New Delhi: If a governor decides to withhold assent to a bill, then he or she has to return the bill to the legislature for reconsideration, the Supreme Court has held.
In a case involving the Punjab government and the state governor, a three-judge bench led by Chief Justice D.Y. Chandrachud in its judgment delivered on 10 November said, the expression “as soon as possible” in proviso one of Article 200 of the Constitution mandates a governor to either give his assent to a bill or return it to the legislature expeditiously.
The Bhagwant Mann-led Aam Aadmi Party (AAP) government in Punjab and Governor Banwarilal Purohit have been in a standoff on the approval of bills.
“The expression ‘as soon as possible’ is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever,” read the judgment, the full text of which was uploaded on the SC website Thursday evening.
The apex court’s interpretation of Article 200 of the Constitution in the context of governors withholding assent comes at a juncture when it is already hearing petitions filed by Opposition-ruled states against their governors — nominated by the central government — for not approving “crucial bills.”
These states include Kerala, Tamil Nadu and Telangana. The Supreme Court has already taken note of the petitions and issued notices to the central government as well as the respective governor’s offices.
The judgment is likely to have a bearing on these pending cases. In the case of Tamil Nadu, the governor has withheld assent to some bills, but not returned them to the legislature.
What does Article 200 say
According to Article 200, a governor can either grant assent, withhold assent, or reserve the bill for the President’s consideration when he or she receives a bill from the state government.
The first proviso of Article 200 reads: “Provided that the Governor may, as soon as possible, after the presentation to him of the Bill for assent, return the Bill, if it is not a Money Bill, together with a message requesting that the House or Houses would reconsider the Bill or any specific provisions of the Bill and in particular consider the desirability of introducing any such amendments as he may recommend in his message.”
It adds: “When a Bill is so returned, the House of Houses shall reconsider the Bill accordingly. And if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”
The second proviso envisages a situation where the governor decides to refer the bill for the president’s consideration.
This can be done when the bill “derogates from the powers of the High Court as to endanger the position”, which the High Court is designed to fill by the Constitution.
According to the SC verdict, the first proviso of Article 200 does not pertain to the first option before a governor when a bill is sent to him, or her (to give assent to the Bill) and the third (where the governor reserves the bill for consideration of the president).
The proviso, the judgment added, is attached to the second option where the Governor withholds assent. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the governor under the first proviso, it said.
And, by the mandate of this proviso, a governor has to send back the bill, where it is not a money bill, to the legislature with a message, the judgment added.
“If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor, as an unelected head of the state, would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse,” the court noted.
Such a course of action would be contrary to the fundamental principles of constitutional democracy based on the Parliamentary pattern of governance, the court added.
The governor’s role
According to the court, the governor’s message, while returning the bill, may request the legislature to reconsider the entirety of the bill, or an infirmity, in case of any, or express desirability of introducing an amendment to cure an infirmity or deficiency in the bill.
Upon a reiteration, the court said, the governor shall not withhold assent, according to the first proviso.
This, the Supreme Court held, shows that the role ascribed by the first proviso to the governor is recommendatory in nature and does not bind the state legislature.
Such an interpretation, the court said, is compatible with the fundamental tenet of a parliamentary form of government, where the power to enact legislation is entrusted to the elected representatives of the people.
As a guiding statesman, the governor may recommend reconsideration of a bill, the court said, adding, however, the ultimate decision on whether or not to accept the advice is with the legislature alone.
This, it observed, is clear in the language of the first proviso, which uses the expression “if the Bill is passed again, with or without amendments”.
Under a harmonious interpretation of the substantive part of Article 200 and the first proviso, a governor must mandatorily follow the course of action, which is to return the bill to the legislature.
The words “as soon as possible,” the court said, are significant as they convey the constitutional imperative of expedition.
“The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation, which squarely lies in the domain of the state legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever,” the judgment held.
As an unelected head of the state, the governor is entrusted with certain constitutional powers, but the same cannot be used to thwart the normal course of lawmaking by the state legislature, it highlighted.
“If the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration,” the court added.
(Edited by Richa Mishra)
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