Governor’s right to withhold assent: The constitutional question before Supreme Court

What does the Constitution say about the Governor’s role in giving assent to Bills?

While Article 163 of the Constitution deals with the powers of the Governor generally, Article 200 specifically deals with the issue of granting assent to Bills. Both the provisions are read together to determine the contours of the power the Governor holds on this issue.

When a Bill passed by the legislature of a state is presented to the Governor, the Governor has four options: (1) grant assent to the Bill; (2) withhold assent to the Bills; (3) return the Bills for reconsideration; or (4) reserve the Bill for the consideration of the President.

Article 200 reads: “When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.”

However, the Article has a key proviso. It says that the Governor “may, as soon as possible” return Bills other than money Bills, with a message requesting that the House reconsider it in parts or in whole. However, once the Legislative House reconsiders the Bill and sends it to the Governor once again, the Governor “shall not withhold assent therefrom”.

The tug-of-war between the government and the Governor in the Opposition-ruled states essentially lies in the wordplay in the proviso. The proviso says the Governor must return the Bill “as soon as possible” but does not prescribe a specific timeframe. Raj Bhavans have exploited this ambiguity to sit on Bills indefinitely without returning them to the state legislature.

But can a Governor in practice actually sit on a Bill forever?

An indefinite timeline in deciding on Bills can in effect amount to paralysing the elected government. At the same time, giving assent to Bills is one of the few areas in which the Governor can exercise his discretion. But again, this discretion cannot be used arbitrarily or based on a personal preference, but only in Constitutional terms with cogent reasons.

Additionally, Article 200 uses the word “shall” which indicates that the framers of the Constitution intended a mandatory tone for the Governor on this aspect.

The Supreme Court in its landmark 2016 ruling in the Arunachal Pradesh Assembly case (Nabam Rebia and Bamang Felix vs Deputy Speaker) discussed this aspect briefly.

“Of course, the Governor cannot withhold assent to a Bill indefinitely but must return it to the Assembly with a message and this could include his recommendation for amendments to the Bill. This is the subject matter of Rule 102 and Rule 103 of the Rules which read as follows: “102 (1) When a Bill passed by the Assembly is returned to the Assembly by the Governor with a message requesting that the Assembly do reconsider the Bill or any specified provisions thereof or any such amendments as are recommended in his message, the Speaker shall read the message of the Governor in the Assembly if in session, or if the Assembly is not in session, direct that it may be circulated for the information of the members,” the court had said.

What is the argument of the states in the Supreme Court?

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 three Bills have been pending with Governor Arif Mohammad Khan for more than two years, and three Bills for more than a year.

A PIL on this issue in the Kerala High Court had made the state government a respondent, but the HC refused to intervene, prompting the state to move the SC.

Telangana has argued that more than 10 key Bills are pending with Governor Tamilisai Soundararajan and that seven of those Bills were passed by the Assembly and sent for the Governor’s assent in September 2022.

Tamil Nadu has argued that the Governor by not “signing remission orders, day to day files, appointment orders, approving recruitment orders, granting approval to prosecute Ministers, MLAs involved in corruption including transfer of investigation to CBI by Supreme Court, Bills passed by Tamil Nadu Legislative Assembly” is bringing the entire administration to a halt and “creating adversarial attitude by not cooperating with the State administration”.

What can the Supreme Court do now?

Several aspects dealing with the Governor’s powers — such as the role in recommending President’s Rule, inviting the party with a majority to form the government, or during a trust vote — have been litigated extensively, and there is now settled law on these aspects.

The SC has now been called upon to decide a new aspect — whether it can fix a timeline for Governors to give assent to Bills, which amounts to deciding whether it can prescribe limits to an office exercising constitutional powers.

In the past, the court has reluctantly fixed timelines for the Speaker’s office to decide disqualification cases.

A Governor cannot be made a party before the Supreme Court. Generally, therefore, the court issues notice to the Secretary of the Governor in such disputes.