State Legislature

Governor’s power over State Bills: Article 200 & 201

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:
1. Give his/ her assent to the bill
2. Withhold his/ her assent to the bill
3. 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
4. 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:
1. Ultra-vires, that is, against the provisions of the Constitution.
2. Opposed to the Directive Principles of State Policy.
3. Against the larger interest of the country.
4. Of grave national importance.
5. 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.

Chief Secretary and Current Issue with Extension of its Tenure in Delhi

Context: The Supreme Court of India, through an order, permitted the Union Government to unilaterally extend the tenure of the incumbent Chief Secretary despite the opposition from the Delhi government on allegations of conflict of interest.

Timeline of Current Issue with respect to Service of Chief Secretary in Delhi

Government of NCT of Delhi vs Union of India Case, 2017 (Service Judgement):

In this case, the Supreme Court unequivocally held that references to "state government" in the relevant All India Rules (AIR) or Joint Cadre Rules (JCR) related to Delhi would mean the Government of Delhi.
Following this ruling, the Delhi government's recommendation became necessary for extending the Chief Secretary's tenure under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.

Government of National Capital Territory of Delhi (Amendment) Act, 2021:

This act amended Section 21 of the Government of National Capital Territory of Delhi Act, 1991, by inserting subsection (3), specifying that the expression "Government" referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.

Current Supreme Court Order:

The Supreme Court carved an exception for the Chief Secretary of Delhi, asserting that he is differently placed than other officers under the AIR or JCR and is not bound by the Services judgement.
Despite the earlier ruling emphasizing the Delhi government's role in extending the Chief Secretary's tenure, the Supreme Court's current order permits the Union Government to unilaterally extend the incumbent Delhi Chief Secretary's tenure.
This decision comes despite the opposition of the Delhi Government, citing serious allegations of conflict of interest against the Chief Secretary, which are currently under investigation.

Chief Secretary of a State

While the Constitution of India does not have an explicit provision related to the chief secretary of states under Article 166, it provides for the conduct of the business of the state government. Their appointment is an executive action done by the chief minister in the name of governor.

Depending on the state, the powers and functions of chief secretaries are defined in the rules of business.
The Chief Secretary is at the apex of the administrative hierarchy of a state.
Many of their functions have evolved through parliamentary custom and convention, and the rules are amended from time to time to accommodate new evolving roles.

Role of Chief Secretary

The Chief Secretary of a state acts as the ex-officio Secretary to the Council of Ministers and, in that capacity, he is known as the Secretary to the Cabinet and plays an important role in policy formulation.

Head of the Cabinet Secretariat Department: The Chief Secretary oversees the Cabinet Secretariat Department, functioning under the Chief Minister's political leadership.
Work Pertaining to Cabinet Meetings:
- The Chief Secretary is responsible for preparing agenda papers for cabinet meetings.
- As the ex-officio Secretary to the Council, they attend cabinet meetings and sub-committee meetings.
- The Chief Secretary records decisions made in cabinet meetings and forwards copies to the Governor, Chief Minister, and council of ministers.
Participation in the Policy Formulation Process:
- The Chief Secretary serves as the primary source of information and advice to the Chief Minister and other ministers.
- Their presence in cabinet meetings is crucial to counterbalance ministers who may be influenced by public opinion or constituency pressure, ensuring decisions are made with long-term considerations.
Role in the Follow-up of Cabinet Decisions:
- After cabinet decisions, the Chief Secretary oversees the implementation by the secretary of the concerned department.
- The Chief Secretary has the authority to request documents related to any department's case.
Representation at the National Level Consultations:
- The Chief Secretary represents the state in national-level consultations, contributing to discussions and decisions on broader issues.

Function and Responsibilities of Chief Secretary

1. He chairs an expert body, which decides matters of awarding honours and distinctions.

2. He deals with matters relating to inter-state disputes.

3. The Chief Secretary can initiate changes in Rules of Business but the final decision in this respect rests with the cabinet.

4. All matters of housing accommodation and government buildings and circuit houses fall under his jurisdiction.

The functioning and responsibilities of the Chief Secretary affect all the departments and, therefore, the role of the Chief Secretary as the head of the General Administration Department remains of substantial significance.

P V Narasimha Rao Case: Bribery vs Parliamentary Privileges

Context: A 5-judge Constitution Bench, presided by Chief Justice of India D Y Chandrachud, has referred the matter of Sita Soren Case to a larger 7-judge Bench that will assess the interpretation of Articles 105(2) and 194(2) of the Indian Constitution.

Sita Soren Case

She was accused of accepting a bribe to vote for an independent candidate in the 2012 Rajya Sabha elections.

Sita Soren, an MLA, allegedly took bribe to vote for one candidate but voted for another.
A case was subsequently filed against Sita and the Jharkhand High Court in 2014 ruled that she is not immune from prosecution.
She challenged the case in the Supreme Court and the matter came before a three-judge bench of the Supreme Court.
In 2019, a three-judge bench of the Supreme Court referred the matter to a five-judge bench.
Now, in 2023, the Constitution Bench of the Supreme Court has referred the case to a larger bench that would finally re-examine whether lawmakers are immune from prosecution if they take bribe to cast a vote.

P V Narasimha Rao v. State (1998)

Historical Context

The 10th Lok Sabha election, which was held in the year 1991, the congress party formed the government with P.V. Narasimha Rao as Prime Minister.
In July 1993 a ‘No Confidence Motion’ was moved against the existing government of P.V. Narasimha Rao.
The party somehow managed to defeat the motion with 251 members voting in favor of the motion and 265 voting against the motion.
After the motion got defeated the party once again came into power.
But a person filed a complaint with the CBI wherein it was alleged that some members of parliament were bribed during the no-confidence motion in Lok Sabha.
The CBI, based on information received, registered a complaint under Section 13(2), Section 13(1) (d) (iii) of the Prevention of Corruption Act (PCA) against some members.
A criminal prosecution was launched against the bribe-taking and bribes giving members of the Parliament under the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code.

Issues raised in P V Narasimha Rao Case

Whether by virtue of Article 105 of the Constitution, a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court.
Whether a Member of Parliament is a "public servant" falling within the purview of the Prevention of Corruption Act, 1986.

Judgement of Supreme Court in P V Narasimha Rao v. State (1998)

The majority of the Supreme Court held that MPs have immunity under Article 105(2), protecting them from criminal prosecution for actions taken within the parliamentary context.

The Court held that the members are immune from any kind of proceedings against them in respect of any vote in the parliament.
The Court would have no jurisdiction to put any criminal liability on the accused persons as whatever allegedly happened was in respect of votes given by some of them in the Lok Sabha touched the privileges of the House within the meaning of clauses (2) and (3) of Article 195 of the Constitution.
Members of Lok Sabha hold no office and as such are not public servants within the meaning of Section 2(c) of the PCA and for that reason the PCA would not apply to the alleged acts of omission and commission of the accused persons.
Even if it be taken that Members of Lok Sabha do fall within Section 2(c) of PCA and are thus taken to be public servants, yet the Act would not apply for the simple reason that in the case of Lok Sabha Members there is no authority competent to remove them from their office within the meaning of Section 19(1)(c) of PCA.

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

TELANGANA GOVT. MOVES SC AGAINST GOVERNOR

Delay in Bills: Pinarayi, Stalin to fight together

Lt. Governor and Delhi

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.