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Synopsis

The Supreme Court has held that if the Governor decides to withhold assent to a Bill, he has to remit it to the Assembly "as soon as possible" for reconsideration as per the first proviso in Article 200 of the Constitution, saying that the power can't be used to thwart the normal course of law making.

"The proviso to Article 200 envisages that, as soon as possible, after the presentation to the Governor of the Bill for assent he may return a Bill, which is not a Money Bill, together with a message requesting that the House or Houses would reconsider the Bill or any specific provisions of the Bill and in particular consider the desirability of introducing such amendments which he may recommend," a bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said.

The court pointed out that when a Bill is returned by the Governor, the legislature of the State is duty bound to reconsider the Bill.

"After the Bill is again passed by the legislature either with or without amendment and is presented to the Governor for assent, the Governor shall not withhold assent therefrom," the bench said.

The court said that on presentation of the Bill, the Governor has three options available when a Bill which has been passed by the State Legislature is presented for assent. 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.

The court released its November 10 order on a writ petition filed by the Punjab government on detaining the four Bills passed by the Assembly on June 20, 2023. The judgment is likely to have a significant impact on pending pleas filed by Tamil Nadu and Kerala governments against the Governor's inaction on Bills sent for assent.

The court emphasised, "The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. 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 also said that the Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. 

"However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration," the bench said. 

In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. 

"If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance," the bench said. 

Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso, it said. 

"The Governor is under Article 168 a part of the legislature and is bound by the constitutional regime," the bench said.

Case Title: State of Punjab Vs Principal Secretary to the Governor of Punjab and Another