What's New

STATES VS GOVERNORS: THE NEED FOR CLARITY

Relevance:

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

Why in the News?

• The issue of governors withholding assent to bills passed by state assemblies has come to the forefront
• In recent times, with three state governments – Punjab, Tamil Nadu, and Kerala – approaching the Supreme Court for intervention.

Source: The Hindu

 The Central Question: Discretion or Obligation?

• The crux of the matter lies in determining whether the governor possesses the discretion to indefinitely withhold assent to a bill passed by the assembly.
• Flaws in Article 200 :

While some argue that Article 200 of the Constitution, which deals with assent to bills, does not specify a timeline for disposal, this argument is flawed.

• The Constitution clearly mandates the governor to act promptly upon receiving a bill. Article 200 and the Governor’s Options

Article 200 and the Governor’s Options

Article 200 outlines four options available to the governor:

• Assent: The governor can give assent to the bill, signifying approval and allowing it to become law.
• Withhold Assent: The governor can withhold assent, effectively blocking the bill from becoming law.
• Reconsideration: The governor may send the bill back to the assembly for reconsideration, addressing any concerns or seeking clarifications.
• Presidential Consideration: The governor can reserve the bill for the president’s consideration, who may then assent to or withhold assent.

Implications of Indefinite Delay

• Instances of governors holding bills indefinitely raise concerns about the smooth functioning of the legislative process. (as in case of Telangana)
• The Supreme Court needs to address this issue to provide clarity and guidance for future cases.
• The issue raised by the states requires the court’s consideration for establishing legal precedent. 

The Governor’s Constitutional Obligations

• The Constitution mandates that the governor must choose one of the four options outlined in Article 200.
• Sitting on a bill indefinitely is not a constitutionally permissible option.
• The governor’s duty is to facilitate the legislative process, not to hinder it.

Immediate Action Mandate

• The prompt handling of bills is emphasized in Article 200.
• The phrase “as soon as possible” indicates that the governor is obligated to act promptly, not delay the process.

Withholding Assent: A Rare and Conditional Power

• While the governor has the power to withhold assent, this power is rarely exercised and is intended to be used judiciously.
• It is important to note that the governor cannot withhold assent without the advice of the Council of Ministers.
• However, this power is rarely exercised, aligning the governor’s position with the sovereign in England.

Article 355 and the Union Government’s Role

• Article 355 of the Constitution empowers the Union government to ensure that each state government adheres to the provisions of the Constitution.
• This includes ensuring that governors fulfill their constitutional duties and do not obstruct the legislative process.

Supreme Court’s Position and Scope of Intervention

• No explicit ruling

While there is no explicit Supreme Court ruling on the issue of governors withholding assent, the prevailing practice is for governors to refrain from doing so.

• The Supreme Court needs to clarify whether the governor is bound by the advice of the Council of Ministers when making decisions related to assent, withholding assent, or reserving a bill 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.

Evolution 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.

The issue of governors withholding assent to bills passed by state assemblies is a complex one, with implications for the separation of powers, the legislative process, and the rights of elected representatives. The Supreme Court’s intervention in this matter is crucial to provide clarity, uphold the principles of the Constitution, and safeguard the democratic process.

————————————————————————————————————

Source:

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

————————————————————————————————————

Mains Practice  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)