Governor's power to reserve bills for approval

Context: The Supreme Court has given a timely reminder to Governors that the Constitution expects that a decision to return a Bill to the State Assembly for reconsideration should be made “as soon as possible”. It has drawn attention to the phrase found in the first proviso to Article 200, seeking to convey a sense of immediacy in the matter of returning a Bill.  “The expression ‘as soon as possible’ contains significant constitutional content and must be borne in mind by constitutional authorities,” the Court observed. This effectively means it would be constitutionally impermissible for Governors to hold on to Bills indefinitely without communicating their decision to the House.

Power and function of the Governor pertaining to giving assent to a bill falls under category of legislative powers.

Constitutional Provisions

• Article 200 – When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall have following options

• He may give his assents to the Bill , thus the bill becomes an Act.
• He may withholds assent , the bill thus ends and does not becomes an Act.
• He may return the bill for the reconsideration of House or houses.  If the bill is passed again with or without amendments and presented to Governor for his assent, the governor must give his assent to the bill.
• He may reserves the Bill for the consideration of the President.

• Article 201 – When a Bill is reserved by a Governor for the consideration of the President, the President shall have following options

• He may give his Assent. 
• He may withhold his Assent.
• He may direct the Governor to return the bill to the House or, as the case may be.

The Governor’s power to withhold assent or return a Bill, with a message, for reconsideration is seen as discretionary.

Article 163

• Another constitutional provision of importance is Article 163 which states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.  
• However, the discretionary powers of the Governors have not been explicitly defined in the constitution and can only be ascertained by going through certain constitutional provisions.

Concerns 

There are three clear problems associated with Article 200, which deals with assent to Bills: 

• The absence of a time limit for acting on Bills
• The scope for reserving a Bill for the President’s consideration against the express advice of the Cabinet 
• The claim that the Governor can kill any Bill by declining assent. 

The mischief lies in Article 163, which hedges the primary rule that the Governors function on the ‘aid and advice’ of the Cabinet, with a clause that prohibits any inquiry into whether a particular matter fell within their discretion or not. These provisions give abundant scope for conflict between the government and Raj Bhavan.

Way Ahead 

Important Supreme Court Judgements Shamsher Singh v. State of Punjab (1974) – Supreme Court said: “The Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.”     B.P. Singhal v. Union of India (2010)Five Judge Bench of Supreme on removal of governors mentioned about the dual role of governor: 1. Agent of the Centre & 2. Head of the state.SC also held that there may be instances of conflict between Centre and states where the governor has to act neutrally.

Sarkaria commission recommendation w.r.t assent to the bills

• Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. 
• In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.
• Needless reservation of Bills for President's consideration should be avoided.
• Normally, when a Bill passed by the State Legislature is presented to the Governor with the advice of the Council of Ministers that it be reserved for the consideration of the President, then the Governor should do so forthwith. If, in exceptional circumstances, the Governor thinks it necessary to act and adopt, in the exercise of his discretion, any other course open to him under Article 200, he should do so within a period not exceeding one month from the date on which the Bill is presented to him.
• State Governments often consult the Government of India at the drafting stage of a Bill. This is a healthy practice and should continue.
• As a matter of salutary convention, a Bill reserved for consideration of the President should be disposed of by the President within a period of 4 months from the date on which it is received by the Union Government.
• As a matter of convention, the President should not withhold assent only on the consideration of policy differences on matters relating, in pith and substance, to the State List.
• President's assent should not ordinarily be withheld on the ground that the Union is contemplating a comprehensive law in future on the same subject. To the extent feasible, the reasons for withholding assent should be communicated to the State Government.

For further readings regarding the details of Article 200 and Article 201 refer to the following links

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