Constitutional silences, unconstitutional inaction

Source: This post is created based on the article “Constitutional silences, unconstitutional inaction”, published in The Hindu on 26^th December 2022.

Syllabus Topic: GS Paper 2 – Indian Polity – Issues related to federal structure

Context: Constitution does not prescribe any time limit for Governor to give assent to bills passed by the Legislative Assembly. It has led to arbitrary holding of bills.

The Constitution adopted by India allows for the modification and amendment of its provisions by the Parliament in accordance with the will of the people.

However, it has left many gaps. One such gap is under article 200 of the constitution, the lack of a timeline for the Governor to give assent to bills passed by the Legislative Assembly.

This has allowed Governors in states with opposition-ruled governments to delay the implementation of democratically elected mandates. Few such examples are the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Bill and the Kerala Lok Ayukta (Amendment) Bill.

This situation is also present in the states of Telangana and West Bengal.

Similarly, President also has been acting arbitrarily in granting assent to the Bills reserved by the Governor for the consideration of the President, under article 201. For example, National Eligibility cum Entrance Test (NEET)-exemption Bill.

However, there is a time-limit of 6 months for the State Assembly to reconsider the Bill if the President decides to refer it back to the House.

What has been the position of judiciary and legislatures on timelines for Governor and President on giving assent?

Constituent Assembly: During a Constituent Assembly discussion on the draft of Article 200, Professor Shibban Lal Saxena pointed out that there is no prescribed time limit for the Governor to act.

Purushothaman Nambudiri vs State of Kerala (1962): The Supreme Court (SC) has also clarified that the Constitution does not specify a time limit for the Governor to provide assent to Bills. But Courts have maintained that the Governor or President must honour the will of the Legislature and act only in harmony with their Council of Ministers.

Any delay to assent Bills will be an arbitrary exercise, which in itself is constitutionally unjust.

National Commission to Review the Working of the Constitution: Commission led by A.B. Vajpayee government in 2000 recommended, there should be a time-limit, for the Governor to take a decision whether to grant assent or to reserve a Bill for consideration of the President.

What should be done?

Sarkaria Commission: The commission suggested that the delay from the side of the Governor in granting assent can be avoided by streamlining the existing procedures. Prior consultation should be held with the Governor at the stage of the drafting of the Bill itself, and by prescribing time-limits for its disposal.

Keisham Meghachandra Singh vs The Hon’ble Speaker, Manipur Legislative Assembly (2020): In this case of anti-defection law, the SC held that the Speaker must act on disqualification petitions against the defecting MLAs within a ‘reasonable time’. It clarified in the same judgment that reasonable time is three months in the case of disqualification petitions. The same reasonable time limit should be set for Governor.

Westminster system: The bedrock of the Westminster system is the concept that the Queen reigns, but the Ministers rule. Therefore, the Governor’s duty is only to ensure that an elected government is working within the parameters of the Constitution. The constitutional vacuum should not give way for unconstitutional inaction, leaving space for anarchy in the rule of law.