Read Time: 18 minutes

Synopsis

The Supreme Court has said that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency and it is not open for the Governor to reserve a Bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso. 

Acting on a writ petition filed by the Tamil Nadu state government, a bench of Justices J B Pardiwala and R Mahadevan held the reservation by the Governor of the 10 Bills for the consideration of the President in November 2023 in the second round illegal, erroneous in law and thus liable to be set aside.

As a result, any subsequent action taken upon the said Bills by the President also does not survive and is thus set aside, court ordered. 

"Despite there being no prescribed time-limit, Article 200 cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State. The use of the expression 'as soon as possible' in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent," the bench said.  

Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the court laid down the timeline.

The bench said in case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith, subject to a maximum period of one-month.

In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months, it said.

In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months; in case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month, the bench said.      

The court declared the view taken in B.K. Pavitra Vs Union of India (2019) to be per incuriam to the extent of the following two observations made therein – First, that the Constitution confers discretion upon the Governor insofar as the reservation of bills for the consideration of the President is concerned and; Secondly, that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny. 

It held under Article 200 of the Constitution, the Governor does not possess any discretion in the exercise of his functions and has to mandatorily abide by the advice tendered to him by the Council of Ministers. 

The only exceptions to this general rule are as follows: (i) Where the bill is of a description as provided under the second proviso to Article 200; (ii) Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law; (iii) Where the bill is of a nature that if allowed to take effect then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril, the bench said.

The court said there is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of his functions under Article 201. The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill. 

"The constitutional scheme does not, in any manner, provide that a constitutional authority can exercise its powers under the Constitution arbitrarily. This necessarily implies that the withholding of assent under Article 201 is to be accompanied by the furnishing of reasons for such withholding," the bench said.

The position of law is settled that even where no time limit is prescribed for the exercise of any power under a statute, it should be exercised within a reasonable time. The exercise of powers by the President under Article 201 cannot be said to be immune to this general principle of law, the court emphasised.

Keeping in mind the expedient nature of the provision and having regard to the reports of Sarkaria and Puncchi Commissions, as well as the Memorandum dated February 4, 2016, issued by the Ministry of Home Affairs, the bench said, "We prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received. In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State".   

The court also held that the observations made by the Supreme Court in Hoechst Pharmaceuticals that the assent of the President is non-justiciable, cannot be stretched to mean that as a general rule, the exercise of powers by the Governor under Article 200 in his discretion would also be immune from judicial review.

"While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards," the court held.   

Reservation of a bill on grounds such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set aside forthwith on that ground alone, the bench said.   

The court finally held the reservation of the ten Bills which were the subject matter of challenge in the present petition by the Governor for the consideration of the President on November 28, 2023, after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 was erroneous in law, non-est and thus, it set it aside.  

The bench in exercise of inherent powers under Article 142 of the Constitution declared these 10 Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on November 18, 2023.  

"We are in no way undermining the office of the Governor. All we say is that the Governor must act with due deference to the settled conventions of parliamentary democracy; respecting the will of the people being expressed through the legislature as-well as the elected government responsible to the people. He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes," the bench said.

The court further said, in times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, and wisdom and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be impelled keeping in mind the dignity of the high constitutional office that he occupies. 

Any action contrary to the express choice of the people, in other words, the State legislature would be a renege of his constitutional oath, the bench said.

The court said the constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers. 

"When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built," the bench said.

Case Title: The State of Tamil Nadu Vs The Governor of Tamil Nadu & Anr