The Centre may move Supreme Court to review its ruling on delays in Governor and President assent to State laws. The MHA argues the judgement impacts constitutional procedures and timelines.
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NEW DELHI: The Ministry of Home Affairs (MHA), which works under the Central Government, is planning to file a review petition in the Supreme Court.
This is about the Court’s decision made on April 8, where it said that courts can step in if a Governor takes too much time to approve (give assent to) Bills passed by the State Assembly.
The Court also gave a clear rule that the President should decide on such Bills within three months when they are sent to him by the Governor.
A senior official from the government told media that they are getting ready to file a petition against this judgement because it sets fixed deadlines for both the Governors and the President.
The Supreme Court gave this decision after the Tamil Nadu government filed a petition in November 2023. Tamil Nadu complained that its Governor had not approved ten Bills passed by the State Assembly, some of which were passed as early as 2020.
Another senior government official explained why the review is needed. They said that the Centre’s main points were not properly presented in court.
The official said,
“The judgement paves the way for restoring a ‘lapsed’ Bill. Per the Constitution, once the Bill has been returned, or assent to it withheld by the President, the legislation lapses. It has to be reintroduced in the Assembly for passage, with the amendments suggested or without, as desired by the Assembly. The April 8 judgement does not consider this ground.”
After the Supreme Court’s order, the Tamil Nadu government published the 10 Bills as Acts in the official Government Gazette. The Court had said that these Bills are now “deemed” to have received assent, meaning they are considered approved by law.
The judgement also mentioned an earlier note from 2016 by the Ministry of Home Affairs. This note clearly said that the decision on Bills sent to the President should be made within three months.
The official added:
“The timelines decided by the court will also have to be reconsidered.”
The review petition will need to be submitted to the same Supreme Court Bench that gave the original verdict—Justice J.B. Pardiwala and Justice R. Mahadevan.
The Ministry of Home Affairs is the main department responsible for handling State laws under Article 201 of the Constitution.
When a Bill is sent to the President, assent can be denied for three reasons—if it clashes with Central laws, goes against national policies, or has legal and constitutional issues.
ANALYSIS OF THE SUPREME COURT JUDGEMENT
In a very important decision, the Supreme Court of India has said that if the President of India withholds assent (approval) on a bill which has been passed by a state assembly and sent by the state Governor for the President’s consideration, then the state government has the right to directly approach the Supreme Court.
This major judgment came from a bench of Justices J B Pardiwala and R Mahadevan on April 8, in response to a plea by the Tamil Nadu government. The DMK-led Tamil Nadu government had complained about long delays in getting assent for several bills passed by the state assembly.
These bills were sent to Governor R N Ravi, who had then reserved them for the President’s consideration, instead of giving his assent or returning them.
The Supreme Court gave a big relief to the Tamil Nadu government by clearing ten bills that had been stuck. The court also clearly said that Governors must act on bills passed by the state assembly within a reasonable time and cannot delay them unnecessarily.
In the detailed judgment written by Justice Pardiwala, which runs into 415 pages, the court discussed the powers of the Governor under Article 200 and of the President under Article 201 of the Indian Constitution.
Article 200 explains what a Governor can do when a bill is passed by a state assembly – either give assent, withhold assent, or send it to the President. Article 201 explains what happens when the Governor reserves a bill for the President’s consideration.
The court said that the actions of both the Governor and the President related to state bills can be reviewed by the courts under certain situations.
“Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court,”
-the court said.
The Supreme Court stressed that these important constitutional powers given to the Governor and President must be used properly and not in an unfair or irresponsible way.
“Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court,”
-the judgment further said.
The court explained under what conditions a state can challenge such reservations in courts.
“Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M.P. Special Police (supra) and Nabam Rebia (supra) then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pinpointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law,”
-the bench said.
The court also said that while sending the bill to the President, the Governor must give a proper explanation and reasoning.
“It shall be open to the state Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. This being a question completely capable of being determined by the constitutional courts, would be fully justiciable,”
-the judgement said.
The court strongly said that keeping a bill pending or reserving it just because the Governor personally disagrees or due to political reasons is not allowed.
“Reserving a bill on grounds such as ‘personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations’ is strictly impermissible by the Constitution and would be liable to be set-aside forthwith on that ground alone,”
-Justice Pardiwala said.
The court also clarified that even if the Governor sends a bill to the President to get special immunity or approval, and then the President withholds assent, the matter can still be checked by the court if it looks like the power was used unfairly.
“Where a State bill has been reserved by the governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or mala fide manner. Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint,”
-it said.
Further, if the bill looks completely unconstitutional and the President withholds assent for that reason, then the courts can freely look into that matter as a legal question.
“In such cases, it would be prudent for the President to obtain the advisory opinion of this court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides,”
-it said.
The Court clearly said that Governors must not use their position to stop or delay the work of elected State Governments just for political reasons.
Doing so, the Court said, is against the will of the people who have chosen their leaders through elections.
The Court looked into how the Governor handled – or failed to handle – a bill passed by the Tamil Nadu State Legislature.
The judges clearly stated that the Governor should work with respect towards the traditions of India’s democracy. He should understand that the State Government is chosen by the people, and the Legislature represents their voice.
“The Governor must be conscious to not create roadblocks or chokehold the state legislature in order to thwart and break the will of the people for political [reasons]. The members of the state legislature, having been elected by the people of the state as an outcome of the democratic expression, are better attuned to ensure the well being of the People of the State,”
–the Court commented.
The Supreme Court added that the Governor should act like a guide, philosopher, and friend to the government, and should not behave like a political agent. He should do his duty with honesty and seriousness, based on the oath he takes under the Constitution.
“In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, wisdom, and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be impelled, keeping in mind the dignity of the high constitutional office,”
–it said.
Talking about the Governor’s oath, the Court explained that any act by the Governor which goes against the people’s decision is a violation of the constitutional promise he made.
“Any action contrary to the express choice of the people, in other words, the state legislature, would be a renege of his constitutional oath.”
The bench also reminded that those who hold high constitutional posts, like Governors, must follow the values and ethics of the Indian Constitution. They must make decisions with fairness, not with political bias.
“These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers. When called upon to take decisions, such authorities must not give in to political considerations, but rather be guided by the spirit that underlies the Constitution….They must look within and reflect whether their actions are informed by that constitutional oath, and if the course of action adopted by them furthers the ideas enshrined in the Constitution. If the authorities attempt to deliberately bypass the Constitution, they are tinkering with the very ideals revered by its people upon which this country has stood,”
–the Court further said.
At the end of the verdict, the Supreme Court shared a powerful quote from Dr. B.R. Ambedkar, who was the chief architect of our Constitution. The Court said this message is still very important today, maybe even more than it was back in 1949.
“However good a constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”
Apex Court: No Delay by Governors
In a very detailed and important ruling, the Supreme Court of India gave clear instructions about what a State Governor can and cannot do when it comes to passing State laws under Article 200 of the Constitution.
The judgment focused on how Governors should act quickly and responsibly when a State legislature passes a bill and sends it for approval.
The Court strongly said that Governors cannot delay or block bills for political or personal reasons, and they must respect the decisions of the elected governments. It also gave strict timelines and legal rules to ensure Governors do not misuse their powers.
Let’s understand the key points from this landmark judgment in simple language.
What are a Governor’s options when a bill is sent?
The Court explained that when a State legislature passes a bill, the Governor has only three options under Article 200:
- To give assent (approve the bill).
- To withhold assent (not approve, and return it with suggestions).
- To reserve the bill for the President’s consideration.
If the Governor returns the bill with suggestions and the Legislature passes it again after changes, the Governor must act quickly and cannot keep delaying. Once he withholds assent, he is legally required to complete the process without delay.
Governor cannot sit silently or block bills
The Court made it absolutely clear that the Governor cannot stay inactive after receiving a bill. The Constitution does not allow a “pocket veto” — where a Governor silently ignores a bill.
“Whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available. Further the expression ‘as soon as possible’ in the first proviso, permeates Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them. Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simplicitor withholding of assent, meaning thereby absolute veto, is also impermissible under Article 200. It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another, and that too, with a sense of expediency,”
–the Court said.
This means that Governors must make a decision fast, and cannot use power to completely stop a bill.
Cannot send the same bill to President in second round
If a Governor has already sent back a bill and the Legislature passes it again, the Governor cannot now send it to the President. He must give assent unless the bill has changed significantly.
“The use of the expression ‘shall not withhold assent therefrom’ appearing in the first proviso places a clear embargo on the Governor, and are a clear enunciation of the requirement that the Governor must assent to bills presented to him after complying with the procedure laid down in the first proviso. The only exception to this general rule is when the bill presented in the second round is different from the one presented to the Governor in the first instance,”
-the Court said.
So, the Governor has no choice but to approve the bill if it’s the same one passed again by the House.
Tamil Nadu Governor’s action was illegal
The Supreme Court ruled that the Tamil Nadu Governor’s decision to send 10 bills to the President a second time was against the law and Constitution.
“As a result, any subsequent action taken upon the said bills by the President also does not survive and is thus set aside,”
-the Court ruled.
Since the Governor delayed for too long and did not act honestly, the Court said these bills are now considered approved (assented) from the date they were returned by the legislature.
This extraordinary decision was taken using Article 142, which lets the Court give special directions to do complete justice.
Court gives clear timelines for Governor’s actions
Although Article 200 does not have an exact time limit, the Court said that the Governor cannot keep delaying and should act in a reasonable time. So, the Court decided to set clear timeframes for different actions:
“The use of the expression ‘as soon as possible’ in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent,”
–it clarified.
Here are the timelines fixed by the Court:
- If the Governor agrees to withhold assent or reserve the bill for the President, with the help of the State Cabinet’s advice, he must do this within 1 month.
- If the Governor withholds assent against the State Cabinet’s advice, he must return the bill with a message within 3 months.
- If the Governor reserves a bill for the President against the Cabinet’s advice, he must do it within 3 months.
- If the bill is passed again after reconsideration, the Governor must give assent within 1 month.
If the Governor does not follow these timelines, the courts can review and take legal action.
BK Pavitra judgment was wrong
The Court also discussed an earlier judgment in the BK Pavitra case, which said the Governor has discretion in sending bills to the President. The current bench disagreed with that view.
“Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers,”
-the Court observed.
The judges explained that when the Constitution was framed, the phrase “in his discretion” was removed from the law related to Governor’s role. That means the Governor must mostly follow the Cabinet’s advice and has very limited discretion.
“We say so because the removal of the expression ‘in his discretion’ from Section 75 of the Government of India, when it was being adopted as Article 200 of the Constitution, clearly indicates that any discretion which was available to the Governor under the Act in respect of reservation of bills became unavailable with the commencement of the Constitution. It is also manifest that the decision in BK Pavitra is not in consonance with the observations made by the larger bench decision of this court in Shamsher Singh. The majority opinion in Shamsher Singh, more particularly in para 28 observed that ‘Governor is the constitutional or formal head of the State, and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in this discretion’.”
So, the Court held that the BK Pavitra judgment is per incuriam, meaning it was passed without considering the correct law and must not be followed.
Governor’s decisions can be reviewed by courts
Finally, the Court said that judicial review is a key part of our Constitution, and even the Governor’s actions under Article 200 can be reviewed by courts.
“So withholding of assent or reservation of bills for the consideration of the President in exercise of his discretion, being subject to the limits defined by the Constitution, would be justiciable on judicially determinable grounds,”
-the Court added.
This means that if the Governor misuses his power or delays action, courts can check and stop it.
CASE TITLE:
THE STATE OF TAMIL NADU vs THE GOVERNOR OF TAMILNADU AND ANR.
W.P.(C) No. 1239/2023.
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