Guvs withholding Bills: Chance to examine Constitutional scheme for fixing time frame

CHENNAI: The state government and the Governor are currently at loggerheads over the delay in granting assent by the latter to several Bills that have been passed in the Assembly since 2020. The discontent brewing between them could well be an opportunity to examine and re-examine the Constitutional scheme in order to come out with a workable solution that leads to better governance in the states.

Other Indian states are also not strangers to controversies arising with their Governors, most of them relating to choosing of chief ministers, conducting floor tests, dissolving legislative assembly, recommending President’s rule and delaying assent to bills or reserving them for President’s consideration In the recent times, besides Tamil Nadu, Chhattisgarh, Haryana, West Bengal and Kerala have had similar stand-offs with their governors over delayed assent to Bills.

Article 153 of the Constitution provides for a Governor in each and every state. The executive powers are vested in the Governor under Article 154. The Constitutional scheme warrants that assent of the Governor or the President is necessary for all Bills to become the law of the land.The Supreme Court in Shamsher Singh Vs. State of Punjab (1974) has settled the position that the Governor is only a Constitutional head and the executive powers of the state is actually exercised by the council of ministers by virtue of Article 163.

Article 200 of the Constitution requires all Bills passed by the state legislature to be sent to the Governor for his assent. The Governor in turn has four options, viz., granting of assent, withholding the assent, reserving the Bill for consideration of the President and/or returning the Bill to the legislature for reconsideration. The Article, which has been modelled on Section 75 of the Government of India Act, 1935, does not fix any time limit for exercising any one of the above options. A 5-Judges Bench of the Supreme Court has also confirmed this in the year 1961 in Purushothaman Nambudiri Vs. State of Kerala.

A majority of Bills that have been passed by the Tamil Nadu Assembly pertain to curtailing Governor’s power as chancellor of state universities and reduce the exercise of powers as its head. In these circumstances, prima facie, the delay in granting assent lends credence to the theory that the Governor is attempting to stall the legislative process and is impeding the functioning of a democratically elected government. Interestingly, in other countries like the UK, Canada and Australia, any refusal to assent to Bills is considered abominable to its governance structure.

Several commissions right from the Sarkaria Commission (1987), to the National Commission to Review the Working of the Constitution headed by Justice Venkatachaliah (2002) and the Justice MM Punchhi Commission (2010) have recommended fixing of a maximum time limit for the Governor to take decision on a Bill.

The Karnataka Law Commission’s 22nd Report that exclusively deals with “Assent to Bills – Problems of Delay (Articles 200 & 201 of the Constitution of India)” chaired by Dr Justice VS Malimath has categorically stated that “it would indeed be anomalous and paradoxical if more time is taken by the Head of State to assent to a Bill than for a legislature for passing it. It is well settled that every state action has to be reasonable. The reasonable exercise of power inheres its exercise with a reasonable time. Not doing so will be unreasonable.”

In 2022, a TN Member of Parliament P Wilson has introduced a private member Bill to amend Article 200 of the Constitution to prescribe two months as time frame for the Governor either to give his assent or to withhold or reserve the Bill for consideration of the President.

The role of the Governor has often created friction in the Union-State relationship whenever they have failed to display Constitutional statesmanship.

It has often led to politics of confrontation elbowing out consensus and co-operation. There is an urgent need for Governors to demonstrate Constitutional decorum. The scheme of things never intended to make him a Constitutional monarch. The Governor who pejoratively is called the “agent of the Center” is only a nominee of the Union government. Since he is not elected by the people of the state or by their representative, any unbridled power exercised in not granting assent within a specific time frame or indefinitely withholding assent can raise serious questions about the legitimacy of his conduct.

The First Bench of the Bombay High Court in Ratan Soli Luth vs. State of Maharashtra (2021) observed, “It would not behove the dignity, prestige and majesty of the office of a Constitutional authority/functionary to take shelter of absence of a time limit to act in terms of a provision of the Constitution, so as to defend an inaction when it is challenged in a Constitutional court.”

Every problem is an opportunity in disguise. The scope of judicial review of the Governor’s action is very narrow since he stands protected by Articles 163(2) and 361 of the Constitution that stipulate that the Governor is not answerable in any court of law for the exercise and performance of his powers and duties.

The privileges of the gubernatorial office must not assist them to convert it into a pit-stop for ideological loyalists.

A Governor is only an emblematic representative and he cannot undo the will of the legislature. A Constitutional amendment fixing a time limit for granting assent goes a long way in saving the democratic polity from constitutional ignominy.

RS RAVEENDHREN