Power & Prejudice
By Vivek K Agnihotri
On March 14, 2023, the Supreme Court agreed to hear a petition filed by the government of Telangana against the governor alleging inaction regarding several bills sent to her by the state legislature for assent. It was stated that about 10 bills were pending with the governor since September 2022.
It has been argued that according to Article 200 of the Constitution, the governor is required to give his assent to a bill or return it for reconsideration of the legislative assembly or reserve it for the consideration of the president, in which case, it has to be sent to the Union ministry of home affairs. The governor may or may not give assent to the bill, but a decision should be taken this way or that rather than keeping the bills pending for months together. Indefinite delays in this regard lead to a constitutional impasse and obstruct the legislature from carrying out the will of the people.
This is not the first instance where a state government has complained about delay by the governor in giving his assent to a bill passed by the state legislature. Chhattisgarh, Kerala and Tamil Nadu, among others, have had similar grievances in the past. On the other hand, the Supreme Court has repeatedly ruled that the legislative power of governors is extremely limited and that they are bound by the aid and advice of the council of ministers.
From the judgment of a seven-judge Constitution bench in Shamsher Singh and Anr vs State of Punjab to the five-judge Constitution bench in Nabam Rebia vs Deputy Speaker and Ors (2017), the Supreme Court has consistently held that the governor can normally act only on the aid and advice of the council of ministers and cannot exercise any executive powers as an independent authority. In Nabam Rebia (2016), in particular, the Court came to the conclusion that the discretionary power given to the governor was limited to the scope postulated in Article 163(1); its ambit is not open to broader interpretation; there should not be any conflict of interest and its exercise should not be final and immune from judicial review. The Court observed that “…such a nominee cannot have overriding authority over the representatives of the people, who constitute the House or Houses of State Legislature…”
According to Article 200, when a bill is passed by the legislature of a state, it shall be presented to the governor and he shall declare either his assent to the bill or withhold it or say that he reserves the bill for the consideration of the president. In case of withholding assent, the governor is required to return the bill “as soon as possible”, together with a message for its reconsideration. When the bill is presented a second time to the governor, he shall not withhold assent.
The governor may reserve the bill if, in his opinion, it will so derogate from the power of the High Court as to endanger its position. According to Article 201, when a bill is reserved for the consideration of the president, he shall declare either that he assents to the bill or that he withholds it. The president may direct the governor to return the bill to the legislature with a message. When a bill is so returned, the legislature shall reconsider it accordingly “within a period of six months” from the date of receipt of such a message.
As regards the governor acting with the aid and advice of the council of ministers, Article 163 provides for it. However, it further states that the governor may act in his discretion insofar as he is by or under the Constitution required to exercise his functions as such. It further states that any question relating to whether a matter is or not in which the governor is required to act in his discretion, his decision shall be final and the validity of anything done by him shall not be called in question.
The discretionary powers of the governor, even though unquestionable, are not limitless, as mentioned earlier. They are normally exercisable in respect of reservation of bills for the consideration of the president; making recommendation for the imposition of President’s Rule under Article 356 and seeking information from the chief minister with regard to administrative and legislative matters of the state.
In addition, governors also have situational discretion such as appointment of the chief minister when no party has a clear-cut majority; dismissal of the government when it fails to establish its majority in a floor test and dissolution of the state assembly when the council of ministers resigns and there is no alternative. However, these powers have to be exercised carefully, impartially and without prejudice in order to avoid charges of bias or political partisanship.
The grievance of state governments and legislatures is legitimate and needs serious consideration. According to Article 200, the governor can return a bill only once for reconsideration. Thus, constitutionally speaking, ultimately the will of the people has to prevail. Further, Article 201 provides a time limit for state legislatures for consideration of a bill after it is returned by the president, having been earlier reserved by the governor for his consideration. Perhaps the phrase “as soon as possible”, used in the first proviso to Article 200, needs to be qualified to provide a time limit of either some months or subsequent sessions of the legislature, such as “but not later than six months or the next two sessions of the state legislature, whichever is more, unless it is reserved for the consideration of the President”.
As far as the Telangana matter currently before the Supreme Court is concerned, it involves the triumvirate of constitutional authorities, namely the governor, the legislature and the executive. As far as the governor is concerned, the Court would generally be wary of issuing any direction to him. However, it may tread a new path in the context of its disillusionment with governors’ exercise of their discretion over time. It is a piquant situation and requires an out-of-the-box solution, which perhaps has to come from within the triumvirate. The words “as soon as possible” should be persuasive enough for a constitutional authority to make up his mind within a decent interval of time without coaxing or cajoling.
—The writer is former Secretary-General, Rajya Sabha