New Delhi: Earlier this week, the Supreme Court reshaped a Governor’s powers by prescribing timelines to decide state bills presented for consideration. In the same significant judgment, uploaded Friday night, the court, for the first time, also set a three-month timeframe for the President to act on bills sent to him/her by the Governor in case the latter finds a state legislation to be repugnant to a central law.
A bench of Justices J.B. Pardiwala and R. Mahadevan read the timelines into Article 201 of the Constitution, under which the President has two options once a bill is referred to him/her by a Governor for consideration. The options are either to grant or withhold assent.
A Governor refers a state bill to the President in exercise of the powers given in Article 200. This is done only when the bill is repugnant to a central law.
The court also went on to hold that in case the President concludes that the state bill is contrary to a central legislation, then, as a measure of prudence, he/she ought to make a reference to the top court in exercise of powers under Article 143 of the Constitution.
This is because the Constitution empowers the top court to adjudicate upon questions of constitutionality and legality of an executive or legislative action.
In view of several persistent tussles between Centre-appointed Governors in opposition-ruled states and the party in power there, the top court in its judgment delivered on 8 April set out deadlines for Governors.
This was done in the backdrop of the dispute between the Tamil Nadu government and Governor R.N. Ravi, with the former claiming that the nominal head appointed by the Centre in the state had caused administrative paralysis by sitting over crucial legislations.
Under Article 200, a Governor has three options when he/she receives a bill for consideration from the state legislature: to approve or refer it back to the state legislature, to approve in case the state sends it after reconsideration or reiteration, or in case of repugnance to a central law, refer it to the President.
Fixing a timeline for Governors, the bench said in case of withholding assent on a bill and reserving it for the President with the aid and advice of the council of ministers, the maximum period would be one month.
In case the Governor decided to withhold assent without the aid and advice of the council of ministers, the bills must be returned to the assembly within three months, it said.
In case of presentation of a bill after reconsideration by the state assembly, the bills have to be given assent by the Governor within a period of one month, the court ruled.
SC’s observations
The SC bench in its order went a step further by binding the President to follow a deadline regarding state bills. As is the case in Article 200, Article 201 does not specify any time-frame for the President to decide the reference of a bill made to him/her by a Governor.
Taking note of this, which in the bench’s view has led to “differences in Centre-State relations over the years”, the court said, “There is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of his functions under Article 201.”
It deciphered the said Article’s language and observed: “The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill.”
In terms of the constitutional scheme, the President cannot withhold the assent arbitrarily and must furnish reasons for it, which shall be communicated to the Governor.
Fixing of a timeframe, the court opined, is aligned to the settled position of law, which holds that where there is no time-limit prescribed for the exercise of any power under a statute, it should be done within a reasonable time period.
“The exercise of powers by the President under Article 201 cannot be said to be immune to this general principle of law,” the bench said.
It then referred to the Sarkaria Commission, which recommended adoption of “definite timelines” to facilitate efficient disposal of references under Article 201. It was reiterated by the Punchhi Commission as well, the bench noted.
The Sarkaria Commission headed by former Supreme Court judge Justice R.S. Sarkaria was set up in 1983 to review the working of the existing arrangements between the Union and the States. In 2007, the Punchhi Commission under former Chief Justice of India Justice M.M. Punchhi submitted a report on the same issue.
‘No scope for unnecessary delay on part of President’
The top court also referred to two office memorandums (OMs) issued by the Union Ministry of Home Affairs on 4 February, 2016, to all ministries/departments of the Government of India regarding the “expeditious disposal of state bills reserved for the assent of the President”.
The judgement said that “it becomes clear upon the perusal of the guidelines that in recognition of the urgent and important nature of Article 201, the Central Government has framed clear guidelines as regards the time limits and the manner in which references under Article 201 are expected to be disposed of”, and that “the factum of its (OMs) existence and acceptance reveals that the requirement of expeditious or even strict time-bound action would be consistent with the aims and objects of Article 201”.
“Keeping in mind the expedient nature of the provision and having regard to the reports of Sarkaria and Puncchi Commissions, as well as the memorandum dated 04.02.2016 issued by the Ministry of Home Affairs, we prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received,” the bench said.
In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the state concerned, it added.
While the language of Article 201 does not provide for any timelines within which the President is required to act, the absence of a time-limit cannot be construed as indicating that the discharge of functions by the President under the said Article can be done without due deference to the important nature of the role they occupy as regards the legislative machinery of the state, the bench said.
Long and undue delays in the disposal of references by the President would have the effect of keeping the bill(s), which are an expression of the popular will embodied by the state legislature, in an indefinite and uncertain state of abeyance and fall foul of the basic constitutional principle that the exercise of a power must not be arbitrary and capricious, the bench added.
“The implications of inaction being of a serious nature and detrimental to the federal fabric of the Constitution, there should be no scope for unnecessary delay on part of the President under Article 201 as well,” the bench said.
The court said, “Although we are cognisant of the fact that in discharge of his powers under Article 201, the President is expected to ‘consider’ the bill and such ‘consideration’ may be difficult to be bound by strict timelines, yet it cannot be a ground to justify inaction.”
(Edited by Nida Fatima Siddiqui)
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