Governance, subject to a reference
In a democracy, the highest office is the office of citizen
– Felix Frankfurter (US Supreme Court Judge)
There have been ‘Fourteen Questions’ by the President and ‘Fourteen References’ so far by the President under Article 143 (1) since independence – what serendipity! In the light of the Supreme Court verdict on 8 April, fixing timelines for governors and the President to clear the state bills, President Droupadi Murmu has sought clarifications on gubernatorial powers, her discretionary role, as also applicability of judicial review and whether timelines can be fixed for such duties. On the dock of a constitutional debate requiring a Constitution Bench are Article 200 (Governor’s powers to give assent), Article 201 (President to consider Bills that are reserved), Article 142 (power of the apex court to do complete justice), Article 361 (inapplicability of judicial review for any act done in official capacity as Governor or President), Article 145 (3) (substantial question of law requiring a Constitution Bench) and Article 131 (original jurisdiction of the Supreme Court to deal with Centre-State disputes).
One can only imagine the growth paralysis, should the governor fail to oversee state initiatives in the area of foreign investment. Although largely formal as a constitutional functionary, the powers of the governor extend to even recommend a Presidential rule in a state, which can drastically alter the complexion of that state in terms of attracting any foreign investment. For example – if there is a bill promoting investments in energy, construction or insurance and if the governor withholds his/her assent purely for political reasons, can it be permitted? That will bring the smooth functioning of democracy to a halt. To have a debate or a disagreement on the passage of a bill in either house of the Parliament is different from choking it with one’s discretionary power. The Apex Court, by stipulating timelines (as discussed below) did right in limiting the ‘discretion’ to observing that it does not mean the ‘power to not exercise it; that is, to not do something’ – on the contrary, it means to act either in the favour of the bill or against it.
Although a titular head, the governor’s powers are vast, in the sense that he can prorogue the state legislature and can even dissolve state assemblies. Promulgation of an ordinance when either the legislative assembly or a council are not in session is as impactful as the power to grant pardons or remit or commute sentences. The financial powers can extend to overseeing the state budget, including a contingency fund, from which he/she can make advances to meet some unforeseen expenditure.
Perhaps, the most interesting question among the Reference Questions is: ‘Are the decisions of the governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justice-able at a stage anterior into the law coming into force? Is it permissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law?’ The apex court precedents abound, with provisions of various bills being constitutionally challenged. And, why should this be any different merely because the usage or more so the non-usage of the powers was called into question on 8 April?
What will bemuse any lawyer of sufficient practice at the bar or even a judge is the ‘exhaustiveness’ of the questions posed. Normally, the reference is specific and not generic but should the Supreme Court opt to answer this (which I am sure it will, as it has answered all except the Ayodhya Reference), it would be nothing short of a doctoral thesis on the subject. This ‘reference’ brooks thought, because it is an indirect review petition to the Supreme Court asking for it to reconsider its 8 April judgment. Besides, it is rather inopportune that this was sent to the Supreme Court the day the new Chief Justice was sworn in. Perception does matter in issues of such gravity. What appears to have peeved the government is: how can the top court issue a supposed Writ of Mandamus to the government, when writ jurisdiction of the court extends only to actions of the state or its inactions. But to view ‘setting of a timeline’ as some sort of a ‘mandate’ is rather egotistical. Any parliamentary democracy functions on three pillars – the legislature, the executive and the judiciary. And, if any one arm appears to be not doing its duty, the other arm/s has/have to take over. This oxygenizes democracy.
Suffice to say that none of this would have transpired had the governor given the assent, thereby upholding the constitutional values. The Apex Court being the constitutional sentinel cannot be a silent spectator to a democratic paralysis. And for the government to consider as an affront or Parliament to think that it is supreme is living in some sort of a vacuum, oblivious of the history of any ‘democracy’ – right from the days of Magna Carta issued by King Edward in 1300; or even to Aristotle (who simply defined it as a form of government, where the ruler and the ruled take turns).
The Supreme Court’s verdict on 8 April, in the case of ‘State of Tamil Nadu vs Governor of Tamil Nadu’ essentially altered constitutional dynamics between state legislatures and the governors, asserting that inaction and delay by a governor on bills cannot halt democratic progress. This judgment deems bills to be ‘automatically assented’, if the governor fails to act in a stipulated time period.
Back in November 2023, the Tamil Nadu government had filed a petition after the governor R.N. Ravi held back assent to 10 bills that had been passed by the state legislature. These bills were to transfer administrative control of state universities to the elected government, instead of the governor. When the Tamil Nadu Assembly re-passed these bills and sent them to the governor again, they were reserved for President’s consideration, instead of granting assent. And when the governor does so under Article 201, he/she is mandated to declare whether she assents to the bill or withholds it. This, however, was not done stultifying the legislative process on its tracks. This move was rendered ‘illegal’ and ‘unconstitutional’ by the Supreme Court.
The dispute primarily centred on Articles 200 and 201 of the Constitution. Article 200 grants a governor three options when a bill is presented to him/her after legislative approval – he/she can either grant assent, withhold assent (mandating legislative reconsideration of the bill) or he/she can reserve the bill for the President’s scrutiny. However, the first proviso clarifies that if the bill is re-passed by the legislative body, then the assent of the governor is mandatory. Similarly, Article 201 provides the President with three options, which include granting assent, withholding assent or returning the bill for reconsideration.
The Supreme Court passed a 415 415-page judgment which highlighted three major principles.
# No absolute veto power: The governor cannot establish an absolute veto power by either denying or withholding assent. The Court cited State of Punjab vs Principal Secretary (2023), which affirmed that withholding assent means the bill must be returned to the legislature for reconsideration, instead of passive inaction.
# Stringent timelines: The Court strongly imposed the importance of timelines to prevent delays. The governors have one month for granting assent to re-passed bills and three months if a bill is reserved for President’s reconsideration.
# Judicial review: The Court affirmed that governor’s actions or inactions are subject to judicial review. Rejecting the Attorney General’s argument that Article 163 ensures immunity, it stated that unaccountability would allow governors to ‘thwart the legislative machinery’.
By nullifying the power of absolute veto, partisan abuse of governorship is eliminated, which has previously been observed in states like Tamil Nadu, Punjab and Kerala. The court’s analysis confirmed that withholding assent requires the bill to be sent for reconsideration and ensures legislative primacy. As reflected in the Tamil Nadu case, gubernatorial delays cause obstruction of public welfare measures. The establishment of a timeline prevents governors from indefinitely delaying bills and restores public trust in the elected government.
Both as a practicing lawyer for three decades and as an ethicist, I have learnt to see a decision (especially of the Apex Court) from a futuristic perspective. I can only imagine the worst, if this judgment of 8 April had not been passed delineating the ‘discretion’ of the governor. In the absence of a judicial diktat, the executive prowess can go unchecked in a large democracy like ours, where half the population is not that evolved as citizens and are barely trying to make two ends meet.
To conclude, the 8 April judgment has been a saviour and the answer to the Presidential Reference won’t be (and shouldn’t be) any different.
The author is a senior lawyer and president, Council for Fair Business Practices