Explained | The Governor’s role in approving a Bill

The story so far: The Tamil Nadu Assembly has once again adopted a Bill that was earlier returned by Governor R.N. Ravi. The Bill seeks to grant exemption from the mandatory National Entrance-cum-Eligibility Test (NEET) for seats allotted by the Government in undergraduate medical and dental courses in Tamil Nadu. Last week, the Governor returned the Bill, contending that it was against the interests of rural and poor students.

What comes next?

There is no doubt that the Governor will now have to grant his assent to the Bill. Under Article 200 of the Constitution, which deals with grant of assent to Bills passed by the Assembly, the first proviso enables the Governor to return a Bill, that is not a Money Bill, with a message requesting the House, or Houses, if there is an upper chamber, to reconsider the Bill, or any provisions, and also consider introducing amendments he may recommend. The House will have to reconsider as suggested. If the Bill is passed again, with or without changes, and presented for assent, “the Governor shall not withhold assent therefrom”.

In the present case, the Bill will have to be sent to the President for his assent, as it is enacted under an entry in the Concurrent List on a subject that is covered by a central law. NEET is mandatory under Section 10D of the Indian Medical Council of India Act, an amendment introduced in 2016. Therefore, the State law can be in force only if the President grants his assent. This will cure the ‘repugnancy’ between the central and State laws.

What is the Governor’s function in passing a Bill?

Under Article 200, the Governor may (a) grant assent (b) withhold assent (c) return for reconsideration by the Legislature or (b) reserve for the consideration of the President any Bill passed by the State legislature and presented to him for assent.

There is no timeframe fixed in the Constitution for any of these functions. The Constitution makes it mandatory that the Governor should reserve for the President’s consideration if, in his opinion (a phrase that means he exercises his own discretion in this), a Bill that “so derogates from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill”. In other words, any Bill that seems to clip the wings of the High Court or undermine its functioning will not become law without the President’s assent.

What happens when the President considers the Bill?

Once again, there is no timeframe. Article 201 says when a Bill is reserved by a Governor for his consideration, “the President shall declare either that he assents to the Bill, or that he withholds assent therefrom”. He may also direct the Governor to return the Bill, if it is not a Money Bill, to the Legislature along with a message. The House or Houses will have to reconsider the Bill within a period of six months from receiving it. It may pass the Bill again with or without any change. The Bill shall again be presented to the President for his consideration. The article ends with that. This means that the Bill will become law if the assent is given, but nothing can be done if the Bill is denied assent by the President or if he makes no decision.

Does the Governor have any discretion in this regard?

Section 75 of the Government of India Act, 1935, contained the words ‘in his discretion’ while referring to the Governor’s grant of assent to Bills. The phrase was consciously omitted when Article 175 in the draft Constitution (later renumbered as the present Article 200) was enacted. Commentators generally agree that the Governor, who normally functions on the aid and advice of the Council of Ministers, is bound to go by the advice in the matter of granting assent. It may seem unusual to say the Governor should act on ministerial advice even when withholding assent and returning a Bill for reconsideration. However, a reading of the Constituent Assembly debates shows that this was indeed what the framers of the Constitution intended. It was explained on behalf of the drafting committee that there may be a situation when the Council of Ministers feels that a Bill has been hastily adopted or that it requires changes.

In such a situation, the Constitution must provide for the possibility that the Council may want to recall its Bill, and accordingly advise the Governor to return it.

While analysing the provision, the Sarkaria Commission on Union-State Relations points out that the Constitutional Adviser’s note said there could be occasions for even withholding assent on the advice of the Ministers.

For instance, if after a Bill is passed the Ministers resign before the Bill gets the Governor’s assent, the new Ministry may not want to go ahead with the Bill and might advise against assent being given. These examples suggest that no discretion was ever envisaged for the Governor in dealing with Bills.