‘The duty of the Governor is only to ensure that an elected government is functioning within the parameters of the Constitution’. Photo credit: The Hindu
When the Constitution was adopted by the Constituent Assembly, the Founders intentionally left gaps in it so that future Parliaments could amend and modify the Constitution according to the aspirations and will of the people. This apparently led to a constitution with glaring flaws.
One of the silences in the Constitution is in Article 200 which does not set a timeline for the Governor to give assent to the Bills sent by the Legislative Assembly. It has been used by governors of various opposition-ruled states to obscure the mandate of democratically elected governments. examples range from The Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Bill, 2022 (passed by the Tamil Nadu Legislative Assembly) to The Kerala Lokayukta (Amendment) Bill, 2022 (Passed by the Kerala Legislative Assembly). In Tamil Nadu alone, approx. 20 Bills await Governor’s assent, The situation is no different in Telangana and West Bengal. Can governors sit on endless bills?
constitutional scheme
When the draft of Article 200 was discussed in the Constituent Assembly, Prof. Shibban Lal Saxena rightly highlighted how there is no time limit for the Governor to act. In Purushottam Nambudiri v. State of Kerala (1962), a Constitution Bench of the Supreme Court clarified that the Constitution does not lay down any time limit within which the governor must give assent to bills. Interestingly, the question whether governors can sit on bills indefinitely did not arise before the court; The Court has also had no occasion to provide an official ruling on this. However, the Court has maintained that the Governor must respect the will of the Legislature and that the President or the Governor can only act in consonance with his Council of Ministers. When a Governor, appointed by a central government, assents to a law validly passed by the Legislature, he is undoing the will of the Legislature through unconstitutional instruments, thereby directly attacking the federal structure of the Constitution. Delaying the approval of Bills would be an arbitrary act, which in itself is constitutionally abhorrent.
Besides, the issue of the President not acting promptly on the Bills reserved by the Governor for the consideration of the President cannot be left unaddressed. The President is yet to act on the National Eligibility cum Entrance Test (NEET)-Exemption Bill passed by the Tamil Nadu Assembly after it was sent to the President in May 2022. There is no time limit for the President under Article 201. To decide on the outcome of the Bill, of the Constitution. Even as there is no time limit for the President to give assent, a six-month time limit applies for the state legislature to reconsider the bill if the President decides to send it back to the House.
call for reforms
The Justice BP Jeevan Reddy-led committee, in a consultation paper, ‘Institution of the Governor under the Constitution’, has said that if the governor withholds consent to a bill for an indefinite period, “such a move brings down the honor of a governor”. Will not be friendly with.” rather than the rules of the constitutional game….”. The ‘National Commission to Review the Working of the Constitution’, set up by the AB Vajpayee government in 2000, recommended that “there should be a time-frame – a period of six months – within which The Governor must decide whether to assent to or reserve a bill for the consideration of the President. It is also important to understand the real purpose behind Article 200 which requires the Governor to give assent to the Bills. It was realized that an independent Governor would be required to act as a check and balance, to prevent state enacted laws from running counter to central laws. Some State Governments expressed an opinion before the Sarkaria Commission that “the Governor would act as a safety-valve against hastily made laws and his operation would enable the State Government and the Legislature to take a second look at it”.
The Sarkaria Commission went to the extent of suggesting a cure for the incurable disease affecting the federal ecosystem of the country. It was suggested that delay on the part of the Governor in giving assent could be avoided by streamlining the existing procedures; By prior consultation with the Governor at the drafting stage of the Bill itself and by fixing a time limit for its disposal.
delay defeats rationality
Within the scope of administrative law, undue delay in granting administrative approval would be a violation of the rule of law. Therefore, it implies that the Governor has to give assent or decline it within a ‘reasonable time’. ‘Reasonable time’ is that which is necessary in the circumstances to conveniently perform the requirement of the contract or duty in a particular case. In Keesham Meghchandra Singh v. Hon’ble Speaker, Manipur Legislative Assembly (2020), a case on anti-defection law, the Supreme Court held that the Speaker must act on disqualification petitions against defecting legislators within a ‘reasonable time’. The same judgment clarified that the reasonable time in case of disqualification petitions is three months.
The concept that the Queen rules, but the Ministers rule, is the basis of the Westminster system. The duty of the Governor is only to ensure that an elected government is functioning within the parameters of the Constitution. This does not mean that the governor can sit on bills indefinitely, only that there is no time limit set for the governor to decide on bills. The Constitution must be read contextually to provide that the Governor must act on the Bills within a reasonable time, say three months. Constitutional silence must not give way to unconstitutional inaction, leaving room for anarchy in the rule of law. As succinctly put by Justice VR Krishna Iyer in Shamsher Singh & Ors. v. State of Punjab, “Perhaps, our Founding Fathers were not political prophets who could predict glaring abuses or protracted development”.
Mukund P. Unni is an advocate at the Supreme Court of India