Conflict Between States and their Governors in the Matters of Lawmaking

What’s in Today’s Article?

• Why in News?
• Governor’s Role in Lawmaking and Where the Controversy Arise
• President’s Role in the Lawmaking Process of the State
• Petition of the Kerala Govt against the Governor and the President
• Situation in Other States
• Way Ahead to Reduce Conflict Between States and their Governors in the Lawmaking Process

Why in News?

The Kerala government recently approached the SC saying the President had withheld assent to 4 Bills passed by the state (but reserved by the Governor for consideration by the President) while disclosing no reason whatsoever.

This is the newest chapter in the conflict between states ruled by opposition parties, and their Governors, who are appointed by the President on the Centre’s advice.

Governor’s Role in Lawmaking and Where the Controversy Arise

• Article 200 of the Constitution states that after a Bill has been passed by the state legislature, “it shall be presented to the Governor”.
• The Governor, then, has 3 options: give assent to the Bill, withhold assent, or reserve the Bill for consideration by the President.
• For situations where assent is withheld, Article 200 states that the Governor may (as soon as possible) return the Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof.
• 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.
• The latter part of the proviso clearly gives the state government the final say on enacting legislation.
• But it is the part saying “as soon as possible after the presentation to him”, which has led to states approaching the SC.
  • Since the article does not provide a timeline, Governors have often withheld assent to Bills for extended periods, effectively leaving them and the state legislature in limbo.

President’s Role in the Lawmaking Process of the State

• This is dealt with in Article 201. In situations where a Bill is sent to the President for consideration, the President can either give or withhold assent.
• If assent is withheld, the President requests the Governor to return the Bill to the state legislature for reconsideration.
  • The state government then has 6 months to reconsider the Bill - failing to do so results in its lapsing.
  • If the Bill is passed once again by the state legislature, it must be sent back to the President. Unlike the Governor, the President is under no obligation to give assent when assessing the reconsidered Bill.
  • This is the only situation in which state governments do not have the final say in their own lawmaking process.

Petition of the Kerala Govt against the Governor and the President

• The Kerala government’s petition terms the actions of Governor and President as “manifestly arbitrary”, i.e., an action that is unreasonable, irrational and which violates the right to equality.
• The petition argues that the decision to keep Bills pending violates Article 200 by not making a decision “as soon as possible”.
• The Governor had “subverted the functioning” of the state legislature and “rendered its existence itself ineffective”.
• The President’s decision to withhold assent to 4 of the Bills referred to her was done without giving “any reason whatsoever”.
  • This is in violation of Article 201, which states that the President is required to return the Bill with a message containing “such amendments as he may recommend”.

Situation in Other States

• The SC (last year) expressed “serious concern” at Tamil Nadu Governor’s decision to withhold assent to 10 Bills that had been enacted by the state legislature, some of which were pending since 2020.
  • Three days later, all 10 Bills were returned for reconsideration, with no reasons given for the decision.
• The SC also criticised the TN Governor for refusing to appoint K Ponmudy as the state’s Minister for Higher Education, despite the apex court staying his criminal conviction.
• The Telangana government also approached the SC (in March 2023) over the former Governor's refusal to give assent to 10 Bills that were passed by its legislative assembly.
  • She gave her assent shortly after.
• The Governor of Punjab had refused to give assent to four Bills passed by the Punjab Assembly, claiming that the Bills were passed in breach of law and procedure.

SC Ruling and Way Ahead to Reduce Conflict

• In (November) 2023, the SC held that the Governor did not have the power to “thwart the normal course of lawmaking by the State Legislatures”.
  • The phrase “as soon as possible” in Article 200 means that the Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.
  • If the Governor decides to withhold assent, s/he is bound to follow the procedure provided in the Article 200.
• Though the court spelled out the obligations of the Governor in the lawmaking process, it stopped short of providing a definitive timeline for the Governor to make the decision.
  • The Kerala government has now approached the SC to address the same issue.

Q1) What are the discretionary powers of the Governor of a State in India?

The Constitutional discretion of the Governor of a state include reserving a bill for the consideration of the President, recommending the decision of the President's rule in any state, etc.

Q2) How is the governor of a state in India appointed?

The Governor of a State shall be appointed by the President by warrant under his hand and seal (Article 155). A person to be eligible for appointment as Governor should be citizen of India and have completed age of 35 years (Article 157).