It is now almost common knowledge that a Bill passed by the legislature of any State mandatorily needs “assent” of the Governor of the state, meaning his approval to mature the Bill into an Act. Assenting to a Bill is not a privilege of the Governor, it is his Constitutional duty.
When a Bill, not being a money Bill, is presented by the legislature to him he may either assent to the Bill or return the Bill “as soon as possible” to the legislature for its reconsideration – either of the entire Bill or any of its provisions (Article 200). Occasions for signifying Governor’s assent to a Bill is the rule and the occasions for a Governor returning a Bill for reconsideration is an “exception to the rule”. And if on reconsideration the legislature once again passes the Bill with or without any amendment and again presents the Bill, the Governor has no option but to signify his assent. Instead of assenting to a Bill the Governor may reserve a Bill for consideration of the President for some obscure reasons for protection of the powers of High Court mentioned in the second proviso to Article 200 of the Constitution.
And, if the Bill is so reserved for consideration of the President, the President may declare his assent to the Bill or withhold his assent and, unless the Bill is a money Bill, the President may direct the Governor to return the Bill to the legislature for its reconsideration within a period of six months from the date of receipt of the President’s said direction.
If on reconsideration of the Bill, the legislature also passes the Bill with or without any amendment, the Bill is required to be presented to the President for his consideration and in such event Constitution surprisingly remains silent without casting any compulsive obligation on the President to give his assent either within any fixed time or at all. Such an unprecedented bizarre situation is required now to be addressed and resolved by the Supreme Court in a writ petition filed on 23 March 2024 against the Governor and the President by the Kerala Government under Article 32 of the Constitution.
Incidentally, “Money Bills” have been exhaustively defined in Article 199 and the special procedure in respect of such Bills has been provided in Article 198 of the Constitution. But neither of the Articles has any relevance in the present context. The bizarre situation is created by the Constitution itself because of its dissimilar treatment of two almost similar situations.
In the case of the Central Legislature i.e. Parliament passing any Bill for the second time after the Bill is returned by the President to Parliament for reconsideration, the Constitution casts a compulsive obligation on the President to give his assent by expressly barring him from withholding his assent (Article 111).
Treatment of similar situations differently seems to be constitutionally incongruous and against the spirit of the Constitution. No explanation is also available for the aforesaid differential treatment in the debates of the drafting committee of the Constituent Assembly held respectively on 20 May 1949 and 1 August 1949. Article 176 of the Draft Constitution, which is now Article 201 of the Constitution, was adopted and incorporated in the Constitution as drawn by the drafting committee without any amendment at all on 1 August 1949.
But Article 91 of the Draft Constitution was deliberated on 20 May 1949 at length and by way of amendments a phrase
(i) “as soon as possible” (“Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill ……. with a message requesting that they will reconsider the Bill”) at the beginning and the words
(ii) “President shall not withhold assent thereform” (“and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom”) at the end were added to the proviso to Article 91 of the Draft Constitution which is now Article 111 of the Constitution. Significantly neither amendment finds place anywhere in Article 201 of the Constitution. There seems to be no rationality behind the aforesaid differential treatment creating a bizarre situation in the working of Constitutional provisions which has now necessarily saddled the Apex Court with the responsibility of resolving the glaring dissimilarity and incongruity while deciding the said Writ Petition under Article 32 of the Constitution filed by Kerala Government against the President, Governor of Kerala and others seeking redressal against the conduct of the Governor of the State first, and of the President in not assenting to as many as seven Bills which were presented to the Governor by the State Legislature for his assent since 2021.
Of these, four were referred by the Governor to the President for his consideration and are pending since long. The President has withheld consent for long without any reason or explanation therefor although none of the provisions of the said Bills has any implication for any affairs of the Central Government. It is to be noted in this context that in terms of Article 74 of the Constitution, the President is to act on the aid and advice of the Ministry at the Centre just as the Governor is to act on the aid and advice of the Ministry in the state (Article 163).
In this context, provisions of Article 311 of the Constitution providing immunity from personal liability to both the Governor and the President for their commissions and omissions also appears to have no relevance. In the present context there is no question of, nor can there be, personal liability either of the Governor or of the President arising in any event. Moreover, there are judicial authorities upholding amenability of both the Governor’s and the President’s conduct to judicial review under Article 32 of the Constitution.
Both “stoic silence” for a long period for withholding assent and that too without any reason are likely to be held against each of them as unreasonable and arbitrary. If it is so held by the Apex court that would likely demean the dignity and honour of the Governor as also the President. There also seems to be no reason why the Constitutional Court cannot direct issuance of a mandamus directing each of them to act to give effect to the spirit of relevant Constitutional provisions of a democratic polity in giving assent to each of the pending Bills within a fixed time. Such findings of the Apex Court are reasonably expected and are likely to work as a guideline for the future also for such unwelcome and unfortunate imbroglios.
A ‘sweet’ or ‘sour’ relationship between the Governor and an elected government matters hugely to the welfare of the state and to Constitutional ethics and morality of a democratic polity as the government is the reflection of the will of the majority people of the polity. The constitutional history of our country confirms that until recently, instances of a ‘sour’ relationship between the State Ministry and the Governor were not only few but also far between and mostly of temporal nature. But unfortunately such instances are now being seen more frequently and for longer period to the detriment of welfare of the people at large.
It is unfortunate that such instances are peculiarly more and more visible in a few states like West Bengal, Kerala, Tamil Nadu, Andhra Pradesh, Arunachal Pradesh and Himachal Pradesh and also in the two union territories of Puducherry and Delhi where in place of Governor there are Lieutenant Governors in the Constitutional government structure. Whether Governors or Lieutenant Governors, all are appointees of the President on the advice of the Central Ministry at the head of which is the Prime Minister.
The ministry at the Centre is now formed by National Democratic Alliance (NDA) of which the Bharatiya Janata Party is the main constituent since 2014. In all the aforesaid states and union territories parties other than those constituting the NDA have formed the Ministries. In the existing unwelcome situation of discord between the Governor and the Governments in some States, the ever-suspicious political critics cannot be blamed for smelling a rat! It is a matter of great regret and wholly undesirable that in spite of clear and unambiguous provisions of our Constitution, the two constitutional functionaries have embroiled themselves in unnecessary confrontation with no meaningful consequence for the welfare of the State.
In the first place, it must be made absolutely clear that in normal circumstances, there is no legitimate scope for any confrontation between the two and more so when there is no question or occasion for giving rise to an issue either
(i) on the question of formation of government in the State, or
(ii) on the question of whether the Government of the State can be carried out in accordance with the provisions of the Constitution. To be more specific there was no, nor could there be any issue with regard to formation of government (Articles 163 and 164) and similarly there was no, nor could there be an issue with regard to any failure of constitutional machinery in the State (Article 356).
A Governor of a State in India, unlike a governor of a State in the United States or elsewhere, does not govern a State although the Constitution has made him the head of the executive of the State and all executive powers of the State are vested in him. The executive powers vested in him are required to be exercised by the Governor either directly or through officers subordinate to him in accordance with the provisions of the constitution. In all these situations he need not and does not depend upon the aid and advice of the Council of Ministers.
It has also been held by the Supreme Court that a Governor can exercise his discretionary power only if there is a compelling necessity to do so. He is otherwise to be aided and advised by the Council of Ministers of which the Chief Minister is the head. It has also been judicially held that Ministers are officers subordinate to the Governor. Article 163 of our Constitution read with Article 166 has also made the position absolutely clear when it says that the Council of Ministers are to aid and advise the Governor in exercise of his functions except in so far as he is by and under the Constitution required to exercise his functions or any of them in his discretion and unless a particular Article expressly provides so. An obligation of the Governor to act in his discretion cannot however be inferred by implication.
As said earlier there are a very few constitutional provisions which require a Governor to act in his discretion. In addition, a Governor has certain responsibilities which he has to discharge according to the directions issued by the President and in those circumstances he does not have any need to be advised by the Council of Ministers. While exercising these powers there is hardly any room for confrontation as the areas are distinct and have no relation with the executive powers of the Government of the State of which he is the Governor. Our constitution envisages a parliamentary system of Government meaning thereby that a Governor is not to exercise any function personally. Executive functions are allocated according to Rules of Business made under Article 166 (3).
The Supreme Court has said that a Chief Minister and a Governor must always be conscious of their constitutional obligations and not sacrifice either political responsibility or parliamentary conventions at the altar of political expediency. In S.R. Chaudhuri Vs State of Punjab, the Court had borrowed the observations of constitutionalist Prof. Nwabueze’s book “Constitutionalism in the emergent States” which says that “The successful working of any constitution depends upon what has aptly been called democratic spirit, that is, a spirit of fair play, of selfrestraint and of mutual accommodation of differing interests and opinions. There can be no constitutional government unless the wielders of power are prepared to observe the limits upon governmental powers”.
Prof. Nwabueze’s observations were preceded by his assertion that “Experience has amply demonstrated that the greatest danger to constitutional government in emergent States arises from human factor in politics, from the capacity of politicians to distort and vitiate whatever governmental forms may be devised.” We expect that neither the government nor the Governor of the State will enter into such a confrontation which will in effect vitiate the pleasant political atmosphere in the State. The Government and the Governor of any state are therefore reasonably expected to coordinate in the matter of governance of the state in a manner that the judiciary is not burdened with the responsibility of deciding avoidable occasions of dispute between them. (
The writer is Barrister-at-Law and Sr. Advocate, and former Advocate General of West Bengal.)