Context: Kerala will soon challenge the legality of President Droupadi Murmu withholding her assent for the Bills that were passed by the Kerala Legislature before the Supreme Court. 

Background

• The President had withheld assent to Kerala University Laws (Amendment No. 2) Bill 2022, University Law Amendment Bill, 2022, and the University Law Amendment Bill, 2021 from the seven Bills that were referred to her in 2023.

• Kerala argues that the Governor should not have referred the Bills to the President as its subject matters were confined to the State List of the Constitution where the State has powers to legislate. 

Significance of the move

• The problem of delay in according assent to Bills passed by the legislature is a burning issue that confronts Indian polity.

• The unusual move of the Kerala Government will open doors for a Constitutional debate on the scope of a judicial review of the decisions of the President of India.

• The State would contend that the legality of the President’s decisions and the factors that influenced it can be judicially reviewed.

The State plans to bring up the issue before the Supreme Court. The state would argue

• Governor should not have referred the Bills to the President as its subject matters were confined to the State List of the Constitution where the State has powers to legislate.

• None of the Bills were in conflict with any Central legislation.

• The Bills did not belong to the special categories for which prior Presidential assent was required, sources pointed out.

Impact of the Delay

• Political implications: The object of every legislation is public good, which is defeated by delay. Delay may also have political implications for the party in power in the State.

• Unfulfilled objectives: By such delay, fulfilment of laudable objectives sought to be achieved by the legislation gets delayed or even be defeated.

• Affected Centre-State Relations: The Union is not affected by such delay or inaction. It is the interests of the State that are jeopardized. Centre-State relations may also be adversely affected.

Governor’s power with respect to the Bills

Article 200 of the Constitution lays down that when a Bill, passed by a State Legislature, is presented to the Governor for their assent, they have four alternatives:

• May give assent to the Bill; 

• May withhold assent to the Bill, in which case the Bill fails to become law; 

• May return the Bill (if it is not a Money Bill) for reconsideration of the State Legislature; or However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his assent to the bill, or

• May reserve the Bill for the consideration of the President. 

Reservation of bill for President consideration

• In one case such reservation is obligatory, where the bill passed by the state legislature endangers the position of the state high court. 

In addition, the governor can also reserve the bill if it is of the following nature:

• Ultra-vires, that is, against the provisions of the Constitution;

• Opposed to the Directive Principles of State Policy;

• Against the larger interest of the country;

• Of grave national importance;

• Dealing with compulsory acquisition of property under Article the Constitution.

Sarkaria Commission recommendations

• The Commission has submitted that it is only the reservation of Bills for consideration of the President, that too under rare cases of unconstitutionality, that can be implied as a discretionary power of the Governor. 

• Save in such exceptional cases, the Governor must discharge his functions under Article 200 as per the advice of ministers. 

• It further recommended that the President should dispose of such Bills within a maximum period of six months. 

• In the event of the President ‘withholding assent’, the reasons should be communicated to the State Government wherever possible.

Road Ahead

• 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.