Context

• The article covers the Governor's powers regarding assent given to bills enacted by the State legislature and how they are abused by Governors sitting on bills indefinitely and delaying legislation passed by popular will (State legislature).

Background

• When the Constitution of India was adopted by the Constituent Assembly (November 26, 1949), deliberate voids were left in it, to enable a future Parliament to modify and amend the Constitution that was in accordance with the aspirations and the will of the people.
• However, it resulted in a Constitution with obvious gaps. For example, one of such gaps is implied in Article 200 of the Constitution that does not prescribe a timeline for the Governor to provide assent to Bills sent by a State Legislative Assembly.
• As a result, Governors of several Opposition-ruled states have used this to confuse the mandate of democratically elected governments.

Constitutional scheme

• Article 200 of the Constitution: It provides for four alternative courses of action for a Governor when a Bill after being passed by the legislature is presented to him/her for his/her assent.
  • Give his assent straightaway
  • Withhold his assent
  • Return the Bill to the legislature with the request to reconsider the Bill or any particular provision of the Bill.
    • However, if the legislature again passes the Bill with/without accepting any of the amendments suggested by the Governor s/he is constitutionally bound to give assent to the Bill.
  • Governor may also reserve it for the consideration of the President
    • In this case the assent is given or withheld by the President (Article 201). However, there is no timeline prescribed for even the President, to decide on the outcome of the Bill.
• Objective behind empowering the Governor to grant assent to Bills:
  • An independent Governor would act as a check and balance and to avoid the state-enacted law being repugnant to the Union laws.
  • It was also to act as a safety-valve against hasty legislations and by Governor action’s enable the State Government and Legislature to have a second look at it.

Recent controversies owing to stalling of bills by the Governor:

• In Tamil Nadu alone, almost 20 Bills are awaiting assent by the Governor. The Governor also forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
  • The TN government submitted a memorandum to President seeking removal of the Governor.
• In Kerala, the Governor publicly announced that he would not give assent to the Lokayukta Amendment Bill, 2022 and the Kerala University Amendment Bill,

Supreme Court observations

• Purushothaman Nambudiri vs State of Kerala (1962): A Constitution Bench clarified that the Constitution does not impose any time limit within which the Governor should provide assent to Bills.
  • However, it maintained that the Governor must honour the will of the Legislature and can act only in harmony with their Council of Ministers.
  • SC also observed that Governor withholding assent to a law validly passed by the Legislature, amounts to directly attacking the federal edifice of the Constitution.
  • It also noted that causing delay to assent Bills will be an arbitrary exercise, which in itself is against the spirit of the constitution
• Shamsher Singh vs State of Punjab (1974): A 7-judge Constitution Bench said that the President and Governor shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional
• Nabam Rebia case (2016): The SC cited the observations of B R Ambedkar as follows:
  • The Governor, according to the Constitution, has no function that s/he can execute on his or her own, but does have certain duties to perform, and the House would be wise to keep this distinction in mind.
  • It also ruled that Article 163 of the Constitution does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers
• Rajiv Gandhi assassination case (2018): The SC voiced its displeasure with the delay, citing the Governor's failure to act on the release of the seven convicted prisoners for more than two years.

Call for reforms: Streamlining Governor’s action with popular will

• National Commission to Review the Working of the Constitution (NCRWC): It recommended that there should be a time-limit, say a period of six months, within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President.
• Sarkaria Commission: It suggested that delay from the side of the Governor in granting assent can be avoided by streamlining the existing procedures, by making prior consultation with the Governor at the stage of the drafting of the Bill itself, and by prescribing time-limits for its disposal.
• Punchhi Committee: It argued for a provision for impeachment of the Governor by the state legislature.
• The Speaker of TN Assembly: He recently called for setting a binding timeframe within which Bills should be assented to or returned or reserved for the consideration of the President of India by the Governors.
• Global practices: For example,
  • In the United Kingdom, it is unconstitutional for the monarch to refuse to assent to a Bill passed by Parliament.
  • Similarly, in Australia, refusal of assent to a Bill by the crown is considered repugnant to the federal system.

Way forward

• Though the executive power of the State vests in the Governor, s/he being a nominal head of the State, is expected to exercise that power as per the aid and advice of the Council of Ministers, headed by the Chief Minister of the State.
• Unreasonable delay in granting administrative sanction would be violative of the rule of law, implying the necessity for the Governor to grant assent or decline the bill within a ‘reasonable time’.
• The 'reasonable time' (such as 3 months) should be weighted according to what is required, under the circumstances, to do conveniently what the duty needs in a particular case.

Conclusion

• The Governor’s assent is the most crucial act in the whole law-making process and his/her duty is only to ensure that an elected government is working within the parameters of the Constitution.
• While there may be disagreements with respect to the contents of a Bill, they should not use their powers to stall legislation unpalatable to them.