Governor and President’s Powers | Day 10: Timelines set by Court in TN case valid, states opposing Reference argue

State executive cannot be severed from the will of the people

All contending states agreed that the Governor is bound by the aid and advice of the state’s council of ministers under Article 163. Subramanium explained that the state executive emerges from the state legislature to ensure that the governance of the state is not severed from the popular will of the people. To buttress his point, he relied on State of Gujarat v R.A. Mehta (2013), arguing that the Governor’s duty to abide by the aid and advice of the Council of Ministers extends to matters concerning the grant of pardon, assent to bills, withholding assent, the power to promulgate ordinances and send messages to the legislature. 

CJI Gavai questioned whether the Governor is bound to act on ministerial advice under Section 197 of the Code of Criminal Procedure, 1973. The provision empowers the Governor to prosecute public servants. Subramanium replied that the Governor enjoys discretion in this matter because the provision is statutory and not constitutional. For constitutional obligations, he said, the Governor has discretion when the Constitution expressly mentions it. He referred to Nabam Rebia v Deputy Speaker (2016) to argue that a Governor cannot establish dominance over the state executive or the legislature. “He is intended to act in the interest of the state,” Subramanium stated. He warned that the Union’s stance that the Governor has an absolute veto could make “state elections futile.”

States clash on options available to Governor under Article 200 

Subramanium argued that any words relating to the “discretion” of the Governor existed under the Government of India Act, 1919 and 1935. However, they were intentionally omitted from the Constitution. Reddy added some historical context. He explained that before independence, the Congress party had refused to come into power in some states until the British government assured that the Governor-General would not interfere with the functioning of the Government. When the Constitution was being framed post-independence, the discretionary powers of the Governor were made ineffective.

For this reason, Subramanium reiterated that under Article 200, the Governor has only three options: grant assent; withhold assent; or reserve it for the President’s consideration. The decision to withhold assent, he submitted, must be followed by returning the bill to the legislature for reconsideration. He described the Union’s argument—that a Governor can withhold assent without any communication—as an “erroneous” submission. 

Subramanium further pointed out that the concept of a bill “falling through” is at the discretion of the legislature, not the Governor. If the legislature chooses not to re-pass a bill that was withheld by the Governor, only then does it “fall through.” However, if the assembly re-passes it, the Governor is obligated to give assent to the bill. Subramanium stated that this was rightly affirmed by the Court in the recent Tamil Nadu case and State of Punjab v Principal Secretary to the Governor (2023). 

Venugopal (for Kerala), on the other hand, argued that a Governor has five options when a bill is presented: 

1. Refer it to the President;
2. Treat it as a Money Bill;
3. Grant assent
4. Refer the bill back to the legislature or 
5. Withhold assent. 

CJI Gavai remarked that this argument would favour the Union’s position. Venugopal conceded but clarified that the Council of Ministers can advise the Governor to grant assent, to which the Governor must abide. Withholding assent would engage the Governor and the legislature in a discussion. He added that if a bill is withheld, it must be with appropriate reasons that would be open to judicial review. However, bills passed by a state cannot be “thwarted.” 

According to Venugopal, the Governor’s role is “intimate” and an important part of the law-making process. In this process, the aid and advice of the Council under Article 163 is a proactive tool to get assent if the discussions do not materialise. 

Datar (for Punjab), agreed with Subramanium that a Governor has only three options under Article 200. He added that it would be “paradoxical” to claim that a Governor can withhold assent without sending an explanation to the legislature. If a Governor refers a bill back to the legislature, he is then bound to assent to it, regardless of any amendments made. He illustrated this using the Maratha Reservation issue: if the Maharashtra Government passes a law that breaches the 50 percent ceiling limit set in Indra Sawhney v Union of India (1992), the Governor may raise that issue. However, if it is re-passed by the legislature, he has no option but to assent to the bill even if it is contrary to established law.

Timelines strengthen the immediate nature of Article 200 

Subramanium stressed that the phrase “as soon as possible” in the Constitution attaches a sense of immediacy to a Governor’s duty to communicate his decision. He clarified that the timelines prescribed in the Tamil Nadu Governor Judgement were not for the Governor or President, but rather indicated when judicial review would become available for a state. He pointed out that the Judgement does not state that the expiry of this timeline would result in automatic assent. He added that other jurisdictions like Singapore and the United States have automatic assent systems.

Datar, too, pointed out that the Constituent Assembly had initially intended to impose a six-week limit before replacing it with the phrase “as soon as possible.” He explained that this phrase is not a fixed period and is dependent on the nature of the bills, as some require more deliberation than others. He also reminded the Court that it has established timelines in the past where necessary. He pointed out that other concepts such as the “basic structure doctrine” were established by the Court through judicial precedents. Therefore, timelines within which a Governor must act could be set to establish “constitutional congruence” and ensure the effective functioning of a state.

Justice Narasimha interjected, pointing out that the inclusion of timelines has raised concerns about the Court monitoring the legislative process. Datar responded that the phrase “as soon as possible” meant a bill cannot be withheld indefinitely and judicial intervention was needed, if required. 

 Inappropriate to revisit a judgement via Presidential Reference 

Datar argued that the timelines set in the Tamil Nadu Governor Judgement did not warrant a Presidential Reference. According to him, a question of law referred by the President under Article 143(1) should not evaluate the correctness of a Supreme Court judgement. To address any concerns, Parliament could have used its power under Article 368 to amend Article 200 and drop the phrase “as soon as possible,” thereby negating the effect of the Judgement. He pointed out that this was done when Parliament removed the mandate that the 50 percent rule would not apply to reservations for promotions under Article 16(4A)

He argued that the Presidential Reference, in this instance, resulted in an intra-court appeal against the Tamil Nadu Governor Judgement. This was also “problematic” in the past when the Court’s advisory opinion was invoked in the 2G case to address the correctness of another judgement. He concluded by asserting that Article 143 could not bypass Article 368.

Reddy will continue the arguments on behalf of Telangana tomorrow, 10 September.