Bill’s approval, delay and governor’s options

The state of Tamil Nadu has been a witness Conflict between the elected government and the governor of the state on the question of accepting National Eligibility cum Entrance Test (NEET) Bill (linked to an All India Pre-Medical Entrance Test) passed by the State Legislature. Approving a bill passed by the legislature is a common constitutional act performed by the governor. But recently, even such ordinary acts have become a source of conflict between state governments and governors. The conduct of governors in some states follows a certain pattern which causes great discomfort to the elected governments as well as those who believe in the constitutional system.

on the advice of ministers

There is a need to clearly understand the position of the Governor in the Constitutional set-up in India to understand the importance of functions as well as the reactions of the Governors in the politico-administrative contexts that have emerged from time to time in the States. The Governor is an appointee of the President, which means the Central Government. Although Article 154(1) of the Constitution vests the executive power of the State in the Governor, he is required to exercise that power according to the Constitution. In other words, the Governor can act only on the aid and advice of the Council of Ministers. Although there is not much deviation from the language used in the Government of India Act 1935 in terms of the powers of the Governors of the British era, it is an established constitutional position that the Governor is only a constitutional head and the executive power is exercised by the State Council of Ministers. in Shamsher Singh Vs State of Punjab (1974), the Supreme Court had explicitly affirmed this position in the following words: “We declare this branch of law of our Constitution that the President and the Governor, the guardian of all officers and other powers under various Articles, By virtue of these provisions, exercise your formal constitutional powers only on the advice of your ministers except in certain well-known exceptional circumstances.”

Dr. Ambedkar explained the position of the Governor in the Constituent Assembly as follows: “Under the Constitution the Governor has no function which he himself can discharge: no function.” The Sarkaria Commission in its report reiterates this position, “It is a well recognized principle that as long as the Council of Ministers enjoys [the] The Assembly’s confidence in its advice in these matters, unless expressly unconstitutional, should be considered binding on the Governor”. In 2016, a five-judge Constitution Bench of the Supreme Court (Nabam Rebia Case) ruled our constitutional framework I reaffirmed the above position on the powers of the Governors.

routes available

It may be said here that this analysis of the powers of the Governor is intended to enable the readers to have a view on the issue of the Governor of Tamil Nadu not taking a decision on the request for assent to the NEET Bill passed by the Assembly. more than two months. What exactly are the options of the Governor in the matter of assent to a bill passed by the Legislative Assembly?

Article 200 of the Constitution provides for four alternative courses of action for the Governor when a bill, after it has been passed by the legislature, is presented to him for his assent. The assent of the Governor or the President is necessary for a bill to become a law. The Governor can give his assent directly or can withhold his assent. He may also reserve it for the consideration of the President, in which case it is assented to or withheld by the President. The fourth option is to return the bill to the legislature with a request to reconsider the bill or any particular provision of the bill. The governor can also suggest any new amendments to the bill. When such a message is received from the Governor, the legislature needs to expeditiously reconsider its recommendations. However, if the legislature re-passes the bill without accepting any of the amendments suggested by the governor, it is constitutionally bound to assent to the bill.

The Governor of Tamil Nadu returned the NEET Bill to the Assembly for reconsideration of the Bill. Accordingly, the Assembly held a special session in the first week of February and re-passed it and submitted it to the Governor for his assent. He has not yet given his assent to the bill.

a wrong view

Meanwhile, some sources in the Raj Bhavan have reportedly said that the Constitution has not fixed any time frame within which action should be taken. So this is the crux of the issue. What is said by these sources is that since the Constitution has not prescribed any time limit, the Governor can postpone a decision indefinitely. Needless to say, this is a very wrong approach.

While it is true that Article 200 does not prescribe any time limit for the Governor to act under this Article, it is mandatory on the part of the Governor to exercise one of the options contained therein. A constitutional authority cannot bypass a provision of the constitution by taking advantage of a lapse. The option mentioned in Article 200 is to be exercised by the Governor without delay. One needs to understand the context of Article 200 to be able to make the right decisions. After the bill is passed by the legislature, it is immediately sent to the governor. Although Article 200 does not specify by when the next step the governor should take, it clearly and clearly lays out the options for him to exercise. It is clear that if the Governor does not exercise any of these options, he will not be acting in accordance with the Constitution as non-action is not an option enshrined in Article 200.

But sitting on a bill after it is re-passed by the Assembly and sent to it is permissible under the Constitution. Article 200 (Provided) clearly states that when the Legislative Assembly reconsiders and introduces the Bill on the recommendations of the Governor, it shall not withhold assent. It could never have been the intention of the framers of the constitution that the governor can sit on a bill passed by the legislature as long as he wants and take advantage of the absence of a specific time limit.

In fact, the words used in Article 200 “… shall be presented to the Governor and shall be declared by the Governor….” Indicates that the Constitution requires the Governor to act on the presentation of the Bill without delay. The reason is obvious. The legislature passes a bill because there is an urgency about it. But if the governor does not act, the will of the legislature is disappointed. It is not a constitutional policy to thwart the legislative will expressed through a bill. Therefore, in view of the mandatory provision in the proviso to Article 200, it is clear that the Constitution does not permit the Governor to sit on a Bill when the Assembly re-introduces it after reconsideration.

an undemocratic option

Approval of a bill passed by the legislature is a part of the legislative process and not an executive power. But the Constitution has made it mandatory for the Governor to exercise any of these options without delay by providing for certain options. Withholding consent, although an option, is not usually exercised by governors as it would be an extremely unpopular move. Further, withholding assent to a bill by the Governor appointed by the President nullifies the entire legislative exercise by an elected legislature enjoying the support of the people.

In the opinion of this author, this alternative is undemocratic and is essentially against federalism. In the United Kingdom it is unconstitutional for the monarch to refuse assent to a bill passed by Parliament. Similarly, in Australia, the crown’s refusal to assent to a bill is considered contrary to the federal system.

In our constitutional system, the Governor or the President is not personally responsible for his actions. The elected government is responsible. Under Article 361, the President or the Governor is not answerable to any court for anything done in the exercise and performance of his powers and duties. But when a Governor does not take any decision on a Bill for his assent, he is not acting in the exercise and performance of the duties imposed on it.

PDT Acharya is former Secretary General of Lok Sabha