Can a Governor withhold assent without reasons?

Tamil Nadu Governor R.N. Ravi’s decision to withhold assent to several Bills passed by the Assembly has ignited a constitutional controversy.

Tamil Nadu Governor R.N.Ravi at a Raj Bhavan event in Chennai on September 23, 2023. | Photo Credit: VELANKANNI RAJ B

According to reports, the Governor of Tamil Nadu, R.N. Ravi, has “withheld assent” to as many as 10 Bills passed by the Tamil Nadu Legislative Assembly. Of these, eight were passed after the DMK Government came to power in 2021.

Most of these Bills relate to proposals to amend the statutes of universities to enable the Chief Minister to take over the role of the Chancellor, replacing the Governor. There are 20 State Universities in Tamil Nadu, and in four of them, the posts of Vice-Chancellors, including that of the University of Madras, are vacant.

The face-off between the Governor and the State government over the filling of vacant Vice-Chancellors’ posts in the State Universities probably forced Ravi to exercise his power under Article 200 of the Constitution to withhold his assent to the Bills passed by the Assembly, removing him from the office of the Chancellor.

The question is whether the Governor can withhold his assent to a Bill passed by the legislature without stating reasons, as in this present case. Although the Governor did not return the Bill for reconsideration by the Assembly, the latter on November 18 readopted the Bills under Rule 143 of the Assembly Rules. Will the Governor now be bound to give his assent to the Bills passed by the Assembly afresh?

On November 10, the Tamil Nadu government informed the Supreme Court that 12 Bills passed by the Legislative Assembly between 2020 and 2023 were still awaiting the Governor’s approval, even though they had been submitted for assent between January 13, 2020, and April 28, 2023. Additionally, four files seeking approval to prosecute various crimes involving alleged moral turpitude by public servants, which were submitted to the governor between April 10, 2022, and May 15, 2023, were also pending.

Furthermore, 54 files requesting the premature release of prisoners, submitted to the governor between August 14, 2023, and June 28, 2023, were also awaiting approval. Moreover, due to the delay in approving proposals for the appointment of Tamil Nadu Public Service Commission (TNPSC) members, the Commission is currently functioning with only four members instead of its full complement of 14.

Understanding Article 200

The Supreme Court is scheduled to hear the case again on November 20, with the Attorney General for India, R. Venkataramani, in attendance. During the hearing on November 10, the three-judge bench, led by Chief Justice of India D.Y. Chandrachud, expressed its extreme dissatisfaction with the Governor’s excessive delay in making a decision on the Bills passed by the Legislative Assembly.

Under Article 200, when a Bill has been passed by the Legislative Assembly of a 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.

The first proviso to Article 200 enables the Governor to return a non-Money Bill for reconsideration by the Assembly but states that the Governor is bound to give his assent if the Assembly passes the Bill after such reconsideration, with or without amendment.

The second proviso to Article 200 stipulates that the Governor shall not grant assent to but shall reserve for the President’s consideration any Bill that, in the Governor’s opinion, would, upon becoming law, diminish the powers of the High Court to such an extent that it jeopardises the role that the Constitution has assigned to that Court.

Without fulfilling the ingredients of these two provisos to Article 200, it is doubtful if the Governor has any power of discretion to withhold assent to a Bill passed by the legislature.

In Nabam Rebia and Bamang Felix v Deputy Speaker and others (2016), the respondents referred to Article 163(2) of the Constitution, which states as follows: “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion”.

The bench answered the respondents as follows: “We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision so requires it, i.e., where the exercise of such power on the aid and advice would run contrary to the constitutional scheme or would be contradictory in terms.

Article 200 of the Constitution was discussed in the Constituent Assembly, before it was inserted in the Constitution, as Draft Article 175. The proviso to Draft Article 175 stated that the Governor “may in his discretion return the Bill together with a message requesting that the House will reconsider the Bill”. The words “that the Governor may in his discretion” were omitted when it became Article 200.

On the powers of the Governor

The powers of the Governor, including his discretionary powers, came up for consideration in Samsher Singh v State of Punjab (1974). Chief Justice A.N. Ray (speaking for himself and four other Judges) held that the expression “in his discretion” is used in those Articles of the Constitution that confer special responsibilities on the Governor. The bench observed that if the Governor was held entitled to exercise his powers personally, then that interpretation would extend to several Articles of the Constitution, including Article 200. “Parliamentary Democracy will then become a dope, and national elections a numerical exercise in expensive futility,” the bench observed.

During the hearing on November 10, a three-judge bench, led by Chief Justice of India D.Y. Chandrachud, expressed its dissatisfaction with the Governor’s excessive delay in making a decision on the Bills passed by the Legislative Assembly. | Photo Credit: ANI

All the seven Judges constituting the Bench were explicit and unequivocal in their view that the principle of Cabinet responsibility is firmly entrenched in our constitutional democracy and that our Constitution does not accept any “parallel administration” or “dyarchy”.

Justice Sarkaria Commission (1988) gave five examples of areas where the Governor exercises his discretion independently of the Council of Ministers—all of them by necessary implication. Reserving a Bill for the consideration of the President (Article 200)— and not withholding assent —is one of them. The Justice M.M. Punchhi Commission report (2010) on Centre-State relations recommended that the area for the exercise of discretion of the Governor is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful.

In Paragraph 114 of his concurring judgement in Nabam Rebia, Justice Madan B. Lokur, held: “....the Governor cannot withhold assent to a Bill indefinitely but must return it to the Assembly with a message, and this could include his recommendation for amendments to the Bill”. He held that the discretion given to the Governor in respect of his relations with the Legislative Assembly is not only limited and circumscribed by the Constitution but also by the Rules framed by the Legislative Assembly under Article 208 of the Constitution.

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.