Guv not bound by aid, advice of council of ministers in reserving bill for president’s consideration: SC
New Delhi: The Supreme Court on Thursday ruled that the governor has discretion while exercising options under Article 200 for referring a bill passed by the state assembly to the president for consideration, or for returning it to the legislature with his comments and is not bound by aid and advice of council of ministers.
In its unanimous verdict, a five-judge Constitution bench headed by Chief Justice B R Gavai, however, held that the governor has no option to withhold a bill simpliciter.
The bench also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar said, “…the Governor has no option to withhold a Bill simpliciter. Therefore, it is not that the discretion so conferred, allows a situation wherein the Governor could frustrate a Bill in perpetuity.”
“The three clear options that he has, is to grant assent, withhold assent and return the Bill to the legislature for reconsideration, or reserve the Bill for consideration of the President. He can exercise his discretion in choosing any of these three options, having given due regard to the aid and advice tendered by the Council of Ministers, and keeping in mind his duty – to protect and defend the Constitution,” the bench said.
Answering the presidential reference in which President Droupadi Murmu has sought opinion of the top court, the bench said it is conscious that a government run within the four corners of a written Constitution, must be responsible.
“Having already held that the Governor does not have powers simpliciter to withhold, we find that the Governor has discretion in the context of referring a Bill for the consideration of the President, or for returning the Bill to the Legislature with his comments.
“We do not think that this interpretation confers any unfettered powers on the Governor. In fact, it does not in any way deviate from the concept of a responsible constitutional government,” it said
Referring to the 2016 verdict of a five-judge Constitution bench, the top court said it was in agreement with the view affirmed in the Nabam Rebia case that Article 200 of the Constitution confers discretionary powers on the governor and does not find any “compelling reason” to deviate from this position.
It said that the April 8 verdict in Tamil Nadu case which fixed timelines for the governor and the president to accord assent to bills passed by assembly and prompted the presidential reference, the bench said the view on discretionary powers of governor expressed in it were based on a partial reading of earlier judgments of apex court.
In its 111-page verdict, the bench said that the Constitution does not explicitly state in which provisions discretion is contemplated for the governor to exercise and this court has read discretion into the function of the governor under the Constitution by way of its judgments.
“Our usage of the word ‘function’ is done so deliberately, in contradistinction to ‘power’ because a function carries with it, implicitly, a constitutional obligation. Thus, we are of the considered opinion that the Constitution requires the Governor, in exercise of his ‘function’ use ‘discretion’ in certain circumstances, given the manner in which our constitutionalism is practised, or worked,” it said.
Referring to various provisions in the Constitution on lawmaking, the bench said the act of ‘having been reserved’, is a function that can be performed by the governor alone, to the exclusion of others and it is neither in the hands of the legislature nor the executive.
“The Governor is the sole authority to reserve a Bill for the consideration of the President under Article 200. For a moment, if it is assumed that there is no discretion, then even if advice is tendered contrary to the written text of the Constitution, the Governor will be bound by such advice.
“If that be so, the Governor and the President ultimately fail in their duty to protect and defend the Constitution because the President’s power of assent is hinged on the Governor’s power to reserve the Bill for the consideration of the President,” the bench said.
It said the role of the president in protecting and defending the Constitution – in binding the Union as a cohesive unit – is crucial and the president will be unable to exercise his functions, until the governor a priori reserves the bill for his assent.
“It is unlikely that the Council of Ministers – without whose support the Bill could not have been passed by the Legislature – will advise the Governor, to return a Bill to the Legislature, or refer it to the President, under Article 200, thus frustrating the operation of numerous provisions of this Constitution, including the President’s powers. In such a scenario, it is unfathomable to hold that the Governor is not conferred with discretion, under Article 200,” it said.
The top court said a scenario wherein the council of ministers would tender aid and advice to the effect that the governor must return a bill for reconsideration, or reserve it for the president’s assent, is not conceivable. Rather, the converse is inevitable, that is if the governor was bound by the aid and advice of the council of minister, all bills would be granted assent, rendering the option of referring to the president, or returning with comments, nugatory, it said.
The apex court also ruled that the actions of governors and the President in granting, withholding, or reserving assent to bills are not subject to judicial review.
The observations, stressing the separation of powers between the judiciary and the executive, were made in a judgment by a five-judge Constitution bench headed by Chief Justice B R Gavai while answering the Presidential reference on the issue of fixing timelines in granting assent to bills by governors and the President.
“We find no reason to deviate from the binding decisions of this Court and for the additional reasoning… are of the considered view that the discharge of the Governor’s or President’s functions under Articles 200 and 201 respectively, is not justiciable,” it held.
The verdict dealt with the crucial issue of justiciability of functions of governors and the President under Article 200 and Article 201, respectively and effectively overturned the views of a previous two-judge bench in the Tamil Nadu case that the governor’s actions to be justiciable and had laid down grounds for such challenges.
“The judicial review of a Bill, that is anterior to its enactment as law, is unheard of and unfathomable in our constitutional practice and history. Judicial review of legislation is premised on the fact that it will be considered by the court only after it has been made into law – i.e., assented by the Governor or President, as the case may be, and brought into force. It is this judicial review over legislation that our constitutionalism envisages, and this particular form is an essential feature of our basic structure,” it said.
Article 200 empowers governors to act on bills passed by the state legislature by either granting assent, withholding assent, or reserving the bill for the President’s consideration. They may also return a bill to the legislature with recommendations or for reconsideration.
Article 201 says, “When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom…”.
The Constitution bench found that the Tamil Nadu judgment had deviated from a consistent line of rulings by larger benches, which had explicitly held that a “merits-review or the correctness of the assent granted by the President was not within the purview of permissible judicial scrutiny.”
The opinion characterised the role of the governor under Article 200 not as a final executive order, but as the initiation of a “dialogic process” within the constitutional framework.
Referring to judgments, the bench said, “We are unable to endorse the view advanced in State of Tamil Nadu … since the Governor cannot withhold assent simpliciter, the only options he has are to initiate the dialogic process under Article 200 – either through returning the Bill to the Legislature for reconsideration or reserving it for the President’s assent, who in turn under Article 201, may choose to return the Bill with a message to the Legislature as well.
“The initiation of a dialogic process where other constitutional functionaries are consulted before the Governor or President takes a decision on whether the Bill must be assented to or not, is not a justiciable act in itself.”
It said the dialogic process is a part of the system of checks and balances, and the federal system that our Constitution envisages and such a process, contemplated under Articles 200 and 201, is advisory, persuasive, deliberative, mediative, and consultative.
“It stands at a markedly different position from the discharge of an adjudicatory function, or a definitive exercise of executive power – both of which are subject to judicial review.
“The discharge of functions under Articles 200 and 201, however, is simply the initiation of a dialogic process, which cannot be the subject of judicial review,” it said.
Under the court’s formulation in the Tamil Nadu case, each of the three options — assent, reservation and return of the Bill — becomes justiciable.
“We find that such a conclusion belies logic. Taking this line of reasoning further, if the reservation of a Bill, or withholding and returning it to the Legislature, is justiciable, then the grant of assent too would necessarily have to be subject to judicial review. This opens another front to challenge a Bill, and the resulting legislation…,” it said.
In other words, to determine whether a Bill has been correctly accorded assent or not, the primary document brought before the court’s consideration will be the text of the Bill, anterior to the stage of it becoming a law, it said.
