Pending Bills, the Issue of Gubernatorial Inaction

Why in News?

• In recent months, many bills passed by the state legislatures have been withheld by respective Governors' offices indefinitely.
• In Tamil Nadu, the assembly passed a resolution urging the President of India to intervene and to fix a timeline for assent to be given to Bills passed by the Assembly.
• This resolution is a new constitutional development.

 

Article 355 and unprecedented TN assembly resolution 

• Article 355 of the Indian Constitution says that it shall be the duty of the Union to ensure that the government of every State is carried on by the provisions of the Constitution (otherwise President’s rule under Article 356 can be imposed).
• B.R. Ambedkar in the Constituent Assembly explained the meaning and purpose of Article 355 to justify the “invasion of the provincial field” by the Union government.
• Although this Article was meant to justify central intervention in the States, it is rare for a state assembly (in this case the TN assembly), to pass a resolution urging the President to intervene.

 

Can Article 355 be invoked to fix the accountability of Governors?

• The Constitution (under Article 200) requires the Governor to act when a Bill is passed by the Assembly and presented to him.
• If he fails to act in accordance with the Constitution and sits on the Bills indefinitely, he is creating a situation where governance of the state cannot be carried on in accordance with constitutional provisions.
• In such a situation, the government of the State has a constitutional duty to invoke Article 355 and inform the President and request her to give suitable instructions to the Governor.
• Therefore, a resolution by the Assembly should be considered as a legitimate action.

 

Governor's powers under Article 200

• The Governor has three options when a Bill is presented to him after being passed by the legislature.
  • To give assent.
  • To withhold assent.
  • To send it back to the Assembly to reconsider it (if the Bill is not a Money Bill), or to send the bill to the President for his consideration.
• If the Assembly reconsiders the Bill as per the request of the Governor, he has to give assent even if the Assembly passes it again without accepting any of the suggestions of the Governor.

 

Comparing the Governor's power of withholding assent with the UK model

• Article 200 suggests that, theoretically, the Governor can withhold the assent but not indefinitely.
• His powers, in this respect, can be understood by looking at the UK model.
  • Refusal of royal assent on the ground that the monarch strongly disapproved of a Bill or that it was intensely controversial would be unconstitutional.
  • The veto could now only be exercised on ministerial advice and no government would veto Bills for which it was responsible.
• In India, under Article 154 of the Constitution, the Governor can exercise his executive powers only on the advice of the Council of Ministers.
• But some experts ask as to why the Council of Ministers should advise the Governor to withhold assent after the Bill has been passed by the Assembly.
• If the government did not want to proceed with the Bill, it could withdraw it at any stage of consideration by the Assembly.
• Similarly, if the government wanted to repeal it after it becomes an Act, it could have it repealed by the House.
• The government can ask the Governor to withhold the assent if it has second thoughts on the bill.
• But in India the withholding power of the Governor in not confined to only one situation - Council of Ministers advice to withhold the assent.

 

Should Governors be allowed to withhold assent?

• A Bill is brought before the Assembly when there is some urgency about legislation.
• It may be a part of the policy of the elected government which is responsible to the people.
• Under the constitutional scheme, the Governor is only a constitutional head and has no real powers.
• Withholding assent means the death of that Bill.
• Thus, the Governor by withholding the assent to a bill can completely negate the will of the legislature, and thereby negate the will of the people.
• It cannot be presumed that the Governor is allowed to do it under the Constitution.

 

 Judicial precedents and justiciability of assent

• Purushothaman Namboothiri vs State of Kerala (1962): A Bill which is pending with the Governor does not lapse on the dissolution of the Assembly. This judgement does not deal with the justiciability of the process of assent.
• Hoechst Pharmaceuticals Ltd. vs State of Bihar (1983): A Governor reserves a Bill for the consideration of the President in exercise of his discretion.
  • The Court cannot go into the question of whether it was necessary for the Governor to reserve the Bill for the consideration of the President.
  • This case too does not deal with the justiciability of assent.

 

Can the government challenge the issue in a court of law?

• Since sitting on a Bill passed by the Assembly is not an option given by the Constitution, the Governor, by doing so, is only acting against constitutional direction.
• A judicial pronouncement on this matter is needed to eliminate the confusion.
• State governments seem to be frustrated by non-decision/indecision on the part of the Governor on a Bill passed by the Assembly.
• Therefore, it appears that the state government can legally challenge the Governor's inaction.

 

Way forward

• The Supreme Court of India should hear the matter of justiciability of the process of the assent within the constitutional framework and set a timeframe for the governors to give assent to bills passed by the state legislature.
• The decision will eliminate the confusion and avoid confrontation between the Governor’s office and the state legislature.

 

Conclusion

• The Constitution makers would never have imagined that Governors would sit on Bills indefinitely without exercising any of the options given in Article 200.
• This is a new development which needs new solutions within the framework of the Constitution and in the larger interest of federalism in the country.

 

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Q1) What is the difference between Governors and Lt. Governors? 

The Governor of a state is appointed under Article 153 of the Constitution of India. The governor is regarded as the constitutional head of their respective states and has been tasked to work as per the advice of the Council of Ministers of their respective states. Whereas, Article 239 states that every UT of India shall be administered by the President through appointment of an Administrator. In some UTs they are called Lieutenant Governor. LG is regarded as the administrator of the UT, not a constitutional head. 

 

Q2) Does the Governor have the same power as the President?

The Governor of a state has somewhat the same powers as the President of India except Diplomatic, military and emergency powers such as declaring war and peace.  The Governor has been provided with wider scope of discretionary power in the state than the President in the Union. Only the President has the power to grant pardon to someone who has been sentenced to death.

 

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Source:The Hindu