The Tamil Nadu Government’s plea in the Supreme Court to set clear timelines for the Governor under Article 200 of the Constitution—dealing with his powers to decide on Bills, passed by the legislature—is becoming curiouser and curiouser.
Despite the top court’s clear enunciation of the law in its November 10 judgment in State of Punjab vs Principal Secretary to the Governor of Punjab, Ravi insisted before the Supreme Court through the Attorney General (AG) for India, R. Venkataramani, on December 1, that he had the power to withhold assent to the Bills passed by the Assembly, and still not send them back to the Assembly for their reconsideration.
In the November 10 judgment, the Apex Court’s three-judge bench, comprising the Chief Justice of India, D.Y.Chandrachud, and Justices J.B. Pardiwala and Manoj Misra (the same bench is now hearing the Tamil Nadu matter), had held in Paragraph 24:
“The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State legislature “as soon as possible” a message warranting the reconsideration of the Bill.”
The bench explained that this provision highlights the importance which has been attached to the power of legislation which squarely lies in the domain of the State legislature.
In Paragraph 25, the bench further added:
“The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance….”
Despite such clear enunciation of law by the bench, the AG—who represented Ravi before the Supreme Court—submitted to the bench on December 1 that Ravi had simply withheld his assent to 10 Bills on November 13, and did not return them to the Assembly for reconsideration. Therefore, the Assembly’s re-enacting these 10 Bills in its special session on November 18 did not bind the Governor by making it mandatory for him to give his assent, he argued.
The AG sought to explain to the bench that the Governor, therefore, was well within his powers to treat the “re-enacted” Bills by the Assembly as “fresh” Bills, and exercise his discretion to refer them to the President.
The bench, which was clearly not persuaded by the AG’s spin on the Governor’s powers, asked him why the Governor did not refer the Bills to the President on November 13, after withholding his assent.
The bench, even though its November 10 judgment in the Punjab case was self-explanatory, assured the AG that it would look at the constitutional provision during its next hearing on December 11. In the meantime, the bench said it would appreciate it if the Governor engaged with Chief Minister M.K. Stalin and resolved the impasse. “We think it’s appropriate that the Governor invites the Chief Minister and has a discussion on the Bills”, the bench observed.
On prodding by the senior counsel, Abhishek Manu Singhvi, representing Tamil Nadu, the bench asked the AG to tell the Union government not to process the Bills, referred by the Governor, as the Court is yet to complete hearing of the case.
During the hearing before the Supreme Court on December 1, Tamil Nadu’s counsel described Ravi’s conduct as one of “obstinacy”, indicating that he defied the Apex Court’s November 10 ruling, by insisting on his own interpretation of Article 200 of the Constitution.
If Governor Ravi is dissatisfied with the November 10 judgment of the Supreme Court, the right course for him is to seek clarification from the Court itself, or file a plea for its reconsideration by a larger bench. The AG, who represented Ravi before the Court, failed to do either of these and instead submitted that his reading of Article 200 was the correct one. It was inexplicable how the Supreme Court’s clear enunciation of the law in a recent judgment could be ignored by the Constitutional functionaries in similar situations impinging on Governor’s powers.
On November 24, while hearing the Kerala Government’s petition against the conduct of Kerala Governor, Arif Mohammed Khan’s conduct in delaying assent to Bills passed by the State legislature, the same bench advised him to refer to its November 10 judgment.
On November 29, former AG and Kerala Government’s senior counsel, K.K.Venugopal sought a set of guidelines from the Court on the Governor’s powers and duties under Article 200, though he conceded that the November 10 judgment is comprehensive enough to cover the facts of Kerala’s petition.
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As in Tamil Nadu’s case, the Kerala Governor too referred seven of the eight bills pending for his assent to the President on November 28. Khan assented to one Bill, namely, the Kerala Public Health Bill, 2022.
The bench allowed the Kerala Government to amend its petition so as to challenge the Governor’s referring seven Bills to the President after the last hearing. The bench’s resolve to examine the contours of Governor’s accountability to the Constitution in the case of Kerala’s Governor clearly holds promise of robust enunciation of law on the subject, leaving no room for doubts or misgivings.
At the same time, it remains to be seen whether Governor Ravi listens to the Court’s sound advice and seeks to break the impasse by talking to Chief Minister Stalin on the pending Bills, if only to avoid inviting further strictures from the Court.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.