Governor Can't Veto Legislature By Simply Withholding Assent To Bill; Must Return Bill To Assembly On Withholding Assent : Supreme Court
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23 Nov 2023 8:19 PM
Governor Cant Veto Legislature By Simply Withholding Assent To Bill; Must Return Bill To Assembly On Withholding Assent : Supreme Court
The Governor, as an unelected Head of the State, cannot thwart the normal course of lawmaking by the State Legislatures, Court said.
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The Supreme Court has held that if a Governor decides to withhold assent to a Bill, then he has to return the bill to the legislature for reconsideration.
This clarification by the Court is important because Article 200 of the Constitution does not expressly state what should be the next course of action after a Governor withholds assent for a Bill.
According to Article 200, three courses of action are open to the Governor - grant assent, withhold assent or reserve the bill for President's consideration. The proviso to Article 200 says that Governor may return a bill to the assembly along with a message of aspects requiring reconsideration and if the House adopts the bill again, whether with or without amendments, then the Governor will be bound to grant assent.
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There was an ambiguity as to whether the Governor is bound to return the bill to the assembly if he is declaring that he is withholding assent. This situation arose recently in Tamil Nadu, where the Governor declared that he was withholding assent over certain bills. The Governor did not return those bills to the house; yet, the assembly readopted the very same bills.
During the hearing of the writ petition filed by the State of Tamil Nadu against the Tamil Nadu Governor's inaction on bills, the Supreme Court had pondered on whether the Governor is bound to return a bill to the house after withholding assent or whether the Governor can simply say that he was withholding assent.
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Today, the Supreme Court uploaded its judgment in the case filed by the State of Punjab against the Punjab Governor (which was decided on November 10). In this judgment, the Court has provided an answer to this issue.
"If the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso," observed the judgment delivered by a bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra.
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The judgment stated that if such an interpretation is not adopted, then the Governor will be in a position to derail legislative process by simply saying he was withholding the assent.
"If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso".
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Governor only a symbolic head; real power with elected representatives
In the judgment, the Court reaffirmed that the Governor is an unelected Head of the State and cannot use his constitutional powers to thwart the normal course of lawmaking by the State.
"The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures."
"In a Parliamentary form of democracy real power vests in the elected representatives of the people. The governments, both in the States and at the Centre consist of members of the State Legislature, and, as the case may be, Parliament. Members of the government in a Cabinet form of government are accountable to and subject to scrutiny by the legislature. The Governor as an appointee of the President is the titular head of State"
In the Punjab matter, the Governor kept the bills pending by doubting the validity of the assembly session in which they were passed. Notably, the Governor did not ‘declare’ in any public notification that he is withholding his assent to the Bills. The Governor advised the Chief Minister to call for a fresh Monsoon/Winter Session and to forward an agenda setting out the specific business to be conducted so as to enable him to grant permission for the summoning of the House to transact the business.
Aggrieved by the inaction of the Governor, the State of Punjab invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution.
Also from the judgment -Governor Can't Doubt Validity Of Assembly Session : Supreme Court Asks Punjab Governor To Decide On Pending Bills
Case Title: The State Of Punjab v Principal Secretary To The Governor Of Punjab And Anr. W.P.(C) No. 1224/2023
Supreme Court Questions Tamil Nadu Governor For Referring Bills To President, Says He Can't Do It After Withholding Assent
The Supreme Court on Friday (December 1) questioned the decision of Tamil Nadu Governor RN Ravi to refer bills to the President, after declaring that he was withholding assent on them. The bench led by Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra orally said that the Governor cannot refer the bills to the President after the Assembly has re-enacted the Bills following the Governor's declaration of withholding the assent.
The bench said that the Governor has only three options as per Article 200 - granting assent, withholding assent or referring to the President- and that after exercising any of these options, he cannot then exercise another option.
On November 13, the Governor had declared that he was withholding assent on ten bills. Following that, the Tamil Nadu Legislative Assembly convened a special session and re-enacted the very same bills on November 18. On November 20, the Supreme Court had questioned the Governor for keeping the bills pending for over three years. On November 23, the Supreme Court publicised its judgment in the Punjab Governor's case which categorically held that a Governor must return the bill to the Assembly if he was withholding assent on it and that he cannot indefinitely sit over it.
Today, Senior Advocate Dr.Abhishek Manu Singhvi, appearing for the State of Tamil Nadu, told the benchthat there was a "new development" in the matter - on November 28, the Governor referred the bills to the President. "This hits the Constitution," Singhvi lamented.
CJI DY Chandrachud observed that the Governor cannot refer the bills to the President after he has exercised the option of withholding assent over them.
impasse is resolved at the level of the Governor, without waiting for a judgment from the Court. CJI suggested to the AG that the Governor can invite the Chief Minister for a talk and resolve the issue.
"Mr Attorney, there are so many things which need to be resolved between the Governor and the CM. We would appreciate if the Governor sits with the CM and resolves this. I think it would be appropriate if the Governor invites the CM," CJI told the AG.
The matter will be next considered on December 11. The bench is also considering a similar matter in relation to the Kerala Governor.
Case : State of Tamil Nadu v. Governor of Tamil Nadu, Writ Petition(s)(Civil) No(s). 1239/2023
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