An opportunity to clarify the law on the exercise of discretion by Governors in the Indian federal structure is unfolding before the Supreme Court. A three-judge bench of Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, acting on petitions moved by Punjab, West Bengal, Telangana, Kerala, and Tamil Nadu, all opposition-ruled States, passed a slew of orders requesting the Governors of these States to either reply to the grievances the popularly elected governments had against them or settle their differences with the Chief Ministers amicably.
The bench’s judgment in State of Punjab vs Principal Secretary to the Governor of Punjab, pronounced on November 10, set the pace for the hearing of petitions by other States against their Governors. The Punjab government was aggrieved that Governor Banwarilal Purohit neither assented to nor returned four Bills passed by the Assembly. The government also accused the Governor of not furnishing a recommendation for the introduction of certain Money Bills in the Assembly.
The bench held that in a parliamentary democracy, real power rested with the elected representatives of the people and the Governor, as an appointee of the President, is only the titular head of State. It clarified further that the Governor acts on the aid and advice of the Council of Ministers, except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor.
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Examining Article 200 of the Constitution that deals with the Governor’s power to give or withhold assent to a Bill, the bench held that the term “shall declare” used in this provision implied that the Governor is required to declare the exercise of his powers.
The bench noted that the first proviso to Article 200 stipulated that the Governor may “as soon as possible” return a Bill (which is not a Money Bill) for reconsideration by the Assembly in light of the amendments suggested in a message. The expression “as soon as possible”, the bench emphasised, conveyed a constitutional imperative of expedition.
More significantly, the bench underlined that the Governor was not at liberty to keep a Bill pending indefinitely. Such a course of action, the bench cautioned, would be contrary to the fundamental principles of a constitutional democracy based on a parliamentary pattern of governance.
The bench 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.
Detailed verdict
In the case of Punjab, the Supreme Court felt the need to pronounce a detailed verdict, as its brief order in April in the case of Telangana, failed to convince the Governors of other opposition-ruled States that an inordinate delay in clearing Bills passed by the Assembly was not permissible under the Constitution. The bench of the Chief Justice Chandrachud and Justice P.S. Narasimha, while clarifying the law on April 24, disposed of the Telangana government’s petition in view of the fact that Governor Tamilisai Soundararajan had taken action on the 10 Bills pending with her.
In the Punjab case, the three-judge bench referred to the concluding part of the first proviso, which 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 bench held that it was legally permissible for the Speaker to reconvene the Assembly—which has not been prorogued but only adjourned—as he had exclusive jurisdiction over regulating the procedure of the House. The bench underlined the need for constitutional functionaries to avoid imbroglio by statesmanship and collaboration.
The same three-judge bench expressed its surprise when the Kerala government and the Tamil Nadu government arraigned their respective Governors for inaction on long-pending Bills, asking the reasons for the inordinate delay and directing the Governors to read the November 10 judgment in the Punjab case to understand the legal position on the exercise of their discretion.
On November 13, Tamil Nadu Governor R.N. Ravi conveyed his decision to withhold assent to as many as 10 Bills passed by the Assembly. Of these, eight were passed after the Dravida Munnetra Kazhagam (DMK) government came to power in 2021.
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Most of these Bills relate to proposals to amend the statutes of universities to enable the Chief Minister to take over the role of Chancellor, replacing the Governor.
Although Ravi did not return the Bills for reconsideration by the Assembly, the latter on November 18 readopted the Bills under Rule 143 of the Assembly Rules, making it mandatory for him to give his assent to the Bills. However, Ravi contested the legal position before the Supreme Court, arguing through the Attorney General (AG) for India, R. Venkataramani, that he had the power to refer the readopted Bills to the President by treating them as fresh Bills as the Assembly, he claimed, could not reconsider the Bills that he did not return, but withheld.
A stormy relationship: Tamil Nadu Governor R.N. Ravi with Chief Minister M.K. Stalin at a function at Raj Bhavan in Chennai in May 2023. | Photo Credit: M. VEDHAN
The bench asked the AG why the Governor had not referred the same Bills to the President on November 13 after withholding his assent. As the next hearing of the case is listed on December 11, the bench advised the Governor to invite Chief Minister M.K. Stalin and have a discussion on the Bills. Nudged by Tamil Nadu’s senior counsel Abhishek Manu Singhvi, the bench asked the AG to tell the Union government not to process the Bills referred by the Governor in the meantime. The President, while taking a decision on the Bills referred by the Governor, is guided by the aid and advice of the Union Council of Ministers.
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, although he conceded that the November 10 judgment was comprehensive enough to bind the Kerala Governor to give his assent to the pending Bills.
The Kerala Governor had referred seven of the eight Bills pending for his assent to the President on November 28 and gave his assent to one Bill, namely, the Kerala Public Health Bill, 2022. The bench allowed the Kerala government to amend its petition and challenge the Governor referring the seven Bills to the President after the previous hearing.
The bench’s resolve to examine the contours of the Governor’s accountability to the Constitution in the Kerala case clearly holds promise for a robust enunciation of law on the subject, leaving little room for doubts and misgivings.
Highlights
- A three-judge Supreme Court bench, acting on petitions moved by some opposition-ruled States, passed a slew of orders requesting the Governors of these States to either reply to the grievances the elected governments had against them or settle their differences with the Chief Ministers amicably.
- This is an opportunity to clarify the law on the exercise of discretion by Governors in the Indian federal structure.
- The Supreme Court may well have to lay down detailed guidelines to avoid obfuscation by obstinate Governors.
The West Bengal case
In the West Bengal case, the government filed a petition in the Supreme Court against Governor C.V. Ananda Bose over the interim Vice Chancellor appointments at State-run universities. On December 1, a bench of Justices Surya Kant and Dipankar Datta asked the AG to organise a joint meeting with all stakeholders to break the impasse.
The Calcutta High Court had upheld the interim Vice Chancellor appointments made by the Governor in his capacity as Chancellor in 13 State-run universities. The State government appealed against it in the Supreme Court.
The West Bengal Assembly had passed the West Bengal University Laws (Amendment) Bill, 2023, to make the Chief Minister the Chancellor of State-run universities, replacing the Governor, and to reconstitute the search committees to select Vice Chancellors. As in the Tamil Nadu case, the West Bengal Governor had withheld his assent to the first Bill passed by the Assembly last year. As the Assembly has now readopted this Bill, the Governor’s mandatory assent is awaited under the Constitution.
Meanwhile, a recent Supreme Court judgment in the case of the reappointment of Kerala’s Kannur University Vice Chancellor has come to the aid of the West Bengal Governor. The Supreme Court’s three-judge bench, presided by Chief Justice D.Y. Chandrachud, quashed the reappointment of Gopinath Ravindran as the Vice-Chancellor and held that the Governor, by virtue of his office as the ex officio Chancellor, is not bound to act on the aid and advice of the Council of Ministers.
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Governor Bose had contended that he could not give extension to Vice Chancellors as suggested by the State government because he found them ineligible.
However, with the Supreme Court nudging the stakeholders in West Bengal to have a dialogue to end the impasse, Chief Minister Mamata Banerjee called on Bose to discuss the issue and expressed her satisfaction about the outcome.
All eyes are now on the Tamil Nadu Raj Bhavan, even as the Supreme Court is set to hear Ravi’s decision to refer to the President the Bills repassed by the Assembly. If Ravi and Stalin too sort out their differences across the table, it will be a triumph for the Supreme Court-initiated mediation.
On the larger question of the Governor’s assent to Bills passed by the Assembly, it appears that the Supreme Court may well have to lay down detailed guidelines in order to avoid obfuscation by obstinate Governors.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he continues to report and comment on legal issues for various news portals.
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