8 months ago
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The Supreme Court of India has heard arguments connected the Presidential Reference successful respect of the Governor’s powers nether Article 200 pertaining to the assent to Bills passed by the State legislature. Earlier, a two-judge Bench, headed by Justice J.B. Pardiwala, had fixed a timeline of 3 months for the Governor to instrumentality a last determination connected a Bill submitted to him for assent. The aforesaid timeline was made applicable to the President of India also.
The clip bounds fixed by the Court has raised eyebrows successful the authorities arsenic good successful the media. The wide refrain from a conception of the media was that the Court cannot nonstop the Governor oregon the President, who are precocious law authorities, to enactment wrong a specified clip erstwhile the Constitution does not person immoderate specified clip frame. The authorities had besides taken this enactment of statement successful the Court.
Reiteration of a recognised principle
Article 200 of the Constitution has 4 options for the Governor erstwhile a Bill is presented to him aft being passed by the State legislature. These options are to assent to the Bill; to withhold assent; instrumentality the Bill to the Assembly with a petition to reconsider the Bill arsenic a full oregon definite clauses, oregon reserve it for the information of the President.
Editorial | Constitutional clarity: On hearings connected the Presidential Reference
A precise important question which arose successful the discourse of the Governor’s relation successful dealing with a Bill aft it is passed by the legislature is whether the Governor has immoderate discretion successful the workout of immoderate of the options mentioned above. Under Article 163, the Governor is required to workout his functions lone connected the assistance and proposal of the Council of Ministers but successful matters specified by oregon nether the Constitution. The Court has, successful cases from Shamsher Singh vs State of Punjab (1974), to Nabam Rebia (2016), made it wide that the Governor cannot execute immoderate of his enforcement functions but connected the proposal of the Council of Ministers headed by the Chief Minister. The Sarkaria Commission and Punchhi Commission excessively reiterated this well-recognised law principle.
The constituent that has been emphasised successful each the judgments of the Court and the judicial commissions is that the Governor is conscionable a law caput and that the existent enforcement powerfulness of the authorities is vested successful the elected government. Therefore, the Governor cannot enactment independently.
So, the question of important value successful this discourse is whether the Governor, portion exercising immoderate of the options nether Article 200, tin enactment successful his discretion. The reply to this question volition go wide erstwhile we instrumentality a adjacent look astatine the Government of India Act, 1935. Section 75 of this Act is substantially the aforesaid arsenic Article 200. Section 75 uses the words “the politician successful his discretion” which means that giving assent oregon withholding it oregon sending the Bill backmost to the legislature oregon reserving it for the information of the Governor General is done by the Governor successful his discretion.
This Section has been virtually reproduced successful Article 200 but omits the words “in his discretion”. This would amusement that the Constitution-makers wanted the Governor to workout the powerfulness nether Article 200 lone connected the proposal of the Council of Ministers.
The contented of ‘discretion’
The question of discretion of the Governor nether Article 200 is 1 that has been dealt with by the Court successful a fig of cases. Surprisingly, the Court, successful Shamsher Singh, discovered a discretionary powerfulness successful the Governor nether Article 200. It held that helium indispensable workout it to the champion of his judgement and should prosecute a people which is not detrimental to the state.
But the Court, successful The State of Tamil Nadu vs The Governor Of Tamilnadu and Anr. (2025), did not judge the thought of a Governor exercising his discretion successful withholding assent oregon reserving the Bill for the information of the President. It says, “if the powerfulness to withhold assent to Bills oregon to reserve them for the information of the President is construed arsenic falling wrong the exclusive discretionary domain of the politician who would beryllium escaped to determine a people of enactment notwithstanding the assistance and proposal of the assembly of ministers it would person the imaginable of turning him into a ace law fig having the powerfulness to bring to a implicit halt the cognition of the legislative machinery successful the state. The politician cannot beryllium vested with specified power....”
The Sarkaria Commission, portion granting that, normally, successful the discharge of the functions nether Article 200, the Governor indispensable abide by the proposal of his Council of Ministers, said that successful uncommon and exceptional cases, helium whitethorn enactment successful the workout of his discretion particularly erstwhile the provisions of the Bill are patently unconstitutional.
While divergence of sentiment exists successful Indian judicial decisions, according to D.D. Basu, the renowned law authority, successful the United Kingdom, the sovereign has nary powerfulness to withhold a Bill without the proposal of the Council of Ministers. The deliberate omission of the connection ‘discretion’ successful Article 200 of the Constitution of India compels the decision that this Article does not licence discretion of immoderate benignant by the Governor portion dealing with a Bill passed by the legislature.
The adjacent question is astir the clip bounds prescribed by the Court wrong which the Governor and the President are required to instrumentality a last determination connected a Bill. From the arguments made connected behalf of the Union Government, it is wide that it has beardown objections to the clip limit. It is existent that nary clip bounds has been prescribed by Articles 200 oregon 201. It is evident that the Court fixed the clip bounds due to the fact that immoderate of the Governors had sat connected Bills for years unneurotic without exercising immoderate of the options disposable nether Article 200. The question is whether the Constitution permits specified a people of action. It does not.
So, is determination nary remedy disposable to States whose important Bills spell successful limbo? When a Governor sits connected Bills for years, should not the Union intervene and nonstop the Governor to enactment successful accordance with the Constitution? Article 355 tin beryllium creatively interpreted to mean that the Union Government tin intervene to guarantee that the authorities of a State is carried connected successful accordance with the provisions of the Constitution. Thwarting the legislative process by the Governor by sitting connected Bills passed by the legislature for years creates a concern wherever successful the authorities cannot beryllium carried connected successful accordance with the provisions of the constitution. Article 355 imposes a work upon the Union to nonstop the Governor to execute his law work nether Article 200.
A remedy for what is present a reality
In nary lawsuit has the Union intervened to nonstop a Governor to wide the Bills that helium sat connected for years. That has forced the Supreme Court to hole the clip bounds now. The Constitution makers could not person visualised specified behaviour connected the portion of the Governors. But present that it has go a reality, a remedy has to beryllium found. By fixing the clip limit, the Court has smoothened the legislative process.
The judgments successful the 2 caller cases, namely, State of Punjab vs Principal Secretary to the Governor (2023) and The State of Tamil Nadu vs The Governor Of Tamilnadu and Anr. are successful information landmark judgments which struck a stroke for federalism. Judges construe the Constitution and clarify the ineligible ambiguities, and successful that process besides make caller rules. Article 21 was a captive of the literal mentation since 1950 (A.K. Gopalan) till the American doctrine of owed process was imported into it and expanded its ambit successful Maneka Gandhi (1978).
Therefore, it is rather retired of spot to reason that judges, by interpreting the existing provisions to conscionable a caller concern which posed a superior situation to the law order, are amending the Constitution. The fallacy successful this statement is excessively evident to miss.
P.D.T. Achary is erstwhile Secretary General, Lok Sabha
