Introduction
The Supreme Court judgment in State of Tamil Nadu v. The Governor of Tamil Nadu has again raised to the centre of debates a long-standing and highly contentious constitutional issue, the scope of the Governor's discretion and the limits of judicial intervention in affairs of the executive. The case was initiated on the basis of numerous petitions that complained of prolonged inaction by the Tamil Nadu Governor on numerous issues, such as withholdings of assent to ten Bills passed by the State Legislature, pendency of proposals regarding the premature release of prisoners, and failure to make appointments to the Tamil Nadu Public Service Commission. While the judgement covered all these points, this article has limited itself to one crucial matter — the Governor's refusal to give assent to Bills and if, by enacting timelines for constitutional authorities, the Supreme Court has overstepped its judicial role.
The delay by the Governor, undoubtedly, cannot be condoned. The judicial imposition of fixed timeframes for giving assent, though, is both constitutionally not permissible and institutionally undesirable. The use of the term "as soon as possible" in Article 200 was made deliberately by the drafters of the Constitution to enable context-dependent discretion and not a mechanical or rigid timeframe. The Union of India, in its arguments, brought to notice the fact that during the last half century, almost ninety percent of Bills were approved within a month by the Governor, and that a delay occurred in other cases usually due to a request on behalf of the State Executive for a further consultation or because legislatures had acted hastily to push politically charged decisions through. Imposing rigid timelines, thus, is against the constitutional order that contemplates cooperation and consultation between the Governor and the Council of Ministers. Article 200, by its very nature, places in the Governor a limited but reasonable sphere of discretion, and the Court's effort to restrict that discretion constitutes a case of blatant judicial encroachment.
In recent years, disputes between Governors and Chief Ministers have increasingly acquired a political character, reflecting the growing tension between State and Union authorities. Such issues, being inherently political, fall squarely within the executive and legislative domains and lie beyond the judicial sphere. However, in the case of the Tamil Nadu Governor, the invocation by the Supreme Court of Article 142 to give "deemed assent" actually trespassed upon the spheres of both the legislative and the executive, disturbing the fragile equilibrium upon which rests the doctrine of separation of powers. The preservation of this doctrine needs to be the judiciary's prime constitutional obligation because political governance is outside the rightful ambit of judicial interference.
Issues before the Court
Article 200 of the Constitution
Assent to Bills
“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.
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.
Provided further 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.”
Legislative History on Art 200
The Constituent Assembly, while debating on the inclusion of Article 111 into the Constitution of India on May 20, 1949, had discussed various amendments to the draft provision. Among other amendments, Dr. B.R. Ambedkar had moved Amendment No. 1685. He is quoted as saying:
‘Sir, I move:
“That in the proviso to article 91, for the words ‘not later than six weeks’ the words ‘as soon as possible’ be substituted.”’
Dr. P.S. Deshmukh is, about Amendment No. 1680, quoted as:
“So far as the first amendment of Dr Ambedkar is concerned, I do not know if it is very necessary that the amendment should be accepted. The question for consideration is whether we should merely say that the President should give his assent as soon as possible or whether we should state any period within which he should do it. I think if the words ‘not later than six weeks’ are to be left as they are, then it is the duty of the President to indicate his decision as early as possible and in no case later than six weeks. So I am not fully convinced of the propriety of changing the wording as proposed.”
Shri H.V. Kamath is, in relation to Amendment No. 1680, quoted as:
“As regards the amendment moved by my learned Friend Dr. Ambedkar, I venture to state that he has not acted wisely in bringing this amendment before this House, and I am reminded of the saying that even Homer nods. And I think Dr. Ambedkar has tripped on this occasion.”
He is further quoted saying:
“In human nature, if you will permit me to say so, unless there is a compelling sense of duty or service, there is always a tendency to procrastinate.”
“This phrase is vague, purposeless and meaningless and it should not find a place in the Constitution, especially in an article of this nature where we specify that the President must do a thing within a certain period of time.”
“And so I request Dr. Ambedkar to withdraw his amendment. It serves no purpose whatsoever, and I request that the article which is quite clear as it stands may be passed.”
It should be noted that the amendment introduced by Dr Ambedkar was put to vote before the Constituent Assembly and, despite the opposition, adopted. Consequently, the draft Article 91, was adopted, as amended, by the Constituent Assembly to be a part of the Constitution
In State of Punjab v. Governor of Punjab, it was held on p. 396,
“The first proviso opens with the expression “the Governor may” in contrast to the second proviso which begins with the expression “the Governor shall not assent”. The “may” in the first proviso is because the first proviso follows the substantive part which contains three options for the Governor. The first proviso does not qualify the first option (where the Governor assents to the Bill) nor the third option reserving the Bill for consideration of the President. The first proviso attaches to the second option (withholding of assent) and hence begins with an enabling expression, “may”.” (emphasis added)
The Court further, on the same page, held
“21. The second proviso impacts upon the option which is provided by the substantive part of Article 200 to the Governor to reserve a Bill for the consideration of the President by making it mandatory in the situation envisaged there. The option of reserving a Bill for the consideration of the President is turned into a mandate where the Governor has no option but to reserve it for the consideration of the President. The second proviso is, therefore, in the nature of an exception to the option which is granted to the Governor by the substantive part of Article 200 to reserve any Bill for the consideration of the President.”
If the Court’s reasoning, in considering the second proviso as an exception to the third option made available to the Governor in the substantive part of Article 200, is extended to the first proviso of Article 200, it may imply that the Governor has some discretion in the exercise of his power to return a non-Money Bill to the legislature for reconsideration.
If the phrase “shall not assent”, according to the SC’s interpretation, imposes a mandatory duty on the Governor to reserve a bill for the President’s consideration in the exercise of his powers under Article 200, as stated in the second proviso, the phrase “the Governor may” in the first proviso to Article 200 should be interpreted as giving the Governor the discretion to decide as to when can the bill be resent to the legislature for reconsideration at the earliest. Had the constitutional framers intended to impose a mandatory duty on the Governor to resend a bill to the legislature at the earliest, they would have used the phrase “the Governor shall”, as was the intention and done with the second proviso to the article.
Additionally, while debating on the inclusion of Article 200, the Constituent Assembly removed the phrase “not later than six weeks” with the words “as soon as possible”, indicating that they had no intention of forcing the Governor to act within a particular time frame but instead allowed for the exercise of the Governor’s discretion.
The Supreme Court, in Purushothaman Nambudiri v. State of Kerala , held in paragraph 15:
“ If we look at the relevant provisions of Articles 200 and 201 from this point of view it would be significant that neither Article provides for a time limit within which the Governor or the President should come to a decision on the Bill referred to him for his assent. Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide: Article 197(1)(b) and (2)(b)). In fact, the proviso to Article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message.”
The above-mentioned judgement, when read with the Constituent Assembly debates, leaves no doubt that had the constitution-framers desired a time frame within which the Governor was required to return a bill to the legislature for reconsideration or was required to give his assent to a bill, such time frame would have been incorporated into the Constitution, as has been done in various parts of the Constitution where such a time frame was desired. The very fact that the phrase “not later than six weeks” was substituted by “as soon as possible”, in fact, points to the contrary, i.e., the constitution framers DID NOT want to impose any time limit upon a Governor.
Therefore, as held in Purushothaman (supra), the failure to make any provision prescribing the time within which the Governor or the President should reach a decision suggests that the Constitution-makers knew that a Bill pending the assent of the Governor or the President would not stand the risk of lapse on the dissolution of the Assembly. That is why no time limit was prescribed by Articles 200 and 201. This also indicates that once a bill has been passed by the legislature and has been sent to the Governor for his assent, it is his discretion as to when to exercise his constitutional powers.
Constituent Assembly Proceedings (Draft Article 175)
The Constituent Assembly discussed draft Article 175 on July 30, 1949 and August 01, 1949. The original proviso to the article was “Provided that where there is only one House of the Legislature and the Bill has been passed by that House, the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will reconsider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House shall reconsider it accordingly and if the Bill is passed again by the House with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”
Dr. Ambedkar had, on July 30, 1949, moved an amendment. He is quoted as
“Mr. President, Sir, I beg to move that: “That for the proviso to article 175 the following proviso be substituted :—
‘Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom’.” Sir, this is in substitution of the old proviso.”
He is further quoted as
“It was felt then that in a responsible government there can be no room for the Governor acting on discretion. Therefore the new proviso deletes the word ‘In his discretion’. Similarly, it is felt that this right to return the Bill should not be extended to a money Bill and consequently the words ‘if it is not a money Bill’ are introduced. It is also felt that this right of a Governor to return the Bill to the Legislature need not necessarily be confined to cases where the Legislature of the province is unicameral. It is a salutary provision and may be made use of in all cases even where the Legislature of a province is bicameral. It is to make provision for these three changes that the new proviso is sought to be substituted for the old one and I hope the House will accept it.” (emphasis added)
The Assembly was then adjourned till 0900 hrs on Monday, August 01, 1949.
When the Assembly re-convened at 0900 hrs on Monday, August 01, 1949, the draft Article 172 was first taken for consideration by the Assembly and after much deliberation on various amendments, the article was adopted it in its present form
Thereafter, the Assembly continued its deliberations on draft Article 175. Prof. Shibban Lal Saksena did register his opposition to the amendment moved by Dr. Ambedkar. He is quoted as
“Now, power is given to the Governor to return the Bill with a message. No time limit is given; how long he will take to return the Bill is not mentioned. So, if this proviso is accepted, what it will mean is this: that any contentious legislation will again go to Assembly and then to Council and it may take another six months in all that and so the legislation may be held back, if the Governor is not inclined to help. I think that the original proviso is much better. In those provinces where there is only one House, where the safeguard of a Second Chamber is not there, we may give the Governor the power to return a Bill, but where there is already a Council, where the Bill has been again discussed threadbare when every aspect of it has been examined thoroughly, the Governor should not have the power to send back a Bill. I think this is very reactionary and no quick legislation will be possible under this proviso. I therefore think that the original proviso to article 175 is much better than the one which has now been moved.”
His opposition was addressed by Shri T.T. Krishnamachari in his reply. He is quoted as
“If he construes that this amendment is worse than the proviso in the draft article and that it makes for further dilatoriness in the proceedings of the legislatures in the provinces or the States as the case may be, I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The Governor is no longer vested with any discretion. If it happens that as per amendment No. 17 the Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers.”
He is further quoted as: “If my honourable Friend understands that the Governor cannot act on his own, he can only act on the advice of the Ministry, then the whole picture will fall clearly in its proper place before him. ”
“It is a saving clause and vests power in the hands of the Ministry to remedy a hasty action that they might have undertaken or enable them to take an action which they feel they ought to in order to meet popular opinion which is reflected outside the House in some form or another and for this purpose only this new proviso has been put in. It does not abridge the power of the responsible Ministry in any way and therefore, it does not detract from the power of the Lower House to which the Ministry is undoubtedly responsible; it does not confer any more power on the Governor. On the other hand it curtails the power of the Governor for the position envisaged in the original proviso which it seeks to supplant” The amendment moved by Dr. Ambedkar was then put to vote before the Constituent Assembly and was adopted. Thereafter, the draft Article 175 was, through a motion adopted by the Constituent Assembly, added to the Constitution.
The phrase ‘in his discretion’ can be interpreted as the discretion of the Governor as to whether a bill should be returned to the legislature or not, which was taken away after the amendment introduced by Dr Ambedkar was adopted by the Constituent Assembly. Therefore, the Governor’s decision as to whether a bill should be returned to the legislature or not should be per the advice tendered to him by the Council of Ministers. However, since no time limit has been prescribed, the discretion as to whether to seek the advice of the Council of Ministers or to keep it pending still lies with the Governor. In other words, while the Governor cannot exercise the power of veto in defiance of the advice of the Council of Ministers, the discretion of when to seek the advice of the Council of Ministers as to exercise of the Governor’s powers and when to give assent to a bill still lies squarely with the Governor. But, once he chooses to take the advice of the Council of Ministers, he has no choice but to act per the advice tendered.
BK Pavithra vs Union of India (DY Chandrachud & UU Lalit JJ)
State of Punjab vs Governor of Punjab ( DY Chandrachud CJI, JB Pardiwala J & Manoj Misra J)
Both the B.K. Pavithra and State of Punjab judgments of the Supreme Court underscore the significance of the Governor’s role in granting assent to Bills, emphasizing that while the Governor may exercise discretion, such power cannot be used to withhold a Bill indefinitely. In B.K. Pavithra (supra), the Court affirmed that the Governor does possess certain discretionary powers under the Constitution.
Tamil Nadu judgement rewrote Constitution, encroached on legislative domain
Timelines given by the Court
In its ruling, the Supreme Court went so far as to grant “deemed assent” to ten Bills passed by the Tamil Nadu Legislative Assembly, effectively exercising powers that ordinarily rest with the Governor. By invoking its inherent authority, the Court stepped into what is constitutionally the domain of the Executive. Articles 200 and 201, which govern the process of gubernatorial and presidential assent, form part of the basic structure of the Constitution, serving as safeguards against legislative excess. By prescribing timelines and curtailing the Governor’s discretion, the Tamil Nadu judgment, critics argue, has in effect rewritten these constitutional provisions. Furthermore, it has been pointed out that the Division Bench’s intervention contravened Article 145(3), which mandates that any matter involving substantial questions of constitutional interpretation must be heard by a Constitution Bench. Although the Governor is generally bound to act on the aid and advice of the Council of Ministers, past commissions and rulings including the Sarkaria Commission’s “four-option theory” have recognised that the Governor retains a limited discretionary power, which may include withholding assent in exceptional circumstances.
Sarkaria Commission on Article 200 & 201
The matters in which the Governor, according to the Commission, is expected to use his discretion are:-
Article 200 does not fix any time limit for granting the assent or for declaring that he is withholding his assent or for declaring that he is reserving it for the assent of the President. It has been held in Purshothaman v. State of Kerala (supra) that there is no time limit for granting the assent. The Constitution does not furnish any guidance to the Governor in which matters he should accord his assent and in which matters he should withhold assent.
Except in matters governed by the second proviso to Article 200, that Article does not also lay down any guidelines in which matters should the Governor reserve the Bill for the consideration of the President. It has been held by the Supreme Court in Hoechst Pharmaceuticals v. State of Bihar that the Governor’s power to reserve for the consideration of the President cannot be questioned in court. The first proviso requires the Governor to return the Bill for reconsideration “as soon as possible after the presentation to him of the Bill for assent”. If this provision is taken as a guide, as an indicator, the element of urgency in it may govern not only the case of return of Bill, but also grant or withholding of assent as well as to reservation of the Bill for the consideration of the President. But so far no court has taken this view; it is only a possible interpretation. The fact remains that there are no express words in the Constitution to support such a view. In such a case, the Court here has taken the role of the legislature and has touched upon in taking a view that is not permissible. It is for the Parliament to interpret the term “as soon as possible” and not for the Court to look into the term and issue guidelines.
Analysis on Article 200
"In Valluri Basavaiah Chaudhary, the Court held that in the case of a money bill, the Governor retained the discretion to withhold assent to a bill presented before him. In Rameshwar Prasad, the Supreme Court said that the Governor discharged the dual responsibility, being accountable to both the Union and to the State in the exercise of his Constitutional functions. Nabam Rebia recognised that the Governor is vested with judiciary exercise of powers under Article 200 of the Constitution. BK Pavitra (Supra) held that the Constitution confers a discretion upon the Governor with respect to the reservation of bills by the consideration of the President. It is observed that discretion is vested in the Governor to adopt one of the course of action set out in the substantive part of Article 200. The Court further affirmed that the Governor has entered the authority to reserve a bill presented for his assent for the consideration of the President and such reservation may violently be exercised, even contrary to the aid and advice rendered by the Council of Ministers." In BK Pavithra (supra) , the Court aims at a balance in interpreting Article 200 of the Constitution.
Article 200 entrusts the Governor with discretion when he receives a bill. The Governor is Constitutionally mandated to adopt from a quartet of options or a synthesis of options, contained therein. 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, or he may return the Bill. Article 200 cannot be read to bind the Governor to the aid and advice of the Council of Ministers. If so, the independent authority, who is the Governor, may become otiose. The Constitution provides a discretion to the Governor, and we ought to use these words for some reason or the other. So, provides a discretion to the Governor to follow one of the more courses of action initiated in part of Article 200. The ambit of power entrusts that the Governor under Article 200 to reserve a bill for the consideration, or the President is not restricted to, (1) eventuality of Article 254(2) or, (2) bills falling within the second proviso to Article 200. The first proviso, therefore, deals with the situation when the Governor is bound to give his assent. The second proviso makes reservation compulsory by the Bill, would it become law, derogates from the power of the High Court, but reservation is important note, should be made without the Governor himself giving assent to the Bill. The Article does not contemplate the Governor giving his assent. In Kameshwar Singh, when the bill becomes a full-fledged law, reserving it for the consideration of the President, indeed the Governor is prohibited from giving his assent where such a reservation by him is made compulsory. The Constitution does seem to contemplate only Bills passed by the House or House of Legislature, being reserved for the consideration of the President, are not laws to which the Governor has already given his assent".
The President has invoked Art 143 (advisory Jurisdiction) and now referred 14 questions to the Supreme Court for its consideration and examination.
The Supreme Court has assembled a five-judge Constitution Bench headed by Chief Justice B.R. Gavai along with Justices Surya Kant, Vikram Nath, P.S. Narasimha, and Atul Chandurkar. The judgment of the Tamil Nadu Governor's Case is generally accepted to have gone beyond the judiciary's constitutional role by giving binding orders and developing the doctrine of "deemed assent." The imposition of time limits on the Governor or the President can only be done through a constitutional amendment that needs a two-thirds majority in Parliament and ratification by the States in some cases. The courts cannot intrude into the domain of Parliament or usurp its law-making authority by giving such directions.
In order to restore constitutional balance, the Bench has to reconsider and, if need be, reverse this decision to rectify the constitutional errors it has made. The debates of the Constituent Assembly records clearly show that the Constitution makers deliberately conferred upon the Governor a very limited margin of discretion under Article 200. This thus raises a serious constitutional question, whether, in exercising its advisory jurisdiction under Article 143(1), the Supreme Court can revisit and overrule a previous judgment delivered by itself.
In Re: The Special Courts Bill, the law was laid down that "though it is always for the Court to re-examine the question already decided by it and to overrule, if necessary, the view taken earlier by it, insofar as all the Courts in the territory are concerned, they ought to be bound by the view expressed by this Court even in exercise of advisory jurisdiction under Article 143(1) of the Constitution."
“The Constitution of India is supreme, and all three wings of our democracy, the executive, the legislature, and the judiciary are under the Constitution of India.”