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Governor cannot refer re-enacted Bills to President: SC

  • Published
    2nd Dec, 2023

The Tamil Nadu government in the Supreme Court has criticised Governor R.N. Ravi for exhibiting “constitutional obstinacy” by referring ten key Bills re-enacted by the State Assembly to the President for consideration.

What’s the issue?

  • Recent instances of Governor who is an unelected Head of state or better called as agent of centre in states is withholding some bills in states like Punjab and Tamil Nadu.
  • This action was opposed and dissented by respective state legislature. The main contention pertains to the Constitutionality of the action.
  • The action also defeats the spirit of the constitution by holding assent indefinitely on a bill/law passed by duly elected State legislature.
  • The action of governor contravenes the popular mandate and values of democracy.

Recent Supreme Court’s Views:

  • A three-judge Bench headed by Chief Justice of India said that the Governor, having withheld his assent to the Bills in the first instance and cannot now refer the Bills, re-passed by the Tamil Nadu legislature, to the President.
  • As mentioned by SC, Article 200 of the Constitution gives the Governor three choices
  • Grant assents to the Bills or withhold assent or reserve them for the consideration of the President.
  • In this case, the Governor withheld assent.
  • Once he has withheld assent, there is no question of him referring them to the President.
  • The CJI has said that the Governor withholds assent, he cannot stultify the Bills.

What is the observation of Supreme Court?

  • It Laid down the law that a Governor, in case he withholds assent, should send back a Bill forwarded to him by a State Legislature “as soon as possible” with a message to reconsider the proposed law.
  • The expression “as soon as possible” conveyed a “constitutional imperative of expedition”.
  • In case, the State Assembly reiterates the Bill “with or without amendments”, the Governor has no choice or discretion, and has to give his assent to it.
  • Message of the Governor does not bind the legislature is evident from the use of the expression ‘if the Bill is passed again …with or without amendments.
  • A Governor who chooses to withhold a Bill without doing anything further would be acting in contravention of the Constitution. Because such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of
  • The verdict is also a significant boost to Tamil Nadu’s case. The Tamil Nadu Assembly had returned 10 crucial Bills to Governor R.N. Ravi without any amendments. The Governor had withheld assent to the Bills in the first instance.

The role of the Governor in legislature

  • Article 200 of the Constitution lays down that when a Bill, passed by a State Legislature, is presented to the Governor for their assent, they have four alternatives:
  • He may give assent to the Bill; may withhold assent to the Bill, that is, reject the Bill in which case the Bill fails to become law; may return the Bill (if it is not a Money Bill) for reconsideration of the State Legislature; or may reserve the Bill for the consideration of the President.
  • As held by the Supreme Court in various cases including the Shamsher Singh case (1974), the Governor does not exercise their discretionary powers while withholding assent or returning a Bill to the State Legislature.
  • They are required to act as per the advice of the Council of Ministers. The situation of ‘withholding assent’ may arise in case of a Private Members’ Bill (any Member of State Legislature other than a Minister) passed by the State Legislature, which the council of ministers do not want to be enacted into a law. In such an instance, they would advise the Governor to ‘withhold assent’.
  • However, this is an unlikely scenario as the council of ministers who enjoys a majority in the Legislative Assembly would not allow the passage of such a Bill.
  • Secondly, if the incumbent government whose Bill has been passed by the legislature falls or resigns before it is assented to by the Governor, the new council may advise the Governor to ‘withhold assent’.
  • The Governor must reserve certain Bills, like those which reduce the powers of the High Court, for the consideration of the President. They may also reserve Bills on concurrent list that are repugnant to a Union law based on ministerial advice.
  • It is only under rare circumstances that the Governor may exercise their discretion, where they feel that the provisions of the Bill will contravene the provisions of the Constitution and therefore, should be reserved for the consideration of the President.
  • It must however be noted that the Constitution does not lay down any time limit within which the Governor is required to make a decision.
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