
• Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
• Constitution is silent: the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
• No remedy: The Indian Constitution, however, does not provide any such remedy as that of USA or UK . The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.

What is the Court mandated legislative practice?

• According to Article 361: The Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings. It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill.
• Reasons: Governor while declaring that he withholds assent will have to disclose the reason for such refusal.
• No Arbitrary actions: Being a high constitutional authority, the Governor cannot act in an arbitrary manner
• Unconstitutional: If the grounds for refusal disclose mala fide or extraneous considerations or ultravires, the Governor’s action of refusal could be struck down as unconstitutional.
• Rameshwar Prasad and Others. vs Union of India case: The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.
• Pocket veto: since the Constitution does not fix any timeline for the Governor to decide the question of assent, he 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.

Conclusion

• The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.

Mains Question

Q.Governor is the connecting link between state and central executive. Discuss the duties of Governor with respect to state legislature? Why Governor tilt more towards centre than state?

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