New Delhi: Underlining constitutional boundaries for both judiciary and legislative institutions, the Supreme Court Thursday said a Governor or President cannot be compelled to act on a Bill within a fixed number of days as it would not just be “antithetical” to the spirit of the Constitution, but also to the doctrine of separation of powers.
To set a judicial mandate for the two Constitutional posts would amount to usurpation of powers exclusively meant for the gubernatorial positions, it said.
A five-judge bench led by Chief Justice B.R. Gavai also said that a Bill does not automatically become a law if the Governor or the President delay action on it.
Further, the court said that any action taken on a Bill was non-justiciable and judicial intervention can only be sought when it becomes a law. However, the bench clarified that the Governor had the option to refer a Bill to the President even after it is returned the second time following a reconsideration by the state legislature.
While affirming that the Governor had only three options to act on a Bill, the court advised those holding constitutional posts to engage in dialogue and reconciliation, instead of adopting an obstructionist approach in areas of public importance.
Why was reference made
The bench’s decision came on a Presidential Reference moved by the Centre in May, after a two-judge bench judgement involving the long-standing dispute between the Tamil Nadu government and the Governor over pendency of crucial Bills.
The issues decided in this judgement arose from Articles 200 and 201 of the Constitution. Article 200 contains three options to the Governor when a Bill is referred to him/her—grant assent, withhold assent, or refer the Bill to the President. Under the first proviso, a Governor may, as soon as possible, return the Bill, unless it’s a Money Bill, with a message to request the state assembly to reconsider any specified provisions.
Article 201 is regarding the President’s power to give assent, withhold assent or return a Bill.
Besides underscoring the Governor’s constructive role in the legislative process, the May judgement fixed strict timelines for the constitutional heads to act on Bills. Inaction within the prescribed timeline will result in a deemed assent by the Governor, the bench said. The judgement also bound the President to refer a Bill to the Supreme Court in case it was felt that the proposed law was contrary to a central legislation.
Advisory jurisdiction
Importantly, a reference is made under Article 143 to invoke the advisory jurisdiction of the Supreme Court. A pronouncement on the reference is an “authoritative opinion” and does not set aside an already awarded decree. However, a clarification of constitutional principles can aid the government for future and better governance.
The questions do not require this court to vacate, amend, or modify the final relief granted in the State of Tamil Nadu (supra), the bench said. Instead, at the most, it sought clarification on the propositions of law, which have ramifications for the governance of all states, beyond the parties that were before the court in the Tamil Nadu case.
On Thursday, the bench rejected preliminary objections raised to the reference petition by those who opposed contending that it was a malafide and an attempt to seek a review of the judgement in the Tamil Nadu case.
Describing it as a “functional reference” sought by the country’s highest constitutional functionary, the bench said it was giving the opinion as part of its institutional responsibility.
The court felt it was imperative to answer the questions of “public importance” as confusion persists over the functions of the Governor and the President, arising due to the Tamil Nadu judgement. Not answering them would impede smooth functioning of the Constitution, it added.
Can’t fix timelines
The decision undertook an elaborate discussion on the dialogic process envisioned under Articles 200 and 201 of the Constitution.
This process, the bench observed, is advisory, persuasive, deliberative, mediative, and consultative, a unique feature of the federal structure of governance countenanced in the Constitution. Federalism, it reminded, was part of the basic structure of the Constitution and any sort of deviation was impermissible.
It, therefore, said since the Constitution did not prescribe a “one-size-fits-all” timeline, for the courts to do so would amount to usurping the powers specifically assigned to the legislature. Hence, the bench said, the timeline part in the Tamil Nadu case should be seen as an obiter.
“Firstly, it prescribes a one-size-fits-all timeline, dehors the nature of the Bill and complexity of the issue. Secondly, at the expiry of this one-size-fits all timeline, it creates a right for judicial redressal, prima facie rendering the act of the Governor or President suspect upon the expiry of such timeline,” the bench reasoned.
Both, in the bench’s view, were uncalled for as they were neither envisioned when the “Constitution was adopted, nor they borne out of constitutional practice.”
The bench declined to consider the Ministry of Home Affairs (MHA) circulars that advised a timeline for the Governors in considering a Bill referred by the state assembly.
Limited judicial review
Resultantly, the bench answered in the negative the question of whether a Governor and President’s actions, specifically under Articles 200 and 201, were justiciable under all situations. To allow the judiciary to meddle in legislative procedure at the stage of the Governor initiating a dialogic process would be to “shatter the permeable walls that maintain this separation of powers,” it said.
However, the bench asserted that inaction that is prolonged, unexplained and indefinite, would certainly invite limited judicial scrutiny.
“This is not to say that the Governor is merely a rubber stamp, between a Bill becoming an Act. There is value, in his consideration, and thus, choice exercised between the three options under Article 200.”
“Hence, the court cannot supplant the Governor’s wisdom and enter a merits-review of decision.”
But where the Governor chooses to not act under the Constitution, without initiating the dialogic process, he/she frustrates the outcome of the Legislature’s functions and efforts, warranting the courts to exercise their limited judicial review power, it said.
In such circumstances, the bench said the courts are empowered to grant a form of a limited direction, to the Governor, to take action. On being satisfied, after perusal of records, a direction can be issued to the Governor under Article 200, without making any observations on the merits of the exercise of discretion.
Such a direction should not substitute the Governor’s role, but serve the purpose of asking him/her to exercise function, it added.
Governor’s discretionary power
The bench disagreed with the Tamil Nadu judgement’s opinion that the Governor could function only with the aid and advice of the Council of Ministers, even on taking action on a Bill.
It said the Governor under Article 200 is empowered to use discretion and that such an interpretation does not confer any unfettered powers. “In fact, it does not in any way deviate from the concept of a responsible constitutional government.”
The bench added that the Governor or the President cannot be relegated to a perfunctory role, or designated as a formal head comparable to the Crown in England. To accept this would be oversimplification of the Constitution’s complex scheme.
The Governor is the sole authority to reserve a Bill for the consideration of the President under Article 200, it said. In this context, the President’s role is to bind the Union as a cohesive unit, and thereby protecting and defending the Constitution.
To let a Governor function with the aid and advice of the Council of Ministers for performing its function under Article 200 would frustrate the operation of numerous provisions of this Constitution, including the President’s powers, the bench opined.
In view of its order that limited judicial intervention can be sought in case of delayed action, the bench said the Governor would be refrained from using discretionary power to frustrate a Bill in perpetuity.
Governor cannot hold Bill
In the backdrop of the Constitution’s federal nature, the court drew broad contours of power for the Governor and rejected the Centre’s contention that there were four options available when it comes to taking action on a Bill. The fourth, which was a subject of dispute, according to the Centre, allowed the Governor to withhold assent to a Bill, without giving reasons and not returning it for a reconsideration. This, it argued, was under the first proviso of Article 200.
Nature of Indian federalism is not unidimensional and the states are entitled to determine the legislative policy within the legislative spheres, constitutionally allotted to them subject to the constitutional framework, the court said.
A reading of the substantive part of Article 200 and its first proviso clearly indicates that the Governor cannot withhold a Bill and has to return it to the state legislature, in case of unwillingness to give assent, for a reconsideration.
The Governor cannot withhold a Bill without following the dialogic process inherent in Article 200, which exemplifies the cooperative spirit of Indian federalism, and brings out different facets of the checks-and-balances model that the Constitution has envisaged, the court explained.
This interpretation, it said, aligned with the constitutional ethos, structure and is to be preferred over any other interpretation that empowers the Governor to withhold a Bill.
Referring Bill to President
The bench also interpreted the Article to broaden the Governor’s discretion when a Bill is returned after reconsideration. It said at that stage too, the Governor is left with two options—either to assent, or to refer it to the President for consideration.
“This power to reserve a Bill for the President’s consideration, is irrespective of whether the Bill is returned by the Legislature in its amended or unamended form.”
Argument that the Governor is bound to give assent when the Bill is returned after reconsideration would militate Article 200’s second proviso, which the court said contemplates President’s consideration, specifically when a Bill may potentially affect the powers of the High Court, its position or function, within the constitutional scheme.
The bench declined to answer three questions included in the reference— what kind of benches should hear cases concerning substantial questions of law involving the interpretation of the Constitution; under which jurisdiction should the top court resolve disputes between the Centre and states, and if the SC’s power under Article 142 is worded broadly. “These questions were irrelevant to the reference,” it said.
(Edited by Tony Rai)
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