Context: A five-judge Constitution Bench of the Supreme Court delivered an important advisory opinion on the President’s Reference concerning the Governor’s powers to grant assent to Bills. The reference followed an earlier judgment where the Court held that prolonged inaction by Governors on State Bills is unconstitutional, and invoked Article 142 to declare those Bills as having received “deemed assent”. The latest advisory settles key constitutional questions relating to Articles 200, 201, 142, 143, and 361.
1. Scope of Article 200: Governor’s Options
The Supreme Court clarified that Article 200 provides only three choices when a Bill is presented to the Governor:
Grant Assent
Withhold Assent and Return the Bill (except Money Bills)
Reserve the Bill for the President
No Indefinite Delay
The Constitution does not allow the Governor to sit indefinitely on a Bill. Any delay without reason is unconstitutional.
Ministerial Advice
The Governor is not bound by ministerial advice while choosing among these three constitutional options—because Article 200 expressly gives the discretion.
2. Limits of Judicial Review
The Bench clarified the extent to which courts can intervene:
Permitted Judicial Review
Courts can examine prolonged, unexplained inaction by the Governor.
They can issue a limited mandamus directing a decision.
Not Permitted
Courts cannot review the merits of the Governor’s decision to assent or withhold assent.
Courts cannot impose deadlines because Article 200 uses the phrase “as soon as possible.”
Courts cannot review the President’s decision under Article 201.
Article 361 immunity does not protect the Governor’s office from questions of legality of inaction.
3. Judicial Role in the Assent Process
Bills vs Laws
Judicial review applies only to laws, not pending Bills. Courts cannot rule on the validity of a Bill before assent.
No “Deemed Assent”
The Court held that it cannot use Article 142 to deem assent where the Constitution requires explicit assent by the Governor or the President.
President’s Discretion (Article 201)
The President’s satisfaction is subjective.
The President need not seek Supreme Court advice under Article 143 for every Bill.
4. Constitutional Timelines
Though the Court cannot impose rigid deadlines, it stated:
The phrase “as soon as possible” implies a constitutional urgency.
The Governor and President must act within a reasonable timeframe consistent with democratic functioning.
Relevant Constitutional Articles
Article 200 – Governor’s powers regarding assent, return, or reservation of Bills.
Article 201 – Presidential decision on reserved Bills.
Article 361 – Personal immunity of Governor/President.
Article 142 – Supreme Court’s powers to ensure complete justice.
Article 143 – Presidential reference to the Supreme Court.
Conclusion
The Supreme Court’s clarification strengthens constitutional federalism by reaffirming that Governors cannot block the legislative process through inaction. By limiting judicial intervention yet reinforcing constitutional responsibilities, the judgment ensures transparency, accountability, and cooperative federalism within India’s democratic framework.
Context: In the backdrop of the recent Supreme Court verdict on the Tamil Nadu Governor issue, Vice-President of India has said that Article 142 has become a nuclear missile against democratic force, and that we cannot have a situation where Judiciary can direct the President of India.
Relevance of the topic:
Prelims: Key facts about Article 142.
Mains: Article 142: Significance and Concerns.
Article 142 of Indian Constitution
Article 142 grants extraordinary powersto the Supreme Court to deliver complete justice in any matter pending before it. The provision reflects the spirit of judicial creativity and activism, enabling the apex court to transcend procedural limitations and plug legal gaps. However, such power is to be exercised cautiously and sparingly.
It empowers the Judiciaryto:
override existing laws or fill legal gaps in order to comprehensively resolve a dispute. Issue directions, enforce decrees, compel production of documents, or even punish for contempt.
exercise executive and legislative functions in certain scenarios, E.g., issue guidelines, directives, or orders to governmental bodies or other authorities.
intervene in matters concerning public interest, human rights, constitutional importance, or fundamental rights, safeguarding their interests against any form of violation or infringement.
Idea of Complete Justice:
The idea of complete justice is derived from the Article 142. It means to ensure justice by filling gaps in the law and overriding legal provisions when necessary.
This involves the interpretation and application of laws considering broader constitutional principles, societal needs, and evolving standards of justice.
Significance of Article 142
Bridging Legislative Gaps: When Parliament or the Executive fails to address pressing societal concerns, Article 142 empowers the judiciary to step in.
Vishaka guidelines (1997): In Bhanwari Devi v. State of Rajasthan, the Supreme Court issued guidelines to combat workplace sexual harassment in the absence of statutory law. These later formed the basis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Other cases include environmental orders (E.g., cleaning of the Taj Mahal), undertrial prisoner releases, and the Union Carbide gas tragedy.
Enhancing Democratic Values: Judiciary has used Article 142 to uphold civil liberties and protect minority rights, thereby strengthening democratic norms.E.g., Right to Privacy (2017): In K.S. Puttaswamy v. Union of India, Article 142 facilitated guidelines safeguarding individual privacy in the digital age.
Enforcing Accountability: The provision serves as a check on arbitrary government actions. E.g., Coal block allocation case (2014): The SC canceled 214 out of 218 coal block allocations deemed illegal, asserting the primacy of transparent governance.
Advancing Social Justice: Article 142 allows the Court to resolve complex legal issues involving social rights, often neglected by the executive or legislature.E.g., Vineeta Sharma v. Rakesh Sharma (2020): It settled conflicting interpretations of daughters’ rights in Hindu coparcenary property, reinforcing gender justice.
Promoting Equality: The judiciary has challenged discriminatory practices using this article. E.g., In the Babita Puniya Case, The SC granted permanent commission to women officers in the Indian Army, breaking long-standing gender barriers.
Hence, it establishes Supreme Court's role as the protector of the constitution and ultimate interpreter of the law, it also acts as catalyst for judicial activism and innovation.
Concerns and Challenges in usage of Article 142
Ambiguity in Complete Justice: The term lacks a concrete definition, giving judges significant discretionary power that may lead to subjective interpretations. The meaning of complete justice varies across cases, raising the risk of inconsistent application.
Risk of Judicial Overreach: Frequent use of Article 142 may blur the line between judicial and legislative domains. In S.R. Bommai Case (1994), the SC's intervention in a political crisis by ordering a floor test sparked debates on the judiciary’s incursion into executive affairs.
Weak Accountability Mechanisms: Unlike the legislature and executive, the judiciary is not easily scrutinised for its decisions under Article 142.This has raised concerns over violation of the separation of powers and democratic accountability.
Legal Unpredictability: The discretionary use of Article 142 can result in inconsistent rulings, complicating legal compliance and strategic planning for businesses and individuals.
Erosion of Rule of Law: By bypassing established legal procedures, Article 142 may sometimes be perceived as undermining the rule of law, particularly when its invocation contradicts statutory frameworks.
Way Forward
Define Complete Justice: There is an urgent need to establish guiding principles or a working definition of "complete justice" to ensure consistency and reduce arbitrariness in pronouncement.
Create institutional safeguards: Decisions under Article 142 should involve broader judicial scrutiny, ideally through referral to a Constitution Bench of at least five judges. A regulatory framework can be developed to ensure procedural fairness, including hearing all concerned parties.
Avoid routine usage: Article 142 must remain a remedy of last resort, invoked only when no other legal mechanism suffices to achieve justice.
Legislative follow-up: Judicial pronouncements made under Article 142 should encourage the Parliament to enact or amend laws to fill legal gaps.
Article 142 represents the constitutional commitment to a justice-oriented legal system. However, unchecked use can distort institutional boundaries and threaten democratic norms. Thus, striking the right balance between judicial discretion and institutional discipline is vital to preserving the integrity of India’s constitutional democracy.
Context: The Supreme Court has enquired from Tamil Nadu Governor about the 12 bills pending before him for over three years. In this context, let us understand the Governor’s power over State Bills.
Relevance of the Topic:Prelims: Article 200; Article 201 of Indian Constitution.
Background:
The Tamil Nadu Governor has kept 12 Bills (mostly about higher education and the appointment process of Vice-Chancellors in State universities) pending.
These Bills were sent by the State Legislature for consent to the Governor under Article 200 of the Constitution between January 2020 and April 2023.
The Governor sat on them indefinitely. When the State government approached the court against the Governor’s perceived inaction in November 2023, the latter had quickly referred two of the Bills to the President and proceeded to withhold consent on the remaining 10.
Article 200: Assent to Bill
When a bill is sent to the governor after it is passed by state legislature, he/ she can:
Give his/ her assent to the bill
Withhold his/ her assent to the bill
Return the bill (if it is 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 his/ her assent to the bill
Reserve the bill for the President.
Article 201:Bill reserved for the consideration of the President
When a Bill is reserved for the consideration of the President, The President shall declare either that he assents to the Bill, or he withholds assent from the Bill.
The President may also direct the Governor to return the Bill to the House of the Legislature of the State for reconsideration.
Options available with the Governor:
He may give assent, or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself.
In addition, as identified by Soli Sorabjee, 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 31A of the Constitution.
In one particular case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court.
Supreme Court Observation in this context
In 2024, the Supreme court in the State of Punjab vs. Principal Secretary to Governor of Punjab has held that the 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 reenacted bill.
Context: The role of the Governor as Chancellor of State universities has become a subject of intense debate in recent times, because of the draft UGC Regulations on the selection and appointment of Vice Chancellors of Universities, which has given wide ranging powers to the Governors.
Relevance of the Topic: Mains: Governor as Chancellor: Challenges and Way Forward.
Historical Background
In 1857, the British established universities in Calcutta, Bombay, and Madras, making Governors of the respective presidencies their ex-officio Chancellors. This was intended to maintain colonial control over higher education and limit university autonomy.
Post-independence, this role of Governors as Chancellors of universities was adopted without any reassessment of its relevance. The focus remained on control rather than fostering democratic and federal governance in education.
Presently, Governors as Chancellors, exercise significant authority over universities, such as appointing Vice-Chancellors, nominating syndicate members, and approving university statutes, this has led to conflict especially in opposition ruled states like Tamil Nadu.
Challenges in the Current Model
Politicisation of the Governor’s Office: From 1947–67, due to one party dominance at both Centre and State level, Governors acted as ceremonial figures.
Post-1967, multi-party politics increased the politicization of Governors, transforming them into instruments of Central government control. Studies reveal that a significant percentage of Governors are former politicians or bureaucrats, lacking academic credentials and act on political considerations.
Creates dual authority: Governors, appointed by the Centre, exercise considerable powers in universities matters related to appointments despite State governments funding and managing them. This hampers the implementation of projects and innovation sought by the universities.
Challenges related to federalism: The involvement of Central-appointed Governors in State-run universities undermines the principle of federal autonomy.
Limited accountability: While Governors exercise power in university matters, they are not accountable to elected State governments. Governors often bypass State Ministries of Higher Education while making critical decisions.
Contrasts with Central Universities: In contrast, the President, as Visitor of Central universities, consults with the Ministry of Education and lays statutes before Parliament to ensure legislative oversight. On the contrary,Governors act unilaterally in State universities, with no equivalent accountability.
Recommendations of Various Commissions and Reports:
Rajamannar Committee (1969–71): Advocated that the Governor, even in statutory roles like Chancellor, must act on the advice of the State government.
Sarkaria Commission (1983–88): Recognised that the Governor’s role as Chancellor is statutory (and not constitutional) and must be defined by State laws. It recommended that Governors consult with Chief Ministers while retaining independent judgment in university matters.
M.N. Venkatachaliah Commission (2000–02): It has called for political neutrality in Governors and further suggested a clearer definition of Chancellor’s functions. It also advocated for a supportive rather than authoritative role for the Governor to enhance university autonomy.
M.M. Punchhi Commission (2007–10): Recommended that Governors focus solely on constitutional responsibilities and proposed appointing eminent academics or public figures as Chancellors instead of Governors to ensure academic independence and prevent conflict.
Suggested Models for Chancellor Roles
Governor as ceremonial Chancellor model: The Governor acts on the advice of the State government in university matters. (Gujarat (1978), Karnataka (2000), and Maharashtra (2021) have adopted this model.)
Chief Minister as Chancellor model: Places the Chief Minister in the ceremonial role of Chancellor.West Bengal and Punjab passed Bills in 2023 to implement this model, but these await Presidential assent.
State-appointed Chancellor model: The State government appoints a ceremonial Chancellor (an eminent academician or public figure).Telangana implemented this in 2015, and Kerala passed a Bill for this model in 2022, still awaiting Presidential assent. (This model is best suited for India.)
Chancellor elected by university bodies model: Empowering alumni or university governing bodies to elect the Chancellor.This approach is followed by universities like Oxford and Cambridge.
Chancellor Appointed by the Executive Council Model: The university’s Executive Council or Board of Governors selects a ceremonial Chancellor through a transparent process.University of Melbourne (Australia) follows this model.
Way Forward
Reforming State universities in India demands a careful balance of key principles: ensuring accountability to elected State governments, minimising political interference, promoting institutional self-governance, and fostering academic freedom and excellence.
State-level reforms: States must amend university laws to replace Governors with eminent academicians or public figures as Chancellors. (Telangana’s State-appointed Chancellor model.)
Federal-level reforms: The Centre should facilitate progressive reforms that seek to dismantle colonial-era administrative structures and expedite Presidential assent for progressive State Bills, such as those passed in Kerala, Tamil Nadu, and Punjab.
Promote accountability and autonomy: Universities should have greater self-governance, limiting interference from political or external authorities.
Global best practices: Learn from models in the U.K., Canada, and Australia, where Chancellors provide ceremonial leadership without executive powers.
Context: Jharkhand has seen tensions escalate between the Governor and the State government over the TAC on the question of Governor’s power of constituting and making rules for the Tribal Advisory Council (TAC) under the Fifth Schedule being discretionary.
Constitutional Provision
Art 244(1) of Part X: The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
Part B of Fifth Schedule deals with “Administration and Control of the Scheduled Areas and Scheduled Tribes” provides for the following:
“There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.”
Tribal Advisory Council (TAC)
Each state which has scheduled areas should constitute a TAC.
States which have schedule tribe but not the schedule areas can also constitute TCA after President's direction.
TCA can have at most 20 people of which 3/4th members (at most 15) should be the representatives of schedule tribe in state legislative assembly.
If the number of representatives in legislative assembly is less than required, then the remaining seats should be filled by the other member of the tribal community.
Part C of Fifth Schedule deals with “Schedule Area” provide that
“The President is empowered to declare an area to be a scheduled area. He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such redesignation on an area in consultation with the governor of the state concerned.”
Part B of Fifth schedule also says that,
The Governor may make rules prescribing or regulating, as the case may be,
The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof.
The conduct of its meetings and its procedure in general.
All other incidental matters.
Role of Governor with respect to TAC
Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies.
The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President.
Under this Jharkhand government has notified the Jharkhand Tribes Advisory Councils Rule, 2021 which contains the provision of Composition of the TAC
TAC will be an 18-member body.
Chief Minister of the state Jharkhand is the ex-officio chairman and member of the council.
The Minister of Scheduled Tribes Welfare, shall be Ex-officio Vice Chairman and member of the council.
Contemporary Challenges faced by TAC
Despite mandate of the Constitution there was a delay in establishing the TACs, which led to potential encroachment in their area of governance by other bodies.
As both the cabinet and the TAC are headed by the same person, it becomes very difficult for the TAC to overturn a decision taken by the cabinet, even if it was not in the best interest of tribal communities in scheduled areas.
There is a near complete usurpation of TACs by the political parties in power, as observed by Xaxa Committee.
Due to the presence of high forest coverage and rich mineral sources, Schedule areas have a very high business potential which make them vulnerable to the pressure politics of corporate lobby which decrease TAC’s influence in policy making.
Governments of eight states, where most of the Fifth Schedule areas are located, are unwilling to touch the subject which hurts big business interests.
The Bhuria Commission Report (2002-04) mentioned that the State Government do not put any important matters to the Council for advice.
In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.
Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of follow-ups and field visits.
As per the minutes TAC’s meetings, none of the TACs discussed the issue of land alienation among tribals effectively.
The concerned departments do not always submit Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings.
Constitutional Provision regarding office of Governor
Art 154(1): The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
Art 163(1): 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.
Court Cases
B.K. Manish & Others v/s State of Chhattisgarh & Others
In this case, Chhattisgarh High Court held that the Governor could not exercise his discretion as a matter of discretion for constituting and making rules for the TAC under the Fifth Schedule. Which was later upheld by the Supreme Court.
Way Forward
Political interference in the functioning of the TACs should be minimise and they should be provided with the adequate resources to sustain the grass-root governance.
The economic development in the region should be balanced with the tribal interest for which TAC can be used to promote sustainable development in the schedule areas.
Context:Despite the Supreme Court ruling in favour of the Delhi Government over control of services including the transfers and postings of its officers, the Union Government has introduced an ordinance under Article 123 of the Constitution of India to bypass the judgment as it re-empowers the Centre over the services under Delhi Government.
Ordinance Constitutes ‘National Capital Civil Services Authority’ (NCCSA)
The Central Government has issued an ordinance to constitute ‘National Capital Civil Services Authority’ in Delhi.
As per the ordinance, the authority will be headed by Delhi Chief Minister, and will comprise of Chief Secretary and Home Secretary of the Delhi government.
The authority is to now decide on the transfer and posting of Group ‘A’ officers and DANICS officers serving in Delhi government.
NCCSA shall decide matters before it through majority of votes of its members present and voting.
The stated authority will give effect to the intent and purpose behind Article 239AA and that it is being introduced to make recommendations to the Lieutenant Governor (LG) regarding matters concerning transfer posting, vigilance, and other incidental matters.
Other provisions of the Ordinance
It introduced a new procedure for summoning and proroguing a session of the Assembly.
The proposal for convening the Assembly shall be submitted through the Chief Secretary to Lieutenant Governor and Chief Minister for their ‘opinion’ before issuing the summons.
Judgement with respect to Ordinance
DC Wadhwa vs. State of Bihar, 1987: SC said that the legislative power of the executive to promulgate Ordinances is in the nature of emergency power and is to be used in exceptional circumstances and not as a substitute for the law-making power.
Why frequent resorting to Ordinance Route?
Reluctance to face the legislature on particular issues.
The government may face difficulty in obtaining the required majority or consensus in Parliament to pass particular legislation.
Repeated and willful disruption by opposition parties.
Sometimes, the government may need to implement certain policies or reforms within a specific timeframe. Issuing an ordinance allows the government to expedite the implementation process.
Issues on Excessive Use of Ordinance
The executive’s power to issue ordinances goes against the Philosophy of separation of powers between the Legislature, Executive and Judiciary
It bypasses the democratic requirements of argument and deliberation.
Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the Governors.
It poses a threat to the sovereignty of Parliament and the state legislatures which have been constituted as primary lawgivers under the Constitution.
The Constitution has provided for the Separation of Power where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance-making power only as per the spirit of the Constitution and not to evade legislative scrutiny and debates.
Context: Tamil Nadu Governor R. Ravi’s decision to unilaterally dismiss with immediate effect arrested Minister V. Senthilbalaji from the Council of Ministers only to hurriedly backtrack his decision tests the constitutional limitations on the role of the Governor and pushes the Raj Bhavan into uncharted political territory. So, the primary question which emanates is whether withdrawal of pleasure by the Governor unilaterally allowed under the constitutional set-up?
About Governor
The State Executive consists of the Governor, who is the head of the State, and the Council of Ministers with the Chief Minister at its head. The Governor acts as:
Constitutional Head of a State under Article 153 and 154, and as
An agent of the Centre as he holds office during the pleasure of the President under Article 156.
The governor is neither directly elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the president.
Under Article 155, Governor is appointed by the President by warrant under his hand and seal. In a way, he is a nominee of the Central government.
Under Article164, Governor appoints the Chief Ministers and other Ministers and the Ministers holds office during the pleasure of the Governor.
Meaning of Withdrawal of pleasure
“Pleasure of the Governor”did not mean the Governor has the right to dismiss the Chief Minister or Ministers at will. The “pleasure” of the Governor is understood to flow from the fact that the government enjoys majority on the floor of the House. The Governor can have his pleasure if the government enjoys a majority in the House.
The Governor can withdraw his pleasure only when the government loses majority but refuses to quit. Then he withdraws the pleasure and dismisses it. Without the advice of the Chief Minister, a Governor can neither appoint nor dismiss a minister.
Surya Narain Choudhary vs Union of India (1981) - Rajasthan High Court held that the pleasure of the President was not justiciable, the Governor had no security of tenure and can be removed at any time by the President withdrawing pleasure.
Supreme Court to Aid & Advice under Art. 163
Article 163 of the Constitution 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 discretion as such has neither been elaborated nor provided explicitly under the Indian Constitution.
Shamsher Singh v State of Punjab –
Seven Judge Constitution Bench held that the Governor must exercise “formal constitutional powers only upon, and in accordance with the aid and advice of their ministers, save in a few well-known exceptional situations.
These exceptions relate to dismissal of a government that has lost its majority or decision to invite a party to form the government. In both these circumstances, the aid and advice of the Council of Ministers becomes unavailable or unreliable.
Court also held that 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’.”
Similar issue arose when Governor of Kerala withdrew pleasure from Finance Minister KN Balagopal - Responding to this, constitutional law expert and former Secretary General of the Lok Sabha Mr. PDT Achary said that a Governor can take such a decision only on the advise of Chief Minister.
Way Forward
The Supreme Court, in its recent ruling in Shiv Sena case relating to the political crisis in the Maharashtra government, cautioned against the Governor stepping in to settle political rivalry.
Thus, Governor must act according to the mandates of the Constitution and should avoid political confrontation with the elected government especially with respect to withdrawal of pleasure.
Context: Kerala Governor Arif Mohammed Khan took exception to the State government’s move to reissue ordinances instead of getting the executive orders ratified by the Assembly.
The government had sent Mr. Khan 11 ordinances for re-promulgation. They included the controversial Kerala Lok Ayukta, 1999, amendment ordinance, and the Kerala Cooperative Societies Act, 2022, amendment ordinance.
In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws. However, there are several overlaps in the functions and powers of the three institutions. For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.
Ordinance making is one such provision which diffuses the line between legislature and executive. They enable the government to take immediate legislative action in desperate times. Article 123 of the Indian Constitution grants the President of India certain Law making powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law. Ordinances may relate to any subject that the parliament has the power to make law, and would be having the same limitations.
But executive (Both central and state) have often misused this power. Nothing epitomises the re-promulgation of the ordinances better than the famous “Bihar case”. Which was about the promulgation of 256 ordinances between 1967 and 1981 in Bihar. This included 11 ordinances that were kept alive for more than 10 years and famously dubbed as ordinance raj.
So instances like these clearly indicate the misuse of legislative powers by the executive which were meant to be used only rarely and under limited circumstances. So in this regard we will understand the following:
Article 123 and Article 213 confers power to promulgate ordinance on the President and the Governor respectively.
Under the Constitution, limitations exist with regard to the Ordinance making power of the executive:
Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Why frequent resorting to Ordinance Route?
Reluctance to face the legislature on particular issues.
Lack of majority in the Parliament.
Repeated and wilful disruption by opposition parties.
Issues
The executive’s power to issue ordinances, goes against the Philosophy of Separation of powers between the Legislature, Executive and Judiciary
It bypasses the democratic requirements of argument and deliberation.
Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the Governors.
It poses threat to the sovereignty of Parliament and the state legislatures which have been constituted as primary lawgivers under the Constitution. The Constitution has provided for Separation of Power where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance making power only as per the spirit of the Constitution and not to evade legislative scrutiny and debates
Important Cases related to Ordinance
RC Cooper vs. Union of India, 1970: SC held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
AK Roy vs. Union of India, 1982: SC argued that the President’s Ordinance making power is not beyond the scope of judicial review. Later in case of Venkata Reddy v. State of Andhra Pradesh (1985) Supreme court over ruled its own decision and held that the Satisfaction of the President cannot be called in question.
DC Wadhwa vs. State of Bihar, 1987: SC said that the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power. It was examining a case where a state government repromulgated a total of 259 Ordinances and some of them for as long as 14 years.
Krishna Kumar Singh vs. State of Bihar, 2017: Supreme Court held that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution. It makes mandatory for an ordinance to be tabled in the legislature for its approval.
Way forward
In Nagraj Judgment, SC has observed “The power to issue an ordinance is not an executive power but it’s the power of the executive to legislate on the grounds provided for in article 123”.
Context: The Supreme Court on April 10 orally observed how can the Lieutenant Governor (L-G) act “without aid and advice” of the Council of Ministers in nominating 10 members to the Municipal Corporation of Delhi. This article discusses the need for full statehood for Delhi, the capital city of India. Delhi's government has limited powers despite being one of the most populous cities in India. There is a need to view Delhi from the prism of the interests of the entire country, given that it is the national capital.
So we will cover the following aspects in this article:
Some Historical perspective on administration of Delhi
Why Delhi should be provided with statehood
Reasons against granting statehood to Delhi
Way forward
Supreme Court Verdict on Delhi-Centre Power Tussle
General Studies- II: Governance, Constitution, Polity, Social Justice and International relations
Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
Some Historical perspective on administration of Delhi
Till 1992, except for a brief interlude, Delhi was a union territory under the complete control of the Government of India.
Delhi was allowed its ‘statehood’ early in the 1990s, with a Chief Minister and a popularly elected unicameral legislature though the ‘State’ remained truncated in its powers.
But It remained in substance a union territory and in form a State, with the Lt. Governor retained as its chief executive.
The Chief Minister and his Cabinet made a late entry into space where Lt Governor and several municipal corporations already existed which created friction.
Many departments of the Centre, State, scores of parastatals and five ULBs (urban local bodies) providing bits of governance in the city.
It could safely be asserted that Delhi has more government and less governance than any other city or state in the country
Why Delhi should be provided with statehood:
Massive increment in population of Delhi
In 1991, the 69th Amendment to the Constitution created the Legislative Assembly of Delhi, at a time when the city's population was much smaller. However, as of today, the city has nearly two crore people, making it one of the most populous cities in India. This growth in population has led to a demand for more representation and self-governance.
Limited powers of the Delhi Government:
Nowhere in any democracy are two crore people represented by a government with restricted powers. Despite being one of the most populous cities in India, Delhi's government has limited powers because it is not a full state.
The Delhi government struggled to fight the COVID-19 pandemic because it did not have complete control over its healthcare system. The Central government controls some aspects of Delhi's healthcare, making it difficult for the state government to take timely and effective measures to control the spread of the virus.
The original idea behind Union Territories was just transitional:
When the Union Territories were first created, the idea was to provide a flexible yet transitional status to several territories that joined India. The territories were given a certain degree of autonomy, but they were also expected to eventually transition to statehood.
Goa, Manipur, Himachal Pradesh, and Tripura were initially Union Territories but were granted statehood as they developed economically and politically. This shows that the Union Territory status was meant to be temporary, and statehood was the ultimate goal.
Equal rights for representation and self-governance
Providing equal rights for representation and self-governance was one of the primary reasons for the creation of the Legislative Assembly of Delhi. As the city's population grows, the demand for more representation and self-governance becomes even more critical.
The Delhi government has been advocating for full statehood for years, arguing that it would give the city's residents more say in matters of governance. The lack of full statehood has led to several conflicts between the Delhi government and the Central government over issues like land, law and order, and the police.
The need for full statehood
The time has come to enter the second and final stage to create the full state of Delhi. This would give the city an elected government with greater powers and more say in matters of governance, such as law and order and land management.
If Delhi becomes a full state, it would have complete control over its police force, which is currently under the Central government's control. This would allow the city's elected government to take timely and effective measures to maintain law and order and ensure the safety of its citizens.
UN report on Delhi's population
According to a United Nations report, Delhi's urban agglomeration will make it the most populous city in the world by 2028. This highlights the urgency of granting full statehood to Delhi, as the city's population continues to grow.
With a population of nearly two crore people, Delhi is already struggling with issues like traffic congestion, pollution, and water scarcity. As its population grows, the city's infrastructure and governance will come under even more strain, making the need for full statehood even more urgent.
Reasons against granting statehood to Delhi:
Local political ambition:
The demand for statehood has primarily been driven by the political ambitions of the local government, rather than a national compulsion. The Aam Aadmi Party (AAP) has been advocating for full statehood for Delhi since it came to power in 2015.
National capital interests:
Delhi, being the national capital, must be viewed from the prism of the interests of the entire country, and not just those of the city.
The central government has the responsibility to ensure that the security of vital institutions such as the President's estate, Parliament, and foreign embassies is maintained.
Special security cover:
These institutions require special security cover and close coordination with centrally administered agencies such as RAW and IB, which cannot be provided by a state government.
In 2020, there were protests in front of the Chinese embassy in Delhi, and the Delhi Police had to coordinate with the central government to ensure the safety of the embassy and its staff.
Central government responsibility:
The institutions in Delhi are the sole responsibility of the Union government, and not of any particular state legislative assembly.
The Delhi Police, which is responsible for maintaining law and order in the city, comes under the Ministry of Home Affairs, which is a part of the Union government.
Control over territory:
The Indian government must have some territory under its control and cannot be an occupant or a tenant of a state government.
The central government owns the land on which the President's estate and Parliament are located.
Reservation from regional parties:
Many regional parties have expressed their strong reservation towards granting full statehood to Delhi, as they believe that the national capital belongs to every citizen of the country and not just those who reside in the city.
The Shiromani Akali Dal, a regional party in Punjab, has opposed the demand for full statehood for Delhi.
Loss of advantages:
Statehood would deprive Delhi of the many advantages it gets as the national capital, such as the entire burden of policing being borne by the federal government.
The Delhi Police force has a strength of around 80,000 personnel and is responsible for maintaining law and order in the city, along with providing security to the vital institutions.
Way forward
Supreme Court Verdict on Delhi-Centre Power Tussle
The Supreme Court judgement in the Government of NCT Delhi vs Union of India case, overturned the August 2016 judgment of the Delhi high court, which had ruled that since Delhi was a Union territory all powers lay with the central government, not the elected Delhi government.
Resolving the dispute over the demarcation of powers between the Union Government and the Government of Delhi, the Supreme Court laid down a few key principles:
Delhi government has power in all areas except land, police and public order and the LG is bound by the aid and advice of the government in areas other than those exempted
The only exception to this rule, it said, was a proviso to Article 239-AA, which allowed the LG to refer to the President any issue on which there was a difference of opinion with the council of ministers. In such a case, the LG would be bound by the President’s decision.
Delhi Lieutenant Governor cannot act independently and must take the aid and advice of the Council of Ministers because national capital enjoys special status and is not a full state. Hence, the role of the L-G is different than that of a Governor.
It observed that neither the state nor the L-G should feel lionized, but realize that they are serving Constitutional obligations and there is no space for absolutism or anarchy in our Constitution.
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
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.
