The Issue of Governors Withholding Assent to Bills- Explained Pointwise

Introduction

The Governors, in various instances in the last few years, have delayed and sometimes withheld giving assent to Bills passed by State legislatures.

Recently, the Tamil Nadu Governor ‘withheld’ assent for certain Bills passed by the Legislative Assembly. Earlier, the Tamil Nadu NEET Bill for granting exemption to TN from the National Eligibility cum Entrance Test (NEET) was reserved for the President’s assent by the Governor after considerable delay.

Apart from Tamil Nadu, Kerala, Telangana, and Punjab too have sought the intervention of the Supreme Court on the issue.
Kerala in its plea has argued that 3 Bills have been pending with the Governor for more than 2 years, and 3 Bills for more than a year.
Telangana has argued that more than 10 key Bills are pending with the Governor.

A detailed article on the office of the Governor can be read here.

What are the Constitutional Provisions regarding Governor’s assent to Bills?

While Article 163 of the Constitution deals with the powers of the Governor, Article 200 specifically deals with the issue of granting assent to Bills. Both the provisions are read together to determine the power of the Governor to withhold assent to bills.

As per Article 200, when a Bill is passed by the state legislature, the Governor has four options:
(1) grant assent to the bill;
(2) withhold assent to the bill (Absolute Veto);
(3) return the bill for reconsideration, if it is not a Money Bill (Suspensive Veto): If the legislature passes the bill again, with or without amendments, the Governor has to give assent;
(4) reserve the bill for the consideration of the President.

It also stipulates that the Governor shall reserve for the President’s consideration any Bill that, in the Governor’s opinion, would diminish the powers of the High Court.

However, Governors have been accused of misusing their powers and unfairly withholding their assent to Bills, leading to friction with State governments. This is due to the following factors:

1. Discretionary Powers (Article 163): The Constitution makes it clear that if any question arises on whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
2. No provision for a Time Limit: The Constitution has no time limit under which the Governor has to make a decision regarding assent to a Bill. Thus, he/she can exercise a Pocket Veto (A pocket veto is when a President or a Governor essentially prevents a Bill from being passed by taking no action on the Bill (i.e. “keeping it in their pocket”)).
   The proviso in Article 200 says the Governor must return the Bill “as soon as possible” but does not prescribe a specific timeframe. Governors have exploited this ambiguity to sit on Bills indefinitely without returning them to the state legislature.
3. Alleged Partisan Behaviour: Governors have been accused of acting as agents of the Centre and not as an independent Constitutional Office.

What are the issues with Governors withholding assent to Bills?

1. Undermines the Democratic Process: The Governor, who is appointed by the Centre, can delay or reject Bills passed by state assemblies for political reasons. This undermines the democratic process, since the Governors are not elected officials.
2. Undermines Federal Nature of Indian Polity: The Governor’s alleged partisan actions to reject legislations passed by States at the behest of the Centre undermine federalism, which is a basic feature of our constitution (Keshavananda Bharati Case, 1973).
3. Lack of Accountability: When the Governor withholds assent, he/she does not have to provide any reason for the decision.
4. Abuse of Power: The grant of assent is a routine function of the titular head of state, and the exceptional power to withhold it is not meant to be exercised unreasonably.
5. Delay in Decision-Making and Implementation of Policies: This affects the effective functioning of the state government. For instance, due to the delay in approving proposals for the appointment of Tamil Nadu Public Service Commission (TNPSC) members, it currently has several posts vacant.
6. Negative Public Perception: The public often views pending Bills as a sign of inefficiency or even corruption in the state government, which can damage the government’s reputation.

What are the recommendations of various Committees on this issue?

What are the observations of the Supreme Court on this issue?

Rameshwar Prasad Case: SC ruled that Article 361 (which grants Governors complete immunity from court proceedings for any actions taken in the exercise of their powers) does not prevent the Court from examining the validity of the action, including on the grounds of malicious intent. If the grounds for refusal reveal malicious intent, the Governor’s decision to refuse assent could be deemed unconstitutional.

Shamsher Singh Case: The Court held that the expression “in his discretion” is used only in those Articles of the Constitution that confer special responsibilities on the Governor and does not extend to Article 200. It held the view that the principle of Cabinet responsibility is firmly entrenched in our constitutional democracy.

Nabam Rebia & Bamang Felix Case 2016: The SC clarified that a Governor’s discretion under Article 200 is limited to deciding whether a bill should be reserved for the President’s consideration. The Court emphasized that actions by the Governor regarding bill assent can be subject to judicial review.

SC’s Observations in the petition filed by the State of Telangana: While referring to the first proviso to Article 200 of the Constitution, the SC mentioned that Governors should not act slowly on Bills sent to them for assent. The Bench held that the phrase ‘as soon as possible’ in Article 200 has a significant content and must be borne in mind by constitutional authorities.

What are the various solutions to prevent this issue?

1. Ensuring Accountability for the Decision: The Governor must provide a valid reason for such refusal. They cannot act arbitrarily.
2. Maintaining a Neutral Constitutional Stand: The Governor is supposed to be an independent, non-partisan person. It is important that the governor must act judiciously and impartially while exercising his discretion.
3. Framing a Code of Conduct: There is a need to devise a ‘Code of Conduct’ that should define certain ‘norms and principles’ that should guide the Governor’s actions.
4. Careful Use of Discretionary Powers: Governors should use the pocket veto judiciously.
5. Respecting the Federal Nature of Indian Polity: Federalism is a basic feature of our Constitution, and the Governor’s office should not undermine the powers of elected governments at the States.
6. Following International Best Practices: The practice followed in the United Kingdom can be replicated, where the veto could only be exercised on ministerial advice. The refusal of royal assent on controversial grounds is considered unconstitutional.
7. Committee Recommendations: The recommendations of Sarkaria Commission, Punchhi Commission and NCRWC, as mentioned above, must be implemented.
8. Authoritative Supreme court decision- The SC decision must address the grey areas of Art 200 which the Governors misuse for with holding the Bill. It must also prescribe a time limit for which the governor can with hold the Bill.