Governor and President’s Powers | Day 4: ‘Does the Bill die if Governor withholds assent’: SC asks Union

‘Constituent Assembly vested discretionary powers in Governor’s office’

Opening his arguments, Mehta said the Governor’s office had a distinct place in the constitutional framework and was not intended to be “an asylum for retired politicians.” He stressed that the Governor’s office was designed to have its own sanctity, separate from the Council of Ministers. The Governor was expected to act in certain situations independent of political currents within the state, he stated. 

He reminded the Bench that the Draft Constitution had originally proposed an elected Governor, but this was later changed to provide for the Governor’s appointment by the President.

CJI Gavai asked whether this constitutional vision had been realised. Mehta responded that the framers had always envisaged two power centres in the states—the elected Chief Minister and the President-appointed Governor. He quoted Dr. B.R. Ambedkar from the Constituent Assembly, where he said, “If the Governor should be a purely constitutional Governor with no power of interference in administration, then it seems to me immaterial whether he is nominated or elected.”

Mehta referred to Article 163, which states that the Governor should act on the aid and advice of the Council of Ministers. He recalled that several amendments were recommended in the Constituent Assembly, which sought to remove all discretionary powers of the Governor. These amendments were rejected, with Ambedkar assuring that “the retention in or the vesting the Governor with certain discretionary powers is in no sense a negation of responsible government.”

Justice Narasimha observed that despite these assurances, Governors’ discretionary actions had often become a source of litigation. CJI Gavai remarked, “We have some experience how some Governors have exercised discretion, leading to litigations.”

Mehta answered that the existence of disputes did not mean the discretion was illegitimate. He submitted, “Indian democracy is a mature democracy,” and added that “hard cases always lead to bad law.”

‘Framers adopted the colonial model’

Mehta then turned to Article 200. He traced its lineage to Section 75 of the Government of India Act, 1935. This gave Provincial Governors four clear options when presented with a Bill: assent, withhold assent, reserve the Bill for the Governor-General or return it for reconsideration. He submitted that the framers had conspicuously adopted this colonial model. He stated that once a Bill was returned and passed again, the Governor “shall not withhold assent.” According to him, this made it evident that initial withholding was an absolute veto. “Withhold means the Bill falls through,” Mehta said.

CJI Gavai immediately asked, “So, if the Governor withholds, the Bill dies? Are we not giving total powers to the Governor, leaving a government elected by majority at the whims of the Governor?”

Justice Narasimha commented, “Such an interpretation is counter-productive to the legislative process.” Justice Nath inquired whether the Constituent Assembly had ever specifically debated the phrase “withhold.” Mehta admitted that there was no such debate but insisted that the framers had deliberately borrowed the phrase from colonial law.

‘Precedents endorse Governor’s discretion’

Mehta argued that the option of withholding assent was an independent power under the Constitution. He argued that the power to grant or withhold assent could not be judicially curtailed. He relied on State of Bihar v Kameshwar Singh (1952),  where a five-judge Bench noted that a Bill can become a law either by the Governor’s assent, or if reserved, through the President’s assent. Kameshwar Singh had also held that a Bill cannot be reserved after assent has been granted. 

Next, he cited Union of India v Valluri Basavaiah Chaudhary (1979), where a five-Judge Bench reiterated that Article 200 provides three clear options together with the recommendatory power to return a Bill. He stated that the Judgment described the Governor as a component of the State Legislature. In that case, the Court rejected a challenge against a legislation based on the manner in which assent had been given to it. Mehta argued that the Governor’s discretion to assent to or withhold bills was a constitutional prerogative that the Court had recognised as being beyond judicial scrutiny.

He referred to B.K. Pavitra v Union of India (2019), where the Court, while considering the validity of Karnataka’s law on reservations in promotions, affirmed that the discretion to reserve or assent to a Bill is a constitutional choice entrusted to the Governor. The Judgement noted that once assent is given, the Bill attains the status of law. Mehta submitted that this recognition reinforced his argument that the decision to assent or withhold is a constitutional act vested in the Governor.

Mehta strongly criticised the recent Tamil Nadu Governor ruling. He submitted that the Division Bench had read down the expression “withhold” by holding that it had to be exercised only in conjunction with the proviso permitting reconsideration. In simple terms, the Judgement held that any withheld bill had to be mandatorily sent back to the legislative assembly for reconsideration. In his view, this effectively removed the possibility of an absolute veto. He called the ruling per incuriam for having disregarded earlier Constitution Bench judgements such as Kameshwar Singh, Valluri Basavaiah, Punjab Governor and B.K. Pavitra.

Justice Narasimha observed that the issue before the Court presented two competing readings, one treating withholding as a permanent veto and the other viewing it as qualified by the proviso, which prescribes reconsideration.

Justice Kant asked, “If we talk about wide powers of the Governor, why curtail it? How do we read the curtailment?”

The CJI said, “According to him [Mehta], withholding and exercising power under the proviso are two different things.”

At this stage, Senior Advocate Kapil Sibal intervened to ask, “If Parliament passes a Bill and the President withholds assent under Article 111, does the Bill fall through? How can this be applied as a constitutional principle?”

Governor can exercise absolute veto in rare instances

Addressing concerns of arbitrariness, Mehta argued that withholding assent was expected to be exercised only in rare situations. He said it was not a power to be used against routine bills, but in exceptional cases where a proposed law threatened the constitutional framework. He gave illustrations such as a Bill abolishing reservations, imposing restrictions on language, excluding outsiders from residence or limiting voting rights on grounds such as sex or race. In such circumstances, he said the Governor would be duty-bound to withhold assent.

“Unless this is read, the Governor’s office will become a postman,” Mehta said.

He submitted that Governors generally act responsibly, often after consulting Chief Ministers, and are bound by their oath to preserve, protect, and defend the Constitution. He urged the Court, “Let us not give an interpretation which kills the power.”

The Court explored the relationship between Articles 200 and 201, which deal with the assent of Governors and the President, respectively. Justice Narasimha pointed out that Article 201 prescribes a six-month time limit for the House to act once the President returns the bill. However, Article 200 has no such limit. Mehta argued that reading in a time limit where the Constitution had provided none would amount to judicial amendment.

Justice Kant asked, “’Shall declare’ means declaration is not empty. How then will we exercise judicial review if he withholds?”

Justice Narasimha added that foreclosing reconsideration entirely might frustrate democracy. Justice Nath said, “The procedure to be followed is Article 200…the Governor can assent, withhold assent, or reserve the Bill. Unless the proviso is invoked, withholding means the Bill falls through.”

Supporting Mehta, Senior Advocate N.K. Kaul submitted that the history of the provision showed that the ability to return a bill was always intended to exist alongside withholding. The fact that it was placed in the proviso did not mean the withholding power was conditioned by it. Both were considered as separate options, he argued. 

Mehta said that constitutional interpretation could not be guided by apprehensions of misuse. The power to withhold assent, he argued, was deliberately included by the framers and had been consistently recognised by precedent. “If this is unwise, the remedy lies in amendment by Parliament, not interpretation by the Court,” he submitted. 

Mehta will continue arguments tomorrow.