Context: This article talks about the significance of the Governor’s assent in the law-making process.

Governor’s assent in the lawmaking process in India

• The office of the Governor is a crucial part of the State legislature as the process of law-making is incomplete without his sign or assent.

• That is any Bill passed by a State’s Legislative Assembly becomes a law only after it is assented to by the Governor.

• As the Bill once passed becomes a law only with the Governor’s assent, the Governor’s assent is said to be one of the most crucial acts in the entire process of law-making.

• Such a provision finds its place not just in the Constitution of India but also in various other democratic countries.

• As per Article 200 of the Constitution, once a Bill is passed in the Legislative Assembly and reaches the Governor, he/she can either:

Give his assent or

• Withhold his assent or

• Return the bill for reconsideration or

• Reserve the bill for the President’s consideration

• However, this power of the Governor has often been a controversial issue.

Case study of Kerala and Tamil Nadu

• Recently in Tamil Nadu, the Governor had reserved a Bill that aimed for exemption from the National Eligibility cum Entrance Test (NEET) for the President’s consideration after being delayed. 

• Further, in Kerala, a controversy emerged after the Governor publicly announced that he would not give assent to the State’s Lokayukta Amendment Bill and the Kerala University Amendment Bill.

Key issues and challenges associated with the legislative power of the Governor

• Experts feel that such actions by governors which create uncertainty around the assent of the Bill significantly disrupt the legislative programmes of the State Governments.

• As per the provisions of Article 200 of the Constitution, after sending a Bill for the reconsideration of the Assembly, even if the Assembly passes the Bill without making any change and sends it back to the Governor, the Governor is bound to give assent.

• This provision clearly affirms the primacy of the legislature in the legislative process as the legislature reflects the will of the people and is constitutionally entrusted to make laws and any attempts by the Governor to disrupt this are to be considered a violation of constitutional principles.

• The option to reserve the Bill for the consideration of the President has also been controversial. As per the provisions in the Constitution, the Bill can be reserved for President’s consideration only if the Governor feels that the Bill would endanger the position of the High Court by diluting its powers. 

• The Constitution does not mention any other type of Bill. However, the courts have provided a certain degree of discretion to the Governors in this matter and such discretionary powers have been misused multiple times in the past.

• Also, the option of withholding the assent to the Bill has been controversial as the act of refusal to assent by the Governor is considered to be against the spirit of the Constitution as the Governor does not reflect the aspirations of the people of the State as he is not elected directly by the people of the State.

• As the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill, it is to be acknowledged that power should be exercised by the Governor extremely sparingly and only after careful deliberation of the consequences of such moves.

• Additionally, the Constitution does not fix any timeline for the Governor to decide the question of assent. This has led to significant delays in the law-making process and is against constitutional principles. 

Can Governor take action to withhold the Bill challenged before the judiciary?

• Article 361 of the Constitution prohibits the court from initiating proceedings against the Governor or the President for any act done in exercise of their powers.

• Governor while withholding assent, will have to disclose the reason. The Governor cannot act in an arbitrary manner. If the grounds for refusal have malafide intentions, it could be struck down as unconstitutional.

• Supreme Court in Rameshwar Prasad and Ors. vs Union Of India held that immunity granted by Article 361 does not take away the power of the Court to examine the validity of the action including on the ground of malafides.

Practices in other countries

• The practice in the United Kingdom is that royal assent is mandatory for a Bill to be transformed into law and the crown has the power to withhold assent. 

• However, this provision is said to be a dead letter as in practice and usage there is no power of veto exercised by the crown in England. 

• Further, the refusal of royal assent on the ground that the monarchy disapproves of the Bill is very controversial and is treated as unconstitutional. 

• In the United States, the President has the power to refuse assent and return a Bill to the House. However, if the Houses again pass it with two-thirds of each House the Bill becomes law.

• The practices of refusal of assent and withholding assent are not followed in many democratic countries and in some countries, it is unconstitutional or the constitution provides a remedy so that the Bill passed by the legislature could become law even after the refusal of assent.

Conclusion

• The Constitution of India accords significant powers to the governors with respect to the law-making process. However, such powers are to be exercised in a reasonable manner without any malafide intentions as unreasonable actions disrupt the law-making process and are against the spirit of the Constitution.