GS Paper II

News Excerpt:

The Supreme Court agrees with the Tamil Nadu government’s argument that the Constitution does not provide the Governor the “discretion” to withhold the 10 bills it re-enacted or refer them to the President.

About the news:

• Tamil Nadu Governor has “withheld” assent for certain bills passed by the Tamil Nadu Legislative Assembly.
• This follows the Supreme Court expressing “serious concern” over inaction by the Governor on bills presented for his assent.
• The court expressed displeasure on similar delays by Governors of Telangana, Punjab and Kerala.
• The SC has also sought a response from Kerala Governor on a petition by the state government that he is holding back bills.

Powers of Governor:

Concerning “reservation of bill”:

• Sitting on a bill passed by the Assembly is not an option given by the Constitution. By doing so, a Governor is acting against the constitutional direction.
• However, the Governor can reserve a bill and not grant assent in certain circumstances. This includes if the bill is -
• against the provisions of the Constitution,
• opposed to the Directive Principles of State Policy (DPSP),
• against the larger interest of the country,
• of grave national importance, or
• deals with compulsory acquisition of property under Article 31A of the Constitution.
• those which reduce the powers of the High Court.
• bills on concurrent list subjects that are repugnant to a Union law based on ministerial advice.

Concerning “withholding assent”:

• The situation of “withholding assent” may arise in case of a Private Members’ Bill (any Member of State Legislature other than a Minister) passed by the state legislature, which the council of ministers do not want to be enacted into law.
• In such an instance, the council of ministers would advise the Governor to “withhold assent”.
• However, this is an unlikely scenario as the council of ministers who enjoy a majority in the legislative assembly would not allow the passage of such a bill.
• Secondly, suppose the incumbent government whose bill has been passed by the legislature falls or resigns before it is assented to by the Governor.
• In that case, the new council may advise the Governor to “withhold assent”.

Concerning “returning the bill”:

• The return of any bill to the state legislature for reconsideration is also to be done based on ministerial advice.
• Governors in the past have exercised their discretion in returning bills, like the Tamil Nadu Governor with respect to the bill prohibiting online gambling.
• However, the Governor shall assent to such a bill if it is passed again by the state legislature.

Constitutional status:

• Article 154:

• It states that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

• Article 200:

• • It gives four alternatives to the Governor when a bill is presented to him after a state legislative assembly (and the legislative council, wherever existent) passes it. The Governor can -
    • assent to the bill,
    • withhold assent,
    • send it back to the assembly to reconsider it, or
    • send it to the President for his/her consideration.

• Article 201:
• When a bill is reserved for the consideration of the President, s/he may assent to or withhold assent from the bill.
• The President may also direct the Governor to return the bill to the House or Houses of the Legislature of the State for reconsideration.

• Article 361:
• The Governor has complete immunity from court proceedings for any act done in the exercise of their powers.
• This provision poses a unique situation when a government may need to challenge a Governor's action of withholding assent to a Bill.
• In this case, the Governor should disclose the reason for such refusal since, being a high constitutional authority, they cannot act arbitrarily.

SC’s observation:

• The Governor must take action on bills before the matter goes to the apex court. Governors need to understand that they are not elected representatives of the people. Some self-reflection by Governors is necessary.
• The bills sent to the Governor for assent should be returned "as soon as possible" and not be delayed, causing Gubernatorial Procrastination and making state Legislative Assemblies wait indefinitely.
• Gubernatorial means relating to or connected with the post of Governor.
• Shamsher Singh case (1974): The SC held that the Governor does not exercise their discretionary powers while withholding assent or returning a bill to the state legislature. They are required to act as per the advice of the council of ministers.
• Rameshwar Prasad and Ors v. Union Of India and Anr: The SC held that the immunity granted by Article 361(1) does not take away the court's power to examine the validity of the Governor’s action.
• Thus, if the Governor's refusal to grant assent is unconstitutional, the Court can strike it down. 
• Nabam Rebia and Bamang Felix vs Dy.Speaker (2016): The SC clarified that a Governor’s discretion under Article 200 is limited to deciding whether a bill should be reserved for the President’s consideration. It emphasised that actions or inactions by the Governor regarding bill assent can be subject to judicial review.

Way Forward:

• The Governor's delay in giving assent to bills passed by the Assembly violates the state's constitutional obligation and hinders the functioning of the state government.
  • If the Governor persists in such behaviour, the state government can notify the President under Article 355 and seek appropriate instructions to ensure compliance with the Constitution.
• The drafters of the Constitution did not anticipate the Governors' inaction on bills under Article 200. 
  • It is clear from Article 200 that a Governor cannot postpone signing a bill.
  • To preserve the nation's federalism, the Supreme Court should provide a fair period of time for Governors to consider a bill enacted by the Assembly.

Prelims PYQ

Q. Which of the following are the discretionary powers given to the Governor of a State? (UPSC 2014)

1. Sending a report to the President of India for imposing the President’s rule
2. Appointing the Ministers
3. Reserving certain bills passed by the State Legislature for consideration of the President of India
4. Making the rules to conduct the business of the State Government

Select the correct answer using the code given below:

(a) 1 and 2 only

(b) 1 and 3 only

(c) 2, 3 and 4 only

(d) 1, 2, 3 and 4

Mains PYQ

Q. Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt.Governor and elected government of Delhi? Examine (UPSC 2018)

Q. Discuss the essential conditions for 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. (UPSC 2022)