Governor and President’s Powers | Day 6: SC questions if an expansive reading of ‘withholding powers’ could stall money bills

Kaul: Governor’s discretion under Article 200 is sui generis

Kaul, appearing for the state of Madhya Pradesh, resumed his arguments from last week. He reiterated that the Governor had three powers under Article 200:

1. to grant assent
2. to withhold assent and 
3. to reserve the bill for the President. 

These powers, he argued, were independent and stood on a separate ground. He further recalled Dr. Ambedkar’s views that the Governor was not intended to be a political representative but rather an authority embodying the will of the state.

The Bench questioned whether the Governor can again exercise discretion after the legislature re-passes a bill. Kaul answered in the negative. He clarified that while Article 200 granted the Governor discretionary powers, its proviso did not permit him to withhold assent to bills that were re-passed by the House. He then submitted that judicial review, though implicit in every provision, does not apply where no judicially manageable standards exist. This renders certain actions non-justiciable.  

Kaul then contended that the Governor’s discretion under Article 200 is sui generis and cannot be equated with the failure of constitutional machinery under Article 356. Kaul added that some discretions involve state interests, intergovernmental relations, public considerations, and constitutional conventions rather than fixed rules, and therefore cannot be equated with the power under Article 356.

When CJI Gavai suggested that if Article 356 is subject to review, Article 200 discretion should be as well, Kaul replied that assent decisions involve complex constitutional considerations and have consistently been treated as non-justiciable.

Kaul argued that only Parliament had the power to address the egregious misuse of power, not the judiciary. Referring to the Tamil Nadu Governor judgement, he contended that the Court’s use of discretionary powers under Article 142 to impose timelines on the Governor was an “impermissible judicial reallocation of constitutional functions from a high plenary constitutional authority, the Governor or the President, to the Supreme Court.”

Salve: Withholding assent is a constitutional act

Salve appeared for the state of Maharashtra. He stressed that the issue must not be seen through preconceived notions of federalism, but be defined by the Constitution itself. He submitted that the framers had consciously designed a system where the Union can refuse a bill passed by the state legislature under Article 201.

Salve submitted that while the Governor’s power can be defined, the right to withhold assent cannot be subjected to judicial review. The scope to review high discretionary powers vested in a constitutional authority, he said, was very limited. Referring to Kaiser-I-Hind v National Textile Corporation (2002), he said the Court could only ascertain whether assent has been granted, not to examine the reasons.

Justice P.S. Narasimha noted that the Union’s stance was that the Governor’s power to withhold assent operates as an independent option, but cautioned that “if withholding is treated as an adjunct to the second option, that is problematic.”

He warned that if “withholding” were read as a separate option, it would allow even Money Bills to be withheld indefinitely. Salve responded that this was possible. 

Maninder Singh: Withholding power is controlled by the proviso 

Singh, appearing for Rajasthan, argued that the Governor’s discretion to withhold assent exists at the stage of first presentation of a bill. The proviso to Article 200 is triggered only when the bill is re-presented to the Governor by the House. 

He explained that while the first stage expanded the Governor’s powers, the second stage created a negative obligation that he cannot withhold assent once the House re-passes the bill. 

Other states in Favour of the Reference

ASG K.M. Nataraj, appearing for Orissa, submitted that the Governor and President enjoy absolute functional autonomy before granting assent. Therefore, the Court could not impose timelines or create a doctrine of deemed assent. He relied on S.R. Bommai v Union of India (1994) to stress that courts could not fill perceived gaps in the Constitution through judicial interpretation. He also relied on Kihoto Hollohan v Zachillhu (1992), where the Court held that judicial review could not interfere before a Speaker’s decision under the Tenth Schedule. Similarly, he argued, courts should not step in before the Governor decides on assent.

ASG Vikramjit Banerjee, appearing for Goa, contended that deemed assent has no place in the Constitution. Relying on Shamsher Singh, he reiterated that while the Governor is ordinarily bound by ministerial advice, he retains certain areas of discretion under the Constitution, including Article 200.

Jethmalani, appearing for Chhattisgarh, argued that the proviso to Article 200 cannot be read as limiting the Governor’s power to withhold assent. Further, he argued that the phrase “as soon as possible” cannot be construed as a strict timeline for a high constitutional authority.

Navare contended that political remedies, rather than judicially imposed timelines, were the appropriate means to address any delays in the grant of assent.

Guru Krishnakumar concluded the submissions in favour of reference. He argued that where the framers intended timelines, they would have expressly provided for them and that it was not for the Court to supply omissions.

Arguments against the Presidential Reference will commence on 28 August.