Central Idea

• The Tamil Nadu Governor’s recent statement implying that he would not give assent to a Bill passed by the legislature if it transgresses constitutional limits has resulted in the Tamil Nadu Assembly passing a resolution requesting the President of India to issue directions to the Governor to function within constitutional limits.

Who is Governor?

• Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
• Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
• Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including the National Capital Territory of Delhi.
• Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

New Constitutional Development

• Passing a resolution by the Assembly requesting the President of India to ensure that the Governor functions within the Constitution is a new constitutional development.

What are the relevant articles?

• Article 355: Article 355 of the Constitution states that it is the duty of the Union to ensure that every State’s government is carried out according to the Constitution.
• R. Ambedkar on Article 355: While the general meaning and purpose of Article 355 was explained by B.R. Ambedkar in the Constituent Assembly, the Constitution’s concepts and doctrines have been interpreted and reinterpreted to meet society’s changing needs
• Article 200: Although Article 200 provides options to the Governor when a Bill is presented to him after being passed by the legislature, withholding assent is not an option given by the Constitution.

Governor’s Discretionary Powers and the confusion of Withholding assent

• Options to the Governor: Article 200 provides options to the Governor when a Bill is presented to him after being passed by the legislature.
• These options are:

1. To give assent;
2. To withhold assent;
3. To send it back to the Assembly to reconsider it; or
4. To send the Bill to the President for his consideration.

• Idea of the Third option: In case the Assembly reconsiders the Bill as per the request of the Governor under the third option, he has to give assent even if the Assembly passes it again without accepting any of the suggestions of the Governor.
• One of the options is required to be exercised:  It is only logical to think that when the Constitution gives certain options to the Governor, he is required to exercise one of them.
• Sitting on the bill goes against the constitutional direction: Since sitting on a Bill passed by the Assembly is not an option given by the Constitution, the Governor, by doing so, is only acting against constitutional direction. A judicial pronouncement on this matter is needed to eliminate the confusion.

The issue of justiciability

Whether the process of assent by the Governor is subject to judicial review?

• Not justiciable: According to D.D. Basu, quoting judgments of the Supreme Court, it is not justiciable.
• For instance, Purushothaman Namboothiri vs State of Kerala (1962): In this case the court held that a Bill which is pending with the Governor does not lapse on the dissolution of the Assembly, but this judgment did not deal with the justiciability of the process of assent.
• Hoechst Pharmaceuticals Ltd. And vs State Of Bihar And Others (1983): In this case the court dealt with the power of the Governor to reserve a Bill for the consideration of the President, and held that the court cannot go into the question of whether it was necessary for the Governor to reserve the Bill for the consideration of the President.
• Government can challenge the inaction of the Governor in a court of law: The issue that is agitating State governments is the non-decision/indecision on the part of the Governor on a Bill passed by the Assembly. Therefore, the government can challenge the inaction of the Governor in a court of law, and the answer seems to be in the affirmative.

Way ahead

• Ensuring constitutional principles are upheld: The state governments and the Governor’s office should work together to establish a mutual understanding of the constitutional provisions and procedures for assent to a bill, with a focus on expediting the process while ensuring constitutional principles are upheld.
• Avoiding confrontation and legal battles: In case of disagreements between the state government and the Governor, the matter should be resolved through dialogue and mutual agreement, rather than resorting to confrontation and legal battles.
• Clarity on the issues of justifiability: The Supreme Court could provide clarity on the issue of justiciability of the Governor’s role in assent to a bill, while keeping in mind the constitutional provisions and the principles of federalism.
• Judicious use of discretionary powers: The Governor should exercise his discretionary powers judiciously and in line with constitutional provisions, without delaying or withholding assent to a bill without any valid reason.
• Transparent and consultative mechanism: The state government should ensure that bills are passed in a transparent and consultative manner, and the Governor should give due consideration to the views and opinions of all stakeholders before exercising his discretion.
• Promoting cooperative federalism: There should be a greater emphasis on promoting cooperative federalism, where the Centre, states, and governors work together in a spirit of collaboration and cooperation, while ensuring the protection of the Constitution and the rights of all citizens.

Conclusion

• The framers of the Constitution would never have imagined that Governors would sit on Bills indefinitely without exercising any of the options given in Article 200. This is a new development which needs new solutions within the framework of the Constitution. So, it falls to the Supreme Court to fix a reasonable time frame for Governors to take a decision on a Bill passed by the Assembly in the larger interest of federalism in the country.

Mains question

1. Passing a resolution by the Assembly requesting the President of India to ensure that the Governor functions within the Constitution is a new constitutional development. In the light of the statement discuss the constitutionality of role of Governor in withholding assent to a bill passed by a state legislature. Suggest a way for this legal battle.

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