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STATES VS GOVERNORS NEEDS CLARITY FROM SUPREME COURT

Relevance: GS2 – Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.

Why in the News?

• No Supreme Court pronouncement on the issue of governors withholding assent to bills passed by the assembly.
• Three state governments (Punjab, Tamil Nadu, and Kerala) have approached the Supreme Court regarding governors holding back bills passed by the assembly.
• Petitions filed by these states seeking the court’s intervention.
• Chief Justice of India D Y Chandrachud has made initial observations on Punjab’s petition where he noted that governors should recognize they are not elected representatives of the people.

Issues which is under consideration

• The central question revolves around whether the governor, under the Constitution, possesses the discretion to withhold assent to a bill indefinitely.
• Misguided Argument: Some argue that since Article 200, which addresses assent to bills, lacks a specified timeline for disposal, governors can potentially delay bills indefinitely. This argument is fundamentally flawed.
  • This Article requires the governor to promptly assent to a bill without delay upon receipt.
  • Article 200 outlines four options available to the governor.
    • Assent: The governor can give assent to the bill.
    • Withhold Assent: Another option is to withhold assent.
    • Reconsideration: The governor may send the bill back to the assembly for reconsideration.
    • Presidential Consideration: The fourth option is to reserve the bill for the president’s consideration.

Implications to the issue:

• Governors in these states might decide on pending bills before the court commences hearings, as seen in the Telangana case.
• Regardless of governors’ decisions, the Supreme Court needs to address the states’ concerns for future guidance to governors.
• The issue raised by the states requires the court’s consideration for establishing legal precedent.
• No Discretionary Power:
  • The Constitution mandates the governor to choose one of these options.
  • The governor lacks any discretion in this matter; sitting on a bill is not a constitutionally provided option.
  • The governor cannot unduly delay the legislative process; a decision from the provided options is obligatory.

Constitutional Mandates

• Reservations and Assembly Reconsideration:
  • If the governor holds reservations about the bill, the Constitution directs immediate action.
  • The governor is obligated to send the bill to the assembly “as soon as possible” after receiving it.
  • The use of the phrase “as soon as possible” indicates an imperative for immediate action, not delay.
• Immediate Action Mandate:
  • Article 200 clarifies that either giving assent or sending the bill for reconsideration must be carried out promptly upon receiving the bill.
• Withholding Assent Power:
  • The Constitution grants the governor the power to withhold assent.
  • However, this power is rarely exercised, aligning the governor’s position with the sovereign in England.
    • Similar to the king of England, it is unconstitutional for the governor to withhold assent without the advice of the Council of Ministers.
  • Article 355 Mandate: It mandates the Union government to ensure that each state’s government operates in accordance with the provisions of the Constitution.

Supreme Court’s Position:

While there’s no explicit Supreme Court ruling on this matter, the prevailing practice is that the governor does not withhold assent to a bill passed by the assembly.

• The Supreme Court needs to clarify whether the governor is required to act on the advice of the Council of Ministers when making decisions related to assenting to a bill, withholding assent, or reserving it for the president’s consideration.
• Scope of Court Intervention: The Supreme Court’s ruling emphasizes that the legal bar under Article 361 is against the court’s power to issue notices or make the president or governor answerable. However, the court retains the authority to examine the validity of actions, particularly when they are mala fide or ultra vires.

Chronology of the Article 200

• Government of India Act of 1935 – Section 75: It granted the governor the discretion in decisions regarding assent, withholding assent, or sending the bill for legislative reconsideration.
• Constitutional Changes in Article 200: The term “discretion” present in Section 75 was omitted in Article 200 of the Constitution. Despite this change, the wording of Article 200 and Section 75 remains the same.

Concerns related to bills

• Unusual Delay in Bill Processing: Governors holding bills for an extended period without apparent reason is a peculiar situation. Constitutional authorities are expected to act reasonably and within a reasonable timeframe.
• Urgency in Legislative Process: Bills presented by the government to the legislature carry a sense of urgency. Article 200 specifies that the governor must send the bill to the assembly “as soon as possible,” creating an implicit time frame.
• Mandatory Urgent Steps: The constitutional mandate requires the governor to either give assent or send the bill back to the assembly promptly. The absence of a specific timeline in terms of months or weeks is compensated by the constitutional scheme emphasizing the completion of the legislative process within a reasonable time.

Significance of Timely Action:

• A delay of two or three years in providing assent contradicts the constitutional scheme and undermines the legislative process, amounting to a total negation of its intended framework.
• Governor’s Role and Governance Standstill: Situations may arise, such as when a governor withholds assent to crucial bills, bringing governance to a halt and rendering the legislature irrelevant.
  • In such cases, it becomes the responsibility of the Union government to direct the governor to fulfill their constitutional duties.
• Legal Immunity Under Article 361: Article 361 provides absolute immunity to the governor against legal proceedings. Doubts regarding the legality of a petition against the governor may arise.
  • Supreme Court Clarification – Rameshwar Prasad v. Union of India (2006): It clarified that absolute immunity does not cover mala fide or ultra vires acts.
    • The court stated that a mala fide act is beyond the scope of power and has no legal standing.
  • Limits to Legal Immunity: While Article 361 protects the governor from legal proceedings, it does not shield actions that are mala fide or ultra vires. The court can examine the validity of actions taken by the governor in such cases.

Source:

https://www.newindianexpress.com/opinions/2023/nov/15/states-vs-governors-needs-clarity-from-supreme-court-2632883.html

Mains question

Examine the constitutional dynamics between states and governors in the context of withholding consent to bills passed by state assemblies. Suggest reforms for it. (250 words)