Pulling up Governors for delays in giving assent to bills passed by state governments, the Supreme Court has ruled in a recent judgement that the Governors should act in accordance with Article 200 of the Indian Constitution. Article 200 lays down the procedure to be followed when a state legislature passes a bill. A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra passed the order on November 10, after hearing a writ petition that was filed by the Punjab government against Governor Banwarilal Purohit for not assenting to four bills passed by the legislature. The judgement order of the case was uploaded on November 23. 

The court also reiterated that the Governor was an unelected Head of the State and is responsible to uphold certain Constitutional powers. “However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures,” the court ruled and added that the ‘real power’ in a Parliamentary form of democracy is vested with the elected representatives of the people. “Members of the government in a Cabinet form of government are accountable to and subject to scrutiny by the legislature. The Governor as an appointee of the President is the titular head of State," the bench said.

Observing that the current writ petition is about the Governor of Punjab not assenting to four Bills that were passed on June 20, 2023, the bench went into the Constitutional responsibilities of a Governor when a state legislature passes a Bill. While clarifying that the court is not expressing opinions on how Governors should exercise their jurisdiction on the Bills presented to them, the bench said that the Governors, however, must act in a manner consistent with the provisions of Article 200 of the Constitution. Here is what the apex court said about Article 200.

What is Article 200?

Article 200 of the Indian Constitution, titled ‘Assent to Bills’, states that when a Bill is passed by the Legislative Assembly of a State, it shall be presented to the Governor. 

The Governor has three options available to them.

“The Governor ‘shall declare’:

(i) either that he assents to the Bill; or

(ii) that he withholds assents therefrom; or 

(iii) that he reserves the Bill for the consideration of the President.”

Article 200 states that the Governor may act on the Bill ‘as soon as possible’ after it is presented to them.  

The Supreme Court court noted that the term ‘shall declare’ implies that the Governor is “required to declare” the exercise of his powers. It further added that the phrase ‘as soon as possible’ is significant and conveys the Constitutional imperative of ‘expedition’ of the process. As the phrase ‘as soon as possible’ has not been clearly defined in the Constitution, it has allowed Governors to sit on bills indefinitely.

As per Article 200, when a Bill is returned, the House shall reconsider the Bill and send it again for the Governor’s approval with or without the changes suggested by the Governor. After the Bill is passed by the House for a second time, the Governor “shall not withhold assent” to the re-passed Bill. 

The SC bench observed that the phrase the Governor ‘shall not withhold assent’ to a Bill, if the Assembly re-sends it the second time, is a “clear indicator” that the role ascribed to the Governor is “recommendatory” in nature and the Governor’s message does not bind the state legislature.

“The Governor, as a guiding statesman, may recommend reconsideration of the entirety of the Bill or any part thereof and even indicate the desirability of introducing amendments. However, the ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone,” the court said.

The apex court also observed that though Article 200 empowers the Governor to withhold assent to a Bill, the Governor should follow the due course of action and communicate the reason to the Assembly ‘as soon as possible’. “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 court ruled.

Other cases against Governors

The apex court’s order is notable as similar concerns have been raised by the Kerala and Tamil Nadu governments, which have both petitioned against the respective governors of the state, Arif Mohammad Khan and RN Ravi. Earlier this week, the Supreme Court issued a notice to the Governor of Kerala and to the Union government, seeking a response for the delay in giving assent to bills passed by the state government. The Kerala government has told the apex court that of the eight bills presented to the Governor for his assent, three have been pending with the Governor for more than two years, and three more for over a year. Similarly, the court asked the Tamil Nadu Governor “What was he doing for three years? Why should the Governor wait for the parties to approach the Supreme Court?” The state government had told the court that Bills passed two to three years ago are still pending with the Governor and the court observed that the Governor returned 10 out of 12 Bills pending with him for his assent only after a notice was issued by the top court on the Tamil Nadu government's plea.

(With inputs from Bharathy Singaravel)

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