Supreme Court ruling on Governor powers will be a game changer for federal disputes

This landmark decision could reshape the relationship between Governors and State governments across India.

Punjab Governor Banwarilal Purohit in Jalandhar on July 27, 2023. The elected government in Punjab was aggrieved on the ground that the Governor neither assented to or returned four Bills passed by the State Assembly. | Photo Credit: ANI

The office of the Governor has begun to play a disproportionate role in the affairs of opposition-ruled States, particularly since the Narendra Modi government won its second term in office in 2019. Thus most opposition-ruled States, namely, Kerala, West Bengal, Punjab, Telangana, Jharkhand and Tamil Nadu have had problems with respective Governors, who sought to display overbearing attitudes vis-a-vis the elected governments, using their discretionary powers under the Constitution. Some of these governments, of late, have begun to knock the doors of the judiciary, seeking judicial remedies to ensure smooth governance in their States, as well as to keep the Governors under check.

Supreme Court’s judgment in State of Punjab vs Principal Secretary to the Governor of Punjab and Another, delivered on November 10, and made available on November 23, is a landmark in resolving federal disputes impinging on the office of the Governor. The elected government in Punjab was aggrieved on the ground that its Governor, Banwarilal Purohit, neither assented to or returned four Bills passed by the State Assembly. The Governor was also accused of not furnishing a recommendation for the introduction of certain Money Bills in the Assembly.

The dispute between the Aam Aadmi Party-led Government in Punjab and the Governor was over the legality of the Assembly session, “reconvened” by the Speaker, Kultar Singh Sandhwan, on June 19 and 20.  The Speaker “reconvened” the session, which was adjourned by him sine die on March 22. The Assembly passed the four Bills in contention during the two-day session in June. The Governor, doubting the legality of this session, refused to take any action on these Bills. The Governor maintained that the Speaker should have prorogued and not adjourned the session sine die in March, to be reconvened in June and October.

The Speaker again “reconvened” the session on October 19, in order to introduce three Money Bills, for which the recommendation of the Governor was required in terms of Article 207(1) of the Constitution.

The Governor, however, “withheld” his approval to the Bills, on the ground that both the June as well as October sessions of the Assembly were “patently illegal, against the accepted procedures and practice of the legislature, and against the provisions of the Constitution”. The Governor advised the Chief Minister, Bhagwant Mann, to call for a fresh Monsoon/Winter session and to forward an agenda setting out the specific business to be conducted so as to enable him to grant permission for the summoning of the House to transact the business.

However, after the Supreme Court entertained the Punjab Government’s petition on November 6, the Governor recommended that two of the three Money Bills might be introduced before the Assembly.

Real power rests with people’s representatives

In its judgment, the Supreme Court’s three-judge bench led by the Chief Justice of India, D.Y.Chandrachud and comprising Justices J.B. Pardiwala and Manoj Misra, held that in a Parliamentary form of democracy, real power rests in the elected representatives of the people and that the Governor, as an appointee of the President, is the titular head of State. The bench clarified that the Governor acts on the “aid and advice” of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor.

It is significant that the bench examined Article 200 of the Constitution, specifying the Governor’s power to give or withhold assent to a Bill, in order to clarify the law. The term “shall declare” in Article 200, the bench clarified, implies that the Governor is required to declare (emphasis by the bench) the exercise of his powers.

The bench also noted that the first proviso to Article 200 stipulates that the Governor may “as soon as possible” return the Bill (which is not a Money Bill) for reconsideration by the Assembly in the light of the amendments suggested in a message. 

The bench clarified that the first proviso attaches to the second option (withholding of assent), and hence begins with an enabling expression, “may”. The concluding part of the first proviso stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase “shall not withhold assent therefrom” in the first proviso is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of assent by the Governor to the Bill in the first instance. The bench made it clear that the role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State legislature.

In the context of the ongoing controversy over the Tamil Nadu Governor, R.N.Ravi’s withholding of his assent (without stating reasons) to the Bills passed by the Assembly—which had later readopted those Bills and presented to him for his assent—the Supreme Court’s clarification assumes significance. The Tamil Nadu Governor Ravi has no option but to give his assent to the Bills, readopted by the Assembly and presented to him again.

Kerala Governor Arif Mohammed Khan speaks to the media on Kerala govt’s petition in Supreme Court against him in Thiruvananthapuram on November 7, 2023. | Photo Credit: ANI

More important, the bench made it clear that the Governor could not withhold assent to a Bill, without following the course of action indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill.  The expression “as soon as possible”, the bench emphasised, conveys a constitutional imperative of expedition. “Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage”, the bench reminded the Governors.

The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever, the bench added. The bench warned that any other reading of Article 200 would leave the Governor in a position to virtually veto the functioning of the legislative domain by a duly elected legislature. “Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance”, the bench held.

The bench also held that it was legally permissible for the Speaker to reconvene the assembly—which has not been prorogued, but only adjourned - as he has exclusive jurisdiction over regulating the procedure of the House. The bench referred to the difficulty faced by the Punjab government in having the House summoned by the Governor earlier necessitating the Court’s intervention, and pointed out that the imbroglio could have been obviated by statesmanship and collaboration.

The bench clearly indicted the Punjab Governor for his action in casting doubt on the validity of the Assembly session, saying it was replete with grave perils to democracy.

As the Apex Court is set to hear Tamil Nadu’s plea for fixing timelines for the Governor to give assent to Bills passed by the Assembly on December 1 in the backdrop of this judgment, the Tamil Nadu Governor may well see the writing on the wall, and ensure compliance with it. In the last hearing on November 20, the bench expressed its disapproval of the Governor indicating his withholding of assent to the Bills passed by the Assembly only after it entertained the State government’s petition against him. 

In a sense, the Tamil Nadu Governor stands indicted by the Supreme Court, even before the next hearing on December 1, by virtue of the clear enunciation of the law in the Punjab case.

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.