Pending Bills, the issue of gubernatorial inaction

Source– The post is based on the article “Pending Bills, the issue of gubernatorial inaction” published in “The Hindu” on 25th April 2023.

Syllabus: GS2- Issues and challenges pertaining to federal structure

Relevance: Issues related to power of governor related to legislative matters

News- Recently, Tamil Nadu Assembly passed a resolution urging the President of India to fix a timeline for assent to be given to Bills passed by the Assembly.

Is it appropriate on part of the state to pass a resolution for informing the President about inaction of the governor on a bill passed by legislature?

Article 355 of the Constitution says that it shall be the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

This article was meant to provide justification for central intervention in the States. But, its scope and range need to be widened.

The Constitution requires the Governor to act when a Bill is passed by the Assembly as per the options given in Article 200.

If he does not act in accordance with the Constitution, he is creating a situation where governance of the state is not in accordance with constitutional provisions.

In such a situation, the government of the State has a constitutional duty to invoke Article 355 and inform the President about it. So, a resolution by the Assembly should be considered legitimate action.

What are the powers of the governor in respect of the Bill passed by assembly and presented to her?

Article 200 provides options to the Governor when a Bill is presented to him after being passed by the legislature. These options are: to give assent; to withhold assent; to send it back to the Assembly to reconsider it; or to send the Bill to the President for his consideration.

In case the Assembly reconsiders the Bill as per the request of the Governor under the third option, he must give assent even if the Assembly passes it without accepting any of the suggestions of the Governor.

Sitting on a Bill passed by the Assembly is not an option given by the Constitution. The Governor, by doing so, is only acting against constitutional direction.

What are issues regarding the governor’s power to withhold assent to a bill passed by the state legislature?

A plain reading of Article 200 suggests that the Governor can withhold the assent.

So, the question of crucial importance is whether the Governor can withhold his assent to a Bill in exercise of his discretionary powers. Or, whether he can do so only on the advice of the Council of Ministers.

Under Article 154 of the Constitution, the Governor can exercise his executive powers only on the advice of the Council of Ministers. So, there is a view that the Governor can withhold assent to a Bill only on ministerial advice.

But another view is that why the Council of Ministers should advise the Governor to withhold assent after the Bill has been passed by the Assembly. If the government wanted to repeal it after it became an Act, it could have it repealed by the House.

The government can also advise the Governor to withhold assent if it has second thoughts on the Bill after it has been passed.

Under the Indian Constitution, the exercise of the power vested in the Governor to withhold assent may not be confined to the Council of Ministers advising the Governor. But the larger question is why a Governor should be allowed to withhold assent when the Bill is passed by the Assembly.

A Bill is brought before the Assembly when there is some urgency about legislation. It may be a part of the policy of the elected government.

Under the constitutional scheme, the Governor is only a constitutional head and has no real powers. Withholding assent means the death of that Bill.

Thus, the Governor can negate the will of the legislature, and thereby negate the will of the people. The Constitution cannot be assumed to permit the Governor to do that.