Context: The Attorney-General of India submitted before a five-judge Bench headed by the Chief Justice of India that a Governor’s power to withhold assent to a proposed State legislation is an act independent of the Council of Ministers.
Relevance of the Topic:Prelims: Constitutional Provisions on Governor’s Role. Mains: Governor: Powers, challenges & way forward.
Constitutional Provisions on Governor’s Role
- Article 163: Council of Ministers to aid and advise the Governor.
- Article 163 (1): There shall be a Council of Ministers led by the Chief Minister to aid and advise the Governor in the exercise of his functions, except in matters where the Constitution allows him to act on his own discretion.
- Article 163 (2): If any question arises with respect to whether a matter falls under Governors' discretionary power or not, the governor’s decision will be final. The validity of anything done by the governor in his discretion will not be called into question.
- Article 163 (3): The advice given by the Ministers to the Governor shall not be inquired into any court.
- Article 200: When a bill is sent to the governor after it is passed by state legislature, he can:
- Give the assent to the bill
- Withhold the assent to the bill
- Return the bill (if not a money bill) for reconsideration of the state legislature. However, if the bill is passed again by the state legislature with or without amendments, the governor has to give assent to the bill
- Reserve the bill for the consideration of the President.
The controversy lies in withholding the assent to the bill- whether it is a discretionary power or subject to ministerial advice.
Governor Can Act Independently: A-G
- The Attorney-General of India submitted before a five-judge Bench headed by the Chief Justice of India that a Governor’s power to withhold assent to a proposed State legislation is an act independent of the Council of Ministers.
- The Governor cannot be expected to be bound by the advice of the House if the proposed State law was found to be unconstitutional. In such cases, the Governor can act outside the aid and advice of the Council, and even contrary to the mandate of the House/Council of Ministers.
- A power to withhold necessarily involves personal independent judgment, guided by settled principles of laws. The 42nd Constitutional Amendment made Article 74 (1) explicit that the President shall act in accordance with the Cabinet advice. But Article 163 (Governors) was not amended to match Article 74.
Relevant Court Cases:
- Shamsher Singh v. State of Punjab (1974): The Supreme Court clarified that the Governor must act on the aid and advice of the Council of Ministers, except in situations where the Constitution explicitly allows the Governor to act in his discretion.
- State of Rajasthan v. Union of India (1977): This case dealt with the role of the Governor under Article 356, which is related to President’s Rule. While discussing Article 163, the Supreme Court emphasised that the Governor's discretion is limited and he must act on the advice of the Council of Ministers, except in specific situations provided by the Constitution.
- S. R. Bommai v. Union of India (1994): Primarily a case on Article 356, it also discussed the role of the Governor under Article 163. The Supreme Court held that the Governor's report to the President under Article 356 must be based on objective material, and the Governor’s actions are subject to judicial review.
- M. P. Special Police Establishment v. State of Madhya Pradesh (2004): This case dealt with the Governor’s discretion in granting sanction for prosecution. The Supreme Court ruled that in certain circumstances, the Governor may act independently of the Council of Ministers, especially where the ministers themselves are under investigation.
Issues and Concerns:
- Undefined scope of discretionary powers: The Constitution does not clearly define the scope of discretionary powers with the governor, thus leaving the scope for misuse.
- Erosion of Federalism: Frequent withholding or reserving of bills can delay state legislations and undermine elected government.
Hence, this may lead to the situations when governors may have political bias and can act as the agent of the Union government.
Way Forward
- Sarkaria Commission (1988): Governor should be a detached figure and not too intimately connected with the local politics of the State. Discretion should be used sparingly; reserve bills only when required by the Constitution (as a last resort).
- Punchhi Commission (2007): Article 163 does not give the Governor a general discretionary power to act against the advice of the Council of Ministers. The exercise of discretion is limited, and it must be dictated by reason, activated by good faith, and tempered by caution.
- Nabam Rebia and Bamang Felix vs Deputy Speaker (2016): The Governor cannot withhold assent to a Bill indefinitely, but must return it to the Assembly with a message, and this could include his recommendation for amendments to the Bill.
- State of Punjab vs Principal Secretary to Governor of Punjab (2023): Governor can not veto the legislature by indefinitely withholding assent to the bill. In case the bill is re-enacted, the governor does not exercise discretion to withhold the re-enacted bill.
- SC’s Judgment in Tamil Nadu Governor case (2025): SC has prescribed a time limit for the Governor to exercise his powers under Article 200. The court said that a governor must be a friend, guide and philosopher to the State, not a hindrance.
- The governor has a maximum of one month to withhold the assent based on the aid and advice of the State Cabinet.
- The governor has a maximum period of three months to return the bill by specifying reasons, if the bill is withheld contrary to the advice of the Cabinet.
- The governor has a maximum period of three months to reserve the bill for the President's consideration against the advice of the Cabinet.
- The governor must grant assent to the bill re-passed by the state legislature under Article 200 within a maximum period of one month.
Hence, there is a need to align the Governor’s role with cooperative federalism, as envisioned by the Constitution.
Also Read: The Governor