Context: The Tamil Nadu state government has taken its concerns to the Supreme Court regarding the prolonged delay in the approval of Bills and Government orders by the Governor.

Point of Concern

• The present Writ Petition is being filed under Article 32 of the Constitution of India, to declare that the inaction, omission, delay and failure to comply with the constitutional mandate by the Governor.

• The petition seeks a direction to the Governor to clear Bills and files and Government orders within a specified timeframe.

Recent Instances of Withholding Assent

• Chhattisgarh (2020): The Chhattisgarh Governor withheld assent to a bill amending the Chhattisgarh Lokayukta Act, 2001.

• Tamil Nadu (2021): The Tamil Nadu Governor reserved a bill exempting state students from NEET medical entrance exams for the President’s consideration after a significant delay.

• Kerala (2023): Kerala’s Governor signed five bills into law but withheld assent to six others, citing concerns about their constitutionality and legality.

Related Constitutional Provisions 

• Under Article 200, the Governor may grant assent, withhold assent, return for reconsideration by the Legislature or reserve for the consideration of the President any Bill passed by the State legislature.

• There is no time frame fixed in the Constitution for any of these functions. 

• Governor may, as soon as possible return the Bill if it is not a Money Bill and, when a Bill is so returned, the House shall reconsider the Bill accordingly, and if the Bill is passed again by the House with or without amendment the Governor shall not withhold assent therefrom.

• The Constitution makes it mandatory that the Governor should reserve for the President’s consideration any Bill that seems to clip the wings of the High Court or undermine its functioning.

• Such a bill will not become a law without the President’s assent.

Critical Analysis 

• Omission from the Constitution: Section 75 of the Government of India Act, 1935, contained the words ‘in his discretion’ while referring to the Governor’s grant of assent to Bills. The phrase was consciously omitted when the Constitution was enacted.

• Views of Framers of the Constitution: The Constituent Assembly was of the opinion that the states were indeed sovereign within their own domain, that the discretionary power, beyond the specific situations mentioned in the constitution, does not enable a governor to override the state government.

• Against Public Interest: A Bill is brought by the government when there is an urgent need for a law on a particular matter. So, if the governor does not take any action on it as per the constitution, he is actually harming the public interest.

• Against the Spirit of Constitution: Since not taking any decision indefinitely is not an option provided by the constitution, governors who do this are clearly acting in a manner that is not constitutionally sanctioned.

• SC Verdict: In Shamsher Singh v State of Punjab (1974) Supreme Court held that the governor does not enjoy any executive powers and that he can act only on the aid and advice of the council of ministers. In reality, executive powers are vested in the elected government, which is responsible to the legislature.

• Act in accordance with Council of Ministers: During the debate in the constituent assembly on the post of governor, Dr B.R. Ambedkar had clearly stated that the governor has no powers in our constitutional setup and needs to act only in accordance with the advice given by the council of ministers in the state. 

Legislation and the Governor

• Advisory Council: Article 163 establishes a council of ministers headed by the Chief Minister to aid and advise the Governor in performing their functions, except in specific discretionary cases.

• Bill Assent Process: Article 200 outlines the process for a bill passed by the Legislative Assembly of a State to be presented to the Governor for assent or other actions.

• Reservation of Bills: The Governor may reserve a bill for the President’s consideration if they believe it may infringe upon the powers of the High Court, as outlined in Article 201.

• Presidential Assent: Article 201 states that the President may assent to or withhold assent from a reserved bill.

• Constitutional Immunity: Under Article 361, Governors enjoy complete immunity from court proceedings for actions taken in the exercise of their powers.

Supreme Court’s Stance and Commission Recommendations

• 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. The Court emphasized that actions or inactions by the Governor regarding bill assent can be subject to judicial review.

• Punchhi Commission (2010): This commission recommended the establishment of a time limit within which the Governor should decide on granting assent or reserving a bill for the President’s consideration.

• National Commission to Review the Working of the Constitution (NCRWC): NCRWC proposed a four-month time limit for the Governor to decide on a bill’s fate. It also suggested the removal of the Governor’s power to withhold assent except in cases explicitly stipulated in the Constitution.

Conclusion

• The constitution empowers the governor to reserve a bill for the President’s consideration. This is an important ‘discretionary power’ which is necessary for the governor to make sure that state’s laws fall within the framework of the constitution.

• There cannot be a parallel administration within the state by allowing the governor to go against the advice of the council of ministers.

• There is no doubt that these ought to be changed, either by amending the Constitution or through an appropriate Supreme Court verdict, so that misuse of gubernatorial discretion can be kept in check.