Abstract
The role of the Governor should be seen through the lens of the framers of the Constitution and the Constitution itself. The Governor is the Constitutional Head of the State under the Indian Constitution. Article 153 to 162 specifically talks about the role and powers of the Governor. The core role of the Governor is to exercise his discretionary power and uphold the sanctity of the Constitution and function as the Constitutional Head of the State.
Introduction
India is known for its unity in diversity and the Constitution of India reflects harmony among diverse people and culture while emphasizing State autonomy. The relation between the Governor and State Government have been subjected to Constitutional debate in the country. However, after the independence the Union Government seen as restricting the State autonomy through the office of Governor. Let’s discuss the important role of the Governor in legislative process at the state level, specifically concerning the Article 200 of the Indian Constitution which governs the “assent to bills” by studying and analyzing the recent judgement by the Supreme Court in the case of “State of Tamil Nadu vs The Governor of Tamil Nadu and another”
Key Words
Governor, State autonomy, Discretionary powers, Article 200, Federalism, Assent to bills, Pocket veto, Sarkaria Commission, Judicial Review, Complete Justice, Article 142
Historical Evolution of the Governor’s office
Governor have held this office since colonial period. In British India, the Governor acted as Monarch’s envoy appointed to oversee the operations of the East India Company. The Government of India Act, 1935 vested Governor with special reserved powers, allowing them to use such powers discretionally. After the independence of the country various concerns have been raised about these powers and effect of using such powers.
Constitutional Provisions
Part VI of the Indian Constitution (Article 153 – 162) specifically deals with the powers and functions of the Governor. The Apex Court, in STATE OF PUNJAB v. PRINCIPAL SECRETARY TO THE GOVERNOR OF PUNJAB AND ANOTHER [2023] 15 S.C.R. 777, has affirmed that in parliamentary democracy the real power resides within the elected representatives and the Governor who is appointed by the President is symbolic head of the State. Generally, the Governor acts on the advice of the Council of Ministers, except where Constitution explicitly grants discretionary powers. The second proviso of the Article 200, is considered one of the instances where the Governor has the discretion to reserve a bill for President’s consideration, even against ministerial advice.
Assent to Bills under Article 200
When a bill is passed by the State Legislature it is forwarded to Governor who have three options: Give assent, withhold assent, or reserve the bill for President’s consideration.
The first proviso of the Article 200 says that if the Governor withholds a non-Money Bill, he must send it to back to State Legislature for consideration as soon as possible with a message suggesting reconsideration or amendments. And when the State Legislature passes the bill again with or without amendments, now, the Governor shall not withhold assent.
The second proviso of this Article states that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
And when a bill is reserved, Article 201 applies. The President may give assent, withhold assent, or direct the Governor to return the bill for reconsideration by State Legislature. And if the bill is passed again within 6 months it is presented before the President for consideration, and he may not necessarily assent.
Sarkaria Commission
The Sarkaria Commission setup by the Govt of India in June 1983 examined and reviewed the existing arrangements between the Centre and the State and recommended various improvements within the constitutional framework to improve and enhance cooperative federalism. The commission recommended streamlining the process and noted the significance of clear timelines for exercising the powers under Article 200 and 201 respectively. The commission recommended that a bill reserved for the President must be accompanied by a self-contained reference detailing the material facts, points for consideration, and grounds for reference.
Tension between Governor and State Governments
Tensions between the Governor and opposition led State Governments (like West Bengal, Kerala, Tamil Nadu, Punjab, and Jharkhand) are becoming clearly visible. Instances where Governor appear to hold more power than the elected governments raise concerns about the erosion of democratic values. The continuous criticism and allegations of interference by the state governments against the Governor exemplifies these tensions. The Tamil Nadu Governor’s alleged delay in assenting bills prompted the State Government to approach the Supreme Court.
Supreme Court Judgement in State of Tamil Nadu vs. Governor of Tamil Nadu
The Apex Court’s judgement in this case emphasized the supremacy of the elected representatives in parliamentary democracies. The Court clarified that the Governor is the symbolic head of the State and generally acts on the aid and advise of the Council of Ministers.
The Supreme Court prescribed a timeline for the Governor to act upon the bills passed by the state legislature and failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts:
In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such action forthwith, subject to a maximum period of one-month.
In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three-months.
In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months.
In case of presentation of a bill after reconsideration in accordance with the first proviso of Article 200, the Governor must grant assent forthwith, subject to a maximum period of one-month.
The Court stated that the first proviso of the Article 200 is not a separate option by itself, it only comes into play when the Governor decides to withhold the assent to a bill. And when the bill is passed again, the Governor cannot withhold assent or reserve it for the President’s consideration. In essence, the Supreme Court held that there is no pocket veto available to the Governor while he is exercising the powers under Article 200.
The Court affirmed that inaction or arbitrary delays by the Governors or the President in granting assent to bills are subject to judicial review. The Court emphasized that “no constitutional power vested in any authority, howsoever high, is beyond the powers of judicial review of the Constitutional Courts”.
The Supreme Court using its power under the Articles 142 to do complete justice held that the bills which were pending before the Governor of Tamil Nadu are now considered as assented by him which basically means that the bills become the law of the state.
The judgement serves as a reinforcement of democratic norms and highlights the need for Governors to act according to Constitutional principles.
Conclusion
The role of the Governor in India is a complex issue marked by historical evolution and ongoing tensions. Concerns persist about the potential for Governors’ discretionary powers to undermine state autonomy and democratic norms. The Supreme Court’s recent judgment in the Tamil Nadu case provides crucial clarifications regarding the Governor’s powers, particularly concerning the assent to bills under Article 200, and reinforces the supremacy of elected legislatures. Upholding the spirit of the Constitution and clearly defining the constitutional boundaries of the Governor’s office are vital for maintaining a healthy federal structure and protecting democratic principles in India. The Governor’s role should be that of a unifying force and a facilitator of cooperation between the Union and State governments, rather than an agent perceived to be subverting the will of the people expressed through their elected representatives.
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WRITTEN BY ABHINAV VERMA
