Context: The Tamil Nadu Governor was again in the news as the Tamil Nadu Assembly passed a resolution that sought the Union government and the President to issue instructions to the Governor to give assent to the Bills passed by the Assembly “within a specific period”.

Background 

• The resolution, among other things, also urged the Union government and the President to specify a time limit for Governors to give their assent to Bills passed by the legislators.

• The resolution was passed by the Assembly as the State Governor publicly stated that if the Bill passed by the legislature disobeys constitutional limits, then it is the responsibility of the Governor to not give assent.

• Numerous Bills passed by the State Assembly are still pending as the Governor has not taken any decision over such Bills.

Recent Instances of Gubernatorial Procrastination

• Also Tamil Nadu Assembly passed a resolution urging the President of India, among other things, to fix a timeline for assent to be given to Bills passed by the Assembly.

• For instance, in the TN Governor forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.

• In Kerala, the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill.

SC Ruling

• Under Article 361 of the Constitution, 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.

• Hence, the Governor, while declaring that s/he withholds assent to a bill, will have to disclose the reason for such refusal; being a high constitutional authority, s/he cannot act in an arbitrary manner.

• If the grounds for refusal disclose mala fide or extraneous considerations or ultra vires, the Governor’s action of refusal could be struck down as unconstitutional.

This point has been settled by a constitution bench of the Supreme Court in Rameshwar Prasad and Ors. vs Union Of India and Anr.

• The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.

Constitutional provisions

• According to Article 355 of the Indian Constitution, it shall be the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. 

• As explained by Dr. B.R. Ambedkar in the Constituent Assembly, the general meaning and purpose of the Article were to provide justification for the “invasion of the provincial field” which the Union government may have to do. 

• The Constitution mandates the Governor to act when a Bill is passed by the Assembly and present it to him based on the options provided under Article 200 of the Constitution.

• Article 200 mentions the options available to the Governor when a Bill is presented to him after being passed by the legislature.

The options available to the Governor are: 

• To give assent, or

• To withhold assent, or

• To send it back to the Assembly to reconsider it, or

• To send the Bill to the President for his consideration.

• If the Governor sends back a Bill to the Assembly to reconsider and if the Assembly passes the Bill once again with/without accepting any of the suggestions made by the Governor, the Governor is then bound to give his assent.

• Thus sitting on a Bill passed by the Assembly is not an option available to the Governor as per the Constitution.

• If in case a Governor sits on the Bills indefinitely, he/she is considered to be creating a situation where the governance of the state cannot be carried on as per the constitutional provisions. 

• Hence, the State Government can invoke the provisions of Article 355 and inform the President and request the President to direct the Governor to act in such a way that the government is carried on in accordance with the Constitution. 

• Further, there have been questions over the provision of Article 200 that provides an option for the Governor to withhold assent to a Bill in the exercise of their discretionary powers. 

• However, according to Article 154 of the Constitution, the Governor can exercise his/her executive powers only on the “aid and advice of the Council of Ministers”.

• Thus, the Governor can withhold assent to a Bill only on ministerial advice.

Practice followed in the U.K.

• The answers to the questions raised over the option of withholding assent can be found by analysing the practice followed in the U.K. as the Indian Constitution has adopted the U.K.’s model of government.

• It can be seen that the position of the State Governor is similar to that of the Sovereign in England.

• Theoretically, the sovereign can refuse to give the assent but this right has not been exercised since the reign of Queen Anne. 

• The veto power can now be exercised based only on ministerial advice and usually, the government would not veto the Bills which were formulated by themselves.

• The refusal of royal assent on the ground that the monarch strongly disapproved of a Bill or that it was intensely controversial is said to be unconstitutional.

Key Supreme Court judgments on the issue of justiciability

• Purushothaman Namboothiri vs State of Kerala Case, 1962: In this case, the issue that was discussed was that a Bill pending before the State Governor does not lapse on the dissolution of the Assembly.

• However, this judgment does not deal with the justiciability of the process of assent.

• Hoechst Pharmaceuticals Ltd. And … vs State Of Bihar And Others Case, 1983: In this case, the Court ruled that a Governor reserves a Bill for the consideration of the President in the exercise of his discretion.

• However, the Court cannot determine whether it was necessary for the Governor to reserve the Bill for the consideration of the President and hence even this case does not deal with the justiciability of assent.

Road Ahead

• There has been an increase in the instances of the tussle between the Governors and the State governments caused due to indecision by the Governor on passed Bills. This issue requires the intervention of the Supreme Court as a judicial pronouncement on the issue of justiciability of assent is required to eliminate the existing confusion.

• The framers of the Constitution did not anticipate Governors sitting on Bills indefinitely without taking any action under Article 200.

• Gubernatorial Procrastination is a is a new phenomenon that requires a new solution within the framework of the Constitution. Therefore, the Supreme Court should set a reasonable time frame for Governors to make a decision on a Bill passed by the Assembly in the interest of federalism in the country.