G20 podium
ON March 24, 2023, the Supreme Court sent a strong message to the Governors of the states that they should return the Bills that they do not agree to “as soon as possible” and not sit over them.
Although the Bench did not assign any timeline to clear or return the Bills as demanded by the Government of Telangana, the Bench’s “as soon as possible” remark was recorded as a judicial order. The phrase “as soon as possible” has a significant content and must be borne in mind, the court noted.
The order was passed against the backdrop of the communication received from the office of the Governor which said that there were no Bills pending with her. The court disposed of the petition but kept open the question that arose from the issue for consideration in an appropriate case.
Telangana Govt plea
The Bench was dealing with a petition filed by the Government of Telangana against the Governor alleging inaction in respect of several Bills sent to her by the state legislature for assent. It was stated that about 10 Bills were pending with the Governor since September 2022 onwards.
It was argued that in terms of Article 200 of the Constitution of India, the Governor is required to give her/his ascent, or return the Bill for reconsideration of the Legislative Assembly or reserve the Bill for the consideration of the President, in which case it has to be sent to the Ministry of Home Affairs, Government of India.
The Governor may or may not give assent to the Bill. However, a decision should be taken this way or that rather than keeping the Bills pending for months together.
Indefinite delays in giving assent to important Bills is leading to a constitutional impasse and also obstructing the Legislature from carrying out the will of the people.
After the state Government petitioned the Supreme Court, some of the Bills were returned with a message for reconsiderations and clarifications in respect of some others were sought.
Not the first instance
This is indeed not the first instance in which a state Government has complained against a Governor for delay in giving his/her assent to a Bill passed by the state legislature. The states of Chhattisgarh, Kerala and Tamil Nadu, among others, have had similar grievances in the past.
In the meanwhile, the Tamil Nadu Legislative Assembly passed a resolution urging the President of India and the Union Government to advise the Governor to decide on the Bills passed by the state Legislature within a reasonable time period.
The Government of Tamil Nadu also urged the other state governments to get similar resolutions passed by their respective Assemblies and send them to the President. Giving a twist in the tale, the Governor of Tamil Nadu allegedly observed that the Governor has the power to kill a Bill by withholding assent.
The Supreme Court has repeatedly ruled that the legislative power of Governors is extremely limited and that they are bound by the aid and advice of the Council of Ministers.
From the judgment of a seven-judge constitutional Bench in Shamsher Singh and Anr vs. State of Punjab (AIR 1974 2192) to the five-judge constitutional Bench in Nabam Rebia vs. Deputy Speaker and Ors. [(2017) 13 SCC 326], the Supreme Court has consistently held that the Governor can normally act only on the aid and advice of the Council of Ministers and cannot exercise any executive powers as an independent authority.
Limited discretion
In Nabam Rebia (2016), in particular, the court came to the conclusion that the discretionary power given to the Governor is limited to the scope postulated in Article 163(1); its ambit is not open to broader interpretation; there should not be any conflict of interest; and its exercise should not be final and immune from judicial review.
The court observed that “…such a nominee cannot have overriding authority over the representatives of the people, who constitute the House or Houses of State Legislature…” The Governor’s power to withhold assent or return a Bill, with a message, for reconsideration is mistakenly seen as discretionary.
In the Constituent Assembly, it was explicitly clarified that returning a Bill was to be done only on the advice of the Council of Ministers and that it was an enabling provision for the Government to recall a pending Bill in case it had second thoughts on it.
But this is quite ambiguous; why would a Government introduce a Bill in the Legislature, in the first place, if it was not interested in its passage? Moreover, the Government can always withdraw a Bill which has been introduced in Parliament or the Assembly with its approval. Why then get the Governor get involved in the process?
