A Blow for the Rights of the Legislature, in Law Making

Why in News?

• On 10^thNovember 2023, in an important judgement (State of Punjab vs Principal Secretary to the Governor of Punjab), the Chief Justice of India (CJI) pronounced an interpretation of Article 200 of the Constitution of India.
• The focus was on the first provision of Article 200, which deals with a Governor's options when presented with a Bill for assent after passage by the State Legislature.

Article 200 of the Constitution of India

• 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.
• The four alternative courses of action for a Governor are -
  • 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.

Conventional Views on Discretionary and Absolute Nature of Governor’s Power

• Commentators, including D.D. Basu, have traditionally held that the Governor's authority to withhold assent carries finality, resulting in the demise of the Bill.
• These commentators generally asserted that the provision allowing the Governor to send the Bill back for reconsideration is discretionary, not mandatory.
• This implied an absolute power to withhold assent.

Interpretation Pronounced by the CJI of Article 200

• CJI Linked the Withholding Assent with ‘Mandatory’ Reconsideration
  • The recent judgment by CJI brings a different perspective, linking withholding assent with mandatory reconsideration.
  • CJI’s interpretation made it clear that there was a presumption that the Governor’s power to withhold assent from a Bill is absolute.
• Immediate Reconsideration is Required
  • The CJI has essentially removed the possibility of refusing assent by connecting it to sending the Bill immediately back to the Assembly for another look.
  • The judgment says that if the Governor decides to withhold assent, he has to send it back to the Assembly immediately for reconsideration, in which case he has no other option except to give assent.

The Significance of CJI’s Interpretation

• Safeguards the Legislature’s Rights: This judgement and CJI's approach safeguard the legislature's rights in law-making, protecting the constitutional system from potential misuse by unelected Governors.
• Interpretation Represents an Evolution in Views on Governor’s Power: The CJI's interpretation represents an evolution in understanding the Governor's powers, emphasising the need for ongoing assessment and refinement of constitutional interpretations.
• Provides Greater Clarity to Article 200
  • The Supreme Court of India has said emphatically that Governors cannot delay the decision on the Bills.
  • Thus, the decision of the top court has brought greater clarity to Article 200 and Governors will have to quickly take a decision on the Bills.

Remaining Challenges Pertaining to Governor’s Power

• Reserving Bills for President’s Consideration
  • There is still an area which can be exploited by the Governors to frustrate the law-making exercise of State governments.
  • Reserving a Bill for the consideration of the President is an absolute option still available to a Governor.
  • The crucial question is on what kinds of Bills a Governor can send to the President for his consideration.
    • The second provision to Article 200 mentions one kind of Bills which are mandatorily to be reserved for the consideration of the President.
    • These are Bills which deviate from the powers of the High Court in such a way as to endanger the constitutionally designed position of that court.
  • So, the Constitution requires the Governor to send all such Bills for the consideration of the President.
  • Since consideration by the President means consideration by the Union government, the officials of the Home Ministry will in effect decide the fate of such Bills.
• Absence of Categorisation of Bills to be Sent for President’s Consideration
  • The Constitution does not refer to any category of Bills which can be sent to the President for his assent.
  • Therefore, taking a surface view, the Governor can use his discretion to send any Bill to the President.
    • For example, the Governor of Kerala did the same thing recently. He did not act on eight Bills that were with him for over two years.
    • When the Supreme Court took up the Kerala government’s petition challenging the Governor’s inaction, he gave his assent to one Bill and sent the seven Bills to the President for his consideration.
  • Another example is when the Tamil Nadu Governor sent 10 Bills for reconsideration by the Assembly after many complaints by the State government.
    • The Assembly after reconsideration sent the Bills to the Governor without accepting any amendments.
    • But in a strange act the Governor sent all those Bills to the President for his consideration which is patently against the Constitution.
    • Article 200 (First proviso) requires him to give his assent to the Bills.

Analysis of the Constitutional Provision of Governor's Discretion in Reserving Bills

• Constitutional Provision: The current political context raises a pivotal question about a Governor's discretion to reserve Bills for the President's consideration. The Constitution remains silent on this matter.
• Indirect References: Article 213 and Article 254 (2)
  • Two constitutional provisions indirectly touch upon this issue: Article 213 concerning ordinance-making powers and Article 254(2) related to State laws in the Concurrent List.
  • Article 213 empowers Governors to promulgate ordinances with presidential instructions if deeming it necessary to reserve a Bill's provisions.
    • This implies that the Governor must exercise judgment within the constitutional scheme.
    • The use of "deemed it necessary" suggests that Governors cannot act arbitrarily but must adhere to constitutional principles when deciding to reserve Bills.
  • Article 254(2) instructs that State laws on Concurrent List items prevail if they have presidential assent, even if conflicting with existing central laws.
    • The provision implies that a Bill on a Concurrent subject only needs presidential assent if it contradicts central laws; it does not mandate sending every such Bill to the President.
• President’s Jurisdiction and Governor’s Duty on State Subjects
  • In the federal legislative division, the President lacks jurisdiction to scrutinise and assent to Bills exclusively concerning State subjects, emphasising the Governor's constitutional duty.
  • Sending a Bill on State matters to the President could be seen as an abdication of the Governor's constitutional duty, as State List subjects fall outside the President's purview. 

Conclusion

• The lack of explicit provisions leaves room for interpretation, creating a constitutional conundrum regarding a Governor's discretionary power in reserving Bills for the President.
• Given the evolving nature of constitutional interpretations, there is a need for clarity on the extent of a Governor's discretion in reserving Bills, ensuring alignment with the federal structure and legislative autonomy.
• A Governor is not personally responsible for anything done by the government. Further, constitutional validity of a law is decided by the court and neither the Governor nor the President has any jurisdiction over it.

Q1) What is the Executive Power of the State?

As per Article 154 of the constitution 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. Nothing in this article shall be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.

Q2) What is the primary condition of the Governor's office?

The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.

Source: The Hindu