Delaying of Bills by the Governors has become a recent flashpoint especially in opposition ruled states. On this premise, State Government of Telangana has filed a writ petition before the Supreme Court under its extraordinary jurisdiction under Article 32 of the Indian Constitution against Telangana Governor for her refusal to approve ten bills passed by state assembly. Providing assent to Bills passed by the State Legislature has been provided under Article 200 of the Indian Constitution.
Relation of Extraordinary Jurisdiction with PILs
- Supreme Court has started entertaining matters in which interest of the public at large is involved.
- Such petitions can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or
- by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction.
- Such concept is popularly known as 'Public Interest Litigation' and several matters of public importance have become landmark cases.
- This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction.
- A Writ Petition filed is dealt with like any other Writ Petition and processed as such.
- In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.
Writ Petition Filed by Telangana Govt. Against Governor
- Bench of Supreme Court led by Chief Justice of India agreed to hear a petition filed by the Telangana government against Governor for creating a “constitutional impasse” by refusing to act on several Bills passed by the State legislature.
- Arguments by the State Government
- The state government highlighted that ten Bills have been pending awaiting the assent of the Governor since September 2022.
- The Governor may or may not give assent to the Bill but should not delay the legislations by pocketing the Bill indefinitely.
- Any refusal on the part of the Governor, including delay, will defeat parliamentary democracy and will of the people.
- In a parliamentary democracy, the Governor has no discretion to delay necessary assent as required on the Bills.
- The State urged the court to declare that the inaction, omission and failure to comply with the constitutional mandate i.e. assent of the Bills by the Governor as highly irregular, illegal.
- The state also suggested that under Article, 163 the Governor is not “expected to act independently”.
Understanding the Powers of Governor to give Assent to Bills
- Article 200 of the Indian Constitution empowers the Governor to declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.
- Thus, a Bill passed by the Assembly or both houses in case of Bicameral Legislature, is presented to the Governor who has the following alternatives:
- He/she may give assent to the Bill; or
- He/She may withhold assent therefrom; or
- He/She may return the Bill to the Legislature for reconsideration; or
- He/She may reserve it for the consideration of the President.
- When the Bill is so returned as per the third scenario, the House or Houses shall reconsider the Bill accordingly. And if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent
- The Governor shall not withhold assent therefrom (so it becomes mandatory for the Governor to give assent to the Bill if the Bill is passed by the House the second time with or without changes as suggested by the Governor).
- Another proviso clause under Article 200 states that the Governor shall not provide assent to the Bill and reserve the same for the consideration of the President if the bill intends to take away powers of High Court.
ARTICLE 201 - Bills reserved for President’s consideration
Understanding Article 201 - Bills reserved for consideration
- When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom.
- Provided that, where the Bill is not a Money Bill - the President may direct the Governor to return the Bill to the House or Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200.
- And when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and,
- if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.
No Time Limit Imposed Under Article 200 or 201
Article 200
- The Constitution does not impose any time limit within which the Governor needs to make decisions under Article 200 regarding providing assent to Bills.
- There is no means to compel the Governor to make him/her provide his/her assent if the Governor decides to keep the Bills pending.
- Further, a bill pending the assent of Governor under Article 200 does not lapse as a result of dissolution of state assembly.
Article 201
- Even under Article 201, no time limit has been provided under which the President has to assent or reject the Bill once the Governor reserve the Bill for President’s Assent.
- The Article ends with the words that the Bill shall again be presented again to the President for his consideration.
- But what happens after the Bill is presented again has not been mentioned. So, technically, the President is not time bound to assent or reject the Bill which is sent again for his consideration and the Bill can be delayed.
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.
Governor’s Discretionary Powers
- Article 163 of the Indian Constitution empowers the council of minister to aid and advise the Governor in the exercise of his functions along with certain discretionary powers. This acts as mechanism of checks and balance against any unconstitutional decisions taken by the state government.
- Governor functions both and head of the state and as an agent of the centre and accordingly has been bestowed with the following discretionary powers:
- Reserve any Bill for the consideration of the President - Article 201.
- Appoint Chief Minister of State - Article 164(1), inviting leader of the single largest party in to prove majority in case of hung assembly.
- Dismiss the ministry as the CM and his ministers holds office during the pleasure of the Governor - Article 164(1)
- Sending report to the President under Article 356 - failure of Constitutional machinery in States.
- Governor’s responsibility for administration of Tribal Areas and responsibilities placed on the Governor under Article 371A (Nagaland), 371C (Manipur), 371H (Arunachal Pradesh).
Important Supreme Court Judgments on Powers of Governor
- 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.
- Nabam Rebia and Bamang Felix v Deputy Speaker
- Supreme Court decided that Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head and not at his own.
- The Court gave its decision based on discussion in Constituent Assembly debates whereby it was finalised not to give discretionary power to Governor under Article 174.
Need for Politically Neutral Governor – Sarkaria Commission’s Recommendation
- Sarkaria Commission on Centre-State Relations, the National Commission to Review the Working of the Constitution and Punchhi Commission has reiterated the need for politically neutral governor.
- Neutrality of governor is best displayed when he uses his discretionary powers as per the constitution. However, the use of discretionary power by the Governor also leaves certain space for its misutilisation.
- Sarkaria Commission has recommended the following criteria which must be considered while appointing Governors of state:
- He should be eminent in some walk of life.
- He should be a person from outside the State.
- He should be a detached figure and not too intimately connected with the local politics of the State; and
- He should be a person who has not taken too great a part in politics generally and particularly in the recent past.
- In selecting a Governor in accordance with the above criteria, persons belonging to the minority groups should continue to be given a chance.
Way Forward –
Let us wait for the Supreme Court’s order on the aspect of time limit under which Governor needs to provide assent under Article 200 of the Indian Constitution.