‘Must act with due deference to conventions of parliamentary democracy’: Supreme Court sets aside TN Governor’s reservation of 10 Bills

It also laid down a timeline for Governors to decide on Bills presented to them.

Exercising powers under Article 142 of the Constitution, the bench also declared the 10 Bills as having received assent given “the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent and in view of the scant respect shown by the Governor” to the court’s decision in similar matters earlier.

Soon after the judgement was pronounced, Attorney General R Venkataramani said, “On Article 142, there is going to be some issue on that. Permit me to come back to that.” But Justice Pardiwala said “the judgement has been pronounced”.

Explaining its decision, the bench said that under Article 200 of the Constitution, which deals with the power of Governors to deal with Bills presented to them, there are only three courses open: grant assent; withhold assent; or, reserve the Bills for the President.

It said the Bill can be reserved for the President only at the first instance. It said there is no concept of “absolute veto” or “pocket veto” under the Constitutional scheme.

The bench said, “We are in no way undermining the office of the government. All we say is that the Governor must act with due deference to the settled conventions of Parliamentary democracy, respecting the will of the people being expressed through the legislature as well as the elected government responsible to the people. He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political experience but by the sanctity of the Constitutional oath he undertakes.”

Delineating the role of the Governor, the bench said, “In times of conflict, he must be the harbinger of consensus and resolve issues, lubricating the functioning of the state machinery by his sagacity and wisdom, and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be held keeping in mind the dignity of the high Constitutional office that he occupies.”

“The Governor, before he assumes office, undertakes an oath to discharge his functions to the best of his ability in order to preserve, protect and defend the Constitution and the rule of law and to devote himself to the service and well-being of the people of the state. Therefore, it is imperative that all his actions be guided in true alliance to his oath and that he faithfully executes his functions that he is invested with, by and under the Constitution,” it said.

“The Governor, as the Constitutional head of the state, is reposed with the responsibility to accord primacy to the will and welfare of the people of the state and earnestly work in harmony with the state machinery as his oath not only makes his mandate anything but clear, rather also demands it of the Governor owing to the intimate and delicate nature of the functions that he performs and the potency of the ramifications that could ensue or be unleashed upon the state,” the bench said.

“Due to this, the Governor must be conscious to not create roadblocks or chokehold the state legislature in order to thwart and break the will of the people for political edge. The members of the state legislature, having been elected by the people of the state as an outcome of the democratic expression, are better attuned to ensure the well-being of the people of the state. Hence, any action contrary to the express choice of the people, in other words, the state legislature, would be a renege of the Constitutional oath. Before we part with the matter, we find it apposite to observe that Constitutional authorities occupying high office must be guided by the values of the Constitution,” it said.

Laying down the timeline for Governors to decide on Bills, the judges referred to Article 200 which deals with the power of the head of the state to deal with Bills presented by the Assembly.

“As a general rule, it is not open for the Governor to reserve a Bill for the consideration of the President once it is presented before him in the second round after having been returned to the House previously as per the first provision… The only exception to this general rule is when the Bill presented in the second round is different from the one presented to the Governor in the first instance,” the bench said.

“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,” it said.

The Supreme Court said that the general rule is that the Governor, in exercise of his functions under Article 200, has to abide by the aid and advice tendered by the Council of Ministers. The only exceptions to this rule can be traced to the second proviso to Article 200 and Article 163 (1), respectively.

“Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers,” it said and underlined that “any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review”.

The bench had reserved judgment on February 10 on the writ petitions filed by the Tamil Nadu government against Governor Ravi withholding assent for the Bills, the oldest of them pending since January 2020.

Following the ruling Tuesday, the Kerala government, which has also challenged the decision of the state Governor delaying assent on some Bills, urged the Chief Justice of India to transfer the matter to the court of Justice Pardiwala, saying this judgement fully covered its case as well.

Appearing for the Kerala government, Senior Advocate K K Venugopal said “for 23 months, several Bills have been kept pending… It’s very unfortunate.”

Attorney General Venkataramani, however, said, “The Governor cannot be compelled to file an affidavit. We will study the judgement. Keep it after some time.”

Listing it for hearing in the week commencing May 13, CJI Sanjiv Khanna said he was not saying anything on Venugopal’s request now. “Let it (the judgment) be examined. If it’s covered by the judgement, it will be covered by the judgement,” he said.