The Kerala government has approached the Supreme Court seeking similar directions, as it claims that then Governor Arif Mohammed Khan had delayed approval of several bills by either withholding them or referring them to the President, and those bills still remain pending.
New Delhi – Today, 22nd April: The Supreme Court of India has agreed to hear on May 6 the petitions filed by the Kerala government against its Governor, alleging unjustified delay in granting assent to several bills passed by the Kerala Legislative Assembly.
A bench of Justices P S Narasimha and Joymalya Bagchi considered the matter after senior advocate K K Venugopal, appearing for the Kerala government, referred to a recent Supreme Court judgment in the Tamil Nadu case that addressed similar constitutional concerns.
“I have the habit of calling you Mr. AG whenever I see you,” the judges remarked light-heartedly while addressing Venugopal.
Venugopal highlighted that the Supreme Court bench led by Justice J B Pardiwala had already laid down important guidelines and time limits for the Governor and the President regarding the approval of state bills.
He said,
“What is the timeline for making a reference to the President by the governor and this issue is dealt with by that judgement.”
Responding to this, the bench said,
“We will look into that judgement and see whether issues raised here are covered,” and fixed the next hearing for May 6.
Meanwhile, Attorney General R Venkataramani and Solicitor General Tushar Mehta, representing the Union government and the Kerala Governor’s office, disagreed with Venugopal. They stated that the issues raised by Kerala are different from those addressed in the Tamil Nadu case.
Tamil Nadu Governor Verdict
On April 8, a Supreme Court bench of Justices J B Pardiwala and R Mahadevan gave a historic ruling on the Tamil Nadu government’s petition. It struck down the Governor’s second-time reservation of 10 state bills for the President’s consideration, calling it “illegal, erroneous in law.”
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.
For the first time, the apex court laid down a timeframe for the President to decide on bills sent by a Governor under Article 200 or 201 of the Constitution.
According to the court,
“The President should decide on the bills reserved for her consideration by the governor within a period of three months from the date on which such reference is received.”
Kerala’s Complaint Against the Governor
The Kerala government has approached the Supreme Court seeking similar directions, as it claims that then Governor Arif Mohammed Khan had delayed approval of several bills by either withholding them or referring them to the President, and those bills still remain pending.
The hearing pertained to a second petition filed in 2024, challenging President Droupadi Murmu’s decision to withhold assent to four of seven bills forwarded to her in 2023 by Kerala Governor Arif Mohammed Khan.
Senior Advocate Venugopal argued that the matter was already settled by a recent verdict in the Tamil Nadu Governor’s case.
“Both petitions are covered by recent judgment (in Tamil Nadu Governor’s case) … on what is time limit after reference to President, that is held to be 3 months. No other question arises here,” Venugopal submitted.
However, Solicitor General Tushar Mehta disagreed, stating he intended to demonstrate why the Tamil Nadu judgment does not apply to the present case.
“It is not covered my lord,” SG Mehta asserted.
Supporting this view, Attorney General R Venkataramani added:
“I would say very humbly, with deep respect to Mr. Venugopal, the judgment does not cover certain issues in this case on facts that are essentially different. We would like to show the differences, I will put in a note.”
During the proceedings, Venugopal informed the Court that the Kerala government was withdrawing an amendment application which had earlier sought specific guidelines on the Governor’s role under Article 200 of the Constitution.
He clarified that this was no longer necessary in light of the Supreme Court’s ruling in the Tamil Nadu Governor case, which addressed those issues adequately.
The Supreme Court had earlier, on July 26 last year, agreed to consider Kerala’s plea where the state alleged that the Governor’s inaction was a violation of democratic and constitutional norms.
In response, the top court had issued notices to the Union Ministry of Home Affairs and the offices of the Kerala Governor, including relevant secretaries.
Case Title: THE STATE OF KERALA AND ANR. v. HONBLE GOVERNOR FOR STATE OF KERALA AND ORS.| W.P.(C) No. 1264/2023
