Why is it in the News?

Recently, Tamil Nadu, Kerala, and Punjab have approached the Supreme Court to decide a time frame for which Governors have to either return or grant assent to Bills passed by Legislatures

News Summary:

• Punjab government led by Aam Aadmi Party had filed a petition in the Supreme Court, challenging the delay by Governor Banwarilal Purohit in giving assent to the bills passed by the State assemblies or proposed to be tabled by them.
• The recent feud between Purohit and Chief Minister Bhagwant Mann-led government pertains to three money bills that were proposed to be tabled by the State during a Special Session of the fourth Budget Session on October 20.
• The governor's approval is needed to table money bills in the House.
• Tamil Nadu has also accused Governor R.N. Ravi of toying with the citizens’ mandate by sitting on the Bills by neither assenting nor returning them.
• It said the Governor has positioned himself as a “political rival” who has caused a “constitutional deadlock” by simply sitting on the Bills for months together.
• Kerala, in its separate petition, said that eight proposed laws passed by its Legislative Assembly were pending with the Governor, not for months, but years.
• Of the eight, three Bills were waiting for the Governor’s word for over two years.

Observation by the Supreme Court:

• The Supreme Court on Monday expressed acute displeasure at Governors holding back key Bills, especially in Opposition-ruled States such as Punjab, Tamil Nadu, Kerala, and Telangana, until State governments approach the top court for judicial intervention.
• The court also questioned the Assembly’s action to reconvene three months after the Vidhan Sabha was adjourned sine die in March.
• “The Assembly was summoned on March 3 and adjourned sine die, without being prorogued, on March 22. The Speaker then reconvenes the Assembly three months later!
• The Supreme Court also said that Governors must remember that they are not the elected representatives of states and have limited power over the legislative actions of an elected government.

The process of granting assent:

• Article 200 of the Constitution covers the options before the Governor when a Bill passed by both Houses of the Legislature is presented to him.
• The first proviso to the Article says the Governor could either declare his assent to the Bill or withhold the assent if it is not a Money Bill or reserve the law for the consideration of the President if he thinks the Bill derogates from or endangers the power of judicial review of the High Court.
• In case the Governor chooses to withhold assent, he should return the Bill “as soon as possible” with a message requesting the Legislative Assembly to reconsider the proposed law or any specified provisions or suggest amendments.
• The Assembly would reconsider and pass the Bill, and this time, the Governor should not withhold his assent.
• In short, the constitutional head of the State would bow to the considered decision of the elected representatives of the people.

Do Governors have discretion?

• Governors did have the discretion to return Bills before the first proviso in the draft Article 175 (now Article 200).
• This was amended by the Constituent Assembly in 1949.
• Though it was thought that the Governor’s exercise of discretion would act as a “potential check on disruptive legislative tendencies” by States, Dr. B. R. Ambedkar, while introducing the amended proviso, said, “in a responsible government there can be no room for the Governor acting on discretion”.
• T. T. Krishnamachari, a Constituent Assembly member from Madras and later Finance Minister, approved of the amendment, saying “The Governor cannot act on his own, he can only act on the advice of the Ministry.
• When a Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers”.
• Mr. Krishnamachari explained that if the Bill passed by the Legislative Assembly needs modification or has garnered adverse public opinion, the government uses the Governor to return the Bill to the Lower House as quickly as possible for re-legislation.
• The first proviso to Article 200 is thus a “saving clause” and retains the discretion over the fate of the Bill solely in the hands of the State Cabinet.
• Article 163 of the Constitution makes it clear the Governor is not expected to act independently.
• The Supreme Court in the Shamsher Singh case verdict has held that as a formal head of the State, a “Governor exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.”
• The assent or return of the Bill does not involve the discretion of individuals occupying the Governor’s post.

By when should Bills be returned?

• The first proviso of Article 200 says it should be “as soon as possible”.
• The Constitution is silent on what exactly this phrase means.
• The Supreme Court has interpreted “as soon as possible” in the proviso to mean “as early as practicable without avoidable delay” in its 1972 judgment in Durga Pada Ghosh versus the State of West Bengal.
• Justice (now retired) Rohinton F. Nariman, in his 2020 judgment in the Keisham Megha Chandra Singh case, said a ‘reasonable time’ would mean three months.
• The States have urged the court to interpret the phrase in the proviso and fix a time limit by which Governors should assent or return a Bill.
• The 1988 Sarkaria Commission report on Centre-State relations had suggested consultation with the Governor while drafting the Bill and fixing a deadline for its disposal.

What Efforts Have Been Made to Address Concerns Regarding Governors' Alleged Partisan Role?

• Proposal by Sarkaria Commission: The Sarkaria Commission, set up in 1983 to look into Centre-state relations, proposed that the Vice President of India and the Speaker of Lok Sabha should be consulted by the Prime Minister in the selection of Governors.
• National Commission to Review the Working of the Constitution (2000): The Commission recommended significant changes in the selection of Governors.
• The Commission suggested that the “Governor of a State should be appointed by the President, after consultation with the Chief Minister of that State”.
• Punchhi Committee Proposal: The Justice Madan Mohan Punchhi Committee, constituted in 2007 on Centre-state relations.
• The committee proposed in its report that a committee comprising the Prime Minister, Home Minister, Vice President, Speaker, and the concerned Chief Minister should choose the Governor.
• The Punchhi Committee recommended deleting the “Doctrine of Pleasure” from the Constitution but backed the right of the Governor to sanction the prosecution of ministers against the advice of the state government.
• It also argued for a provision for impeachment of the Governor by the state legislature.

The Way Forward

• While Governors may hold differing views on the content of a Bill and have constitutional options at their disposal, they should refrain from using their authority to obstruct legislation they personally disagree with.
• It's essential to put into practice the principle recommended by the Punchhi Commission, which assessed Centre-State relations and proposed that Governors should not be burdened with the role of Chancellors.
• Governors sometimes appear to have an overly elevated perception of their constitutional roles. Their primary duty is to uphold the Constitution and, if necessary, advise elected governments to align with its provisions. However, this responsibility does not grant them the authority to operate as an independent power center by exploiting the absence of a specific time frame for decision-making and their discretionary powers.