The Tamil Nadu Assembly passed a resolution requesting the President of India to issue directions to the Governor to function within constitutional limits in response to the Governor’s recent statement implying that he would not give assent to a Bill passed by the legislature if it transgressed constitutional limits.
Who is Governor?
- Parallel to the President: The Governors of India’s states have identical powers and functions at the state level as the President of India has at the national level.
- The governor serves as the nominal head, while the real power is held by the Chief Ministers of the states and their councils of ministers.
- Governors serve in the states, while Lieutenant Governors or Administrators serve in union territories such as the National Capital Territory of Delhi.
- Non-local appointees: Few or no governors are from the state in which they are appointed.
New Developments in the Constitution
- The Assembly passing a resolution requesting the President of India to guarantee that the Governor works in accordance with the Constitution is a new constitutional development.
Which articles are relevant?
- Article 355: According to Article 355 of the Constitution, it is the Union’s responsibility to ensure that each State’s government follows the Constitution.
- R. Ambedkar on Article 355: While B.R. Ambedkar stated the overall meaning and purpose of Article 355 in the Constituent Assembly, the Constitution’s conceptions and doctrines have been interpreted and modified to meet society’s changing demands.
- 200th Article: Although Article 200 gives the Governor choices when a Bill is brought to him after it has been enacted by the legislature, withholding assent is not one of them.
- The Governor’s Discretionary Powers and the Confusion of Withholding Assent Options: Article 200 gives the Governor choices when a bill is given to him after it has been enacted by the legislature.
- There are four options: give assent; withhold assent; send it back to the Assembly for reconsideration; or transmit the Bill to the President for review.
- Idea for the Third Option: If the Assembly reconsiders the Bill at the Governor’s request under the third option, he must provide assent even if the Assembly adopts it again without accepting any of the Governor’s proposals.
- One of the following alternatives must be chosen: It stands to reason that when the Constitution affords the Governor particular options, he must choose one of them.
- Sitting on the measure goes against the Constitution: Because sitting on a measure passed by the Assembly is not an option provided by the Constitution, the Governor is simply acting against the Constitution by doing so. A judicial decision on this issue is required to clear the air.
The question of adjudication
- Is the Governor’s process of assent subject to judicial review?
- Inadmissible in court: It is not justiciable, according to D.D. Basu, who cites Supreme Court decisions.
- Purushothaman Namboothiri vs. State of Kerala (1962), for example: The court concluded in this instance that a Bill pending with the Governor does not lapse on the dissolution of the Assembly, although this decision did not address the justiciability of the assent procedure.
- Hoechst Pharmaceuticals Ltd. et al. vs. State of Bihar et al. (1983): In this case, the court addressed the Governor’s ability to reserve a Bill for the consideration of the President, and held that the court could not decide whether it was essential for the Governor to reserve the Bill for the President’s consideration.
- In a court of law, the government can appeal the Governor’s inaction: The Governor’s non-decision/indecision on a Bill passed by the Assembly is causing consternation among state governments. As a result, the government can challenge the Governor’s inaction in court, and the answer appears to be yes.
Way ahead
- Maintaining constitutional principles: State governments and the Governor’s office should collaborate to develop a mutual understanding of the constitutional provisions and procedures for assent to a bill, with a focus on expediting the process while maintaining constitutional principles.
- Avoiding confrontation and legal fights: If the state government and the Governor disagree, the subject should be handled via communication and mutual agreement rather than through confrontation and legal battles.
- Clarity on concerns of justifiability: The Supreme Court could provide clarity on the issue of justiciability of the Governor’s involvement in assenting to a measure while bearing in mind constitutional provisions and federalism principles.
- The Governor’s discretionary powers should be exercised judiciously and in accordance with constitutional principles, without delaying or withholding assent to a law for no justifiable cause.
- Transparent and consultative mechanism: The state administration should guarantee that bills are passed in a transparent and consultative manner, and the Governor should take into account all stakeholders’ views and opinions before using his discretion.
- Establishing cooperative federalism: A greater emphasis should be placed on establishing cooperative federalism, in which the Centre, states, and governors collaborate and cooperate while protecting the Constitution and the rights of all citizens.
@the end
The founders of the Constitution could never have envisaged that Governors would sit on Bills indefinitely without utilising any of the alternatives provided in Article 200. This is a new development that necessitates new answers within the framework of the Constitution. As a result, it is up to the Supreme Court to set an appropriate time frame for Governors to rule on a Bill enacted by the Assembly in the wider interest of federalism in the country.
Source: https://www.legalserviceindia.com/legal/article-2732-constitutional-position-of-the-president-and-governor-relation-with-the-council-of-ministers-.html