Supreme Court: While considering the instant petition under Article 32 of the Constitution filed by State of Tamil Nadu aggrieved with the their Governor withholding of assent to and reserving for consideration of the President of 10 Bills enacted by the Legislature for the State of Tamil Nadu; Governor’s inaction to give sanction for prosecution against tainted public servants and pendency of several important files concerning premature release of prisoners and appointment of public servants; the Division Bench of J.B. Pardiwala* and R. Mahadevan JJ., that reservation by the Governor of the 10 Bills for the consideration of the President in the second round was illegal, erroneous in law and is thus liable to be set aside. The Court further held that the Bills, having been pending with the Governor for an unduly long period of time, and the Governor having acted with clear lack of bona fides in reserving the Bills for the consideration of the President, are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered.
Holding that the concept of ‘pocket veto’ nor that of ‘absolute veto’ finds no place within the constitutional scheme and mechanism envisaged under Article 200 of the Constitution and despite there being no prescribed time-limit, Article 200 of the Constitution cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State, the Court went on to prescribe a time-limit for the exercise of power under Article 200, which was guided by the inherent expedient nature of the procedure prescribed under the Article:
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In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith, subject to a maximum period of 1 month
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In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of 3 months;
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In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of 3 months;
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In case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of 1-month.
The Court also clarified that there is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of functions under Article 201. The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill. The constitutional scheme does not, in any manner, provide that a constitutional authority can exercise its powers under the Constitution arbitrarily. This necessarily implies that the withholding of assent under Article 201 is to be accompanied by the furnishing of reasons for such withholding.
The Court, keeping in mind the expedient nature of Article 201 and having regard to the reports of Sarkaria and Puncchi Commissions, as well as the Memorandum dated 04-02-2016 issued by the Ministry of Home Affairs, prescribed that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of 3 months from the date on which such reference is received. In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.
Background:
The Legislature for the State of Tamil Nadu, between 13-01-2020 and 28-04-2023, enacted and forwarded 12 Bills to the Governor for grant of assent as per Article 200 of the Constitution. Even though the current Governor took charge of the office with effect from 18-11-2021, yet he did not take the necessary action on any of the said Bills forwarded to his office till October 2023. The petitioner, being aggrieved by the inaction on part of the Governor, had to ultimately file the instant writ petition. The Court issued notice to the respondents on 10-11-2023 and the Governor took a decision on the 12 Bills on 13-11-2023 by withholding assent simpliciter to 10 bills. On 28-11-2023, the Governor, without the aid and advice of the Council of Ministers of the State, in exercise of his discretion, reserved the said repassed Bills for the consideration of the President. Although the Governor noted that the Bills were intra-vires the competence of the State Legislature having been legislated under Entry 66 of List I, Entry 32 of List II and Entry 25 of List III, yet he reserved the said Bills for the consideration of the President in the second round on the ground that the Bills suffered from repugnancy on account of being contrary to Entry 66 of the Union List i.e., List I.
Court’s Assessment:
Perusing the history of Article 200 of the Constitution and the commentaries attached to it, the Court noted that heart of the controversy in the instant case is in the interpretation of the substantive part of Article 200 and the first proviso to it. After delving into the lengthy pre-constitutional and post constitutional history of Article 200, the Court pointed out that In discharge of his functions under Article 200, the Governor has three options to choose from when a bill passed by the State legislature is presented to him- to assent; to withhold assent; and to reserve the bill for consideration of President.
The Court said that First proviso to Article 200 should be read in conjunction with the option of withholding of assent provided in the substantive part of Article 200. It is not an independent course of action and has to be mandatorily initiated by the Governor in cases where the option of withholding of assent is to be exercised. The decision of the Court in State of Punjab v. Principal Secretary to the Governor of Punjab, (2024) 1 SCC 384, lays down the correct position of law in this regard.
The Court explained that the expression “the bill falls through unless the procedure under the first proviso is followed” as used in Union of India v. Valluri Basavaiah Chowdhary, (1979) 3 SCC 324, signifies that once the Governor declares withholding of assent and returns the bill to the House or Houses, the bill would lapse or fall through unless the House or Houses reconsider the bill in accordance with the suggestions made by the Governor in his message and present it to him after re-passing. The expression “unless the procedure under the first proviso is followed” cannot be construed to mean that the Governor exercises discretion in setting the machinery prescribed under the first proviso in motion. Once the Governor exercises the option of withholding assent, he is under an obligation to follow the procedure prescribed in the first proviso “as soon as possible”.
The Court further clarified that the substantive part of Article 200 consciously uses the expression “shall declare” to signify that there is no scope of inaction, and whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein. Further, the expression “as soon as possible” in the first proviso permeates Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them. Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simpliciter withholding of assent, meaning thereby that ‘absolute veto’ is also impermissible under Article 200.
Article 200 occupies an important role of giving the bills passed by the State legislature the authority of an Act. “Without the procedure envisaged under Article 200, the bills remain mere pieces of paper, skeletons without any flesh or lifeblood flowing through their veins, mere documentation of the aspirations of the people without any possibility of bringing them to fruition”.
As a general rule, it is not open for the Governor to reserve a bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso. The use of the expression “shall not withhold assent therefrom” appearing in the first proviso places a clear embargo on the Governor and is a clear enunciation of the requirement that the Governor must assent to a bill which is presented to him after complying with the procedure laid down in the first proviso. The only exception to this general rule is when the bill presented in the second round is materially different from the one presented to the Governor in the first instance. In such a scenario, it would be open for the Governor to choose from the three options provided in the substantive part of Article 200. Furthermore, the Court clarified that only in instances where the Governor is by or under the Constitution required to act in his discretion [like Article 163(1) and 2nd proviso to Article 200], would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review. The Court further declared B.K. Pavitra v. Union of India, (2019) 16 SCC 129, to be per incuriam to the extent of the two observations made therein — Firstly, that the Constitution confers discretion upon the Governor insofar as the reservation of bills for the consideration of the President is concerned and; Secondly, that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny.
“The use of the expression “as soon as possible” in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent”.
Coming onto Article 201 of the Constitution, the Court said that the occasion for the reservation of a bill for the consideration of the President by the Governor may arise where a constitutional provision makes the assent of the President to be a condition precedent to a State legislation becoming enforceable or for the purpose of securing some immunity to the State legislation. Such a requirement can be found in Articles 31-A, 31-C, 254(2), 288(2), 360(4)(a)(ii) of the Constitution etc. The second proviso to Article 200 also makes reservation for the consideration of the President mandatory.
Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to the Supreme Court in exercise of powers under Article 143 of the Constitution.
The Court clarified that it is not undermining the office of the Governor. “All we say is that the Governor must act with due deference to the settled conventions of parliamentary democracy; respecting the will of the people being expressed through the legislature as-well as the elected government responsible to the people”. A Governor must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes.
“In times of conflict, Governor must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, wisdom and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be impelled keeping in mind the dignity of the high constitutional office that he occupies”.
In its concluding remarks, the Court emphasised that constitutional authorities occupying high offices must be guided by the values of the Constitution. “These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers”. When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built.
Decision:
With the afore-stated assessment, the reservation of the 10 Bills by the Governor of Tamil Nadu for the consideration of the President on 28-11-2023 after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 was declared to be erroneous in law by the Court.
Any consequential steps that might have been taken by the President on these ten Bills were held to be equally non-est and were set-aside.
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The Constitution gives all Vetos only to supreme ……. to extract, receive huge monies and keep it at “judges'” homes in gunny bags. There is absolutely no any right of any kind whatsoever to any person or authority in this country except persons sitting in these courts and dirtying the Judgment Seat of Vikramaditya. Only they have right and full control on everything. Perhaps, the people have now rightly begun to call the supreme court as supreme kotha.