None too soon: On Governor’s and the judiciary’s reminder on Bills

Delay in conveying decision on assent to Bills is constitutionally impermissible

Updated - April 29, 2023 01:02 am IST

Published - April 29, 2023 12:20 am IST

The Supreme Court has given a timely reminder to Governors that the Constitution expects that a decision to return a Bill to the State Assembly for reconsideration should be made “as soon as possible”. It has drawn attention to the phrase found in the first proviso to Article 200, seeking to convey a sense of immediacy in the matter of returning a Bill. “The expression ‘as soon as possible’ contains significant constitutional content and must be borne in mind by constitutional authorities,” the Court observed. This effectively means it would be constitutionally impermissible for Governors to hold on to Bills indefinitely without communicating their decision to the House. The Telangana Governor, Dr. Tamilisai Soundararajan, against whose apparent inaction on several Bills the State had approached the Court, communicated to the Court that no Bills were pending with her, and that she had returned two Bills for reconsideration, while seeking further information from the government on a few others. Based on this, the Court disposed of the petition, but kept open questions that arose from the issue for consideration in an appropriate case. The Court’s observation addresses the issue of delay, but it is only one aspect of the controversy. The issue of granting assent is seen in most parliamentary democracies as a formality, but the peculiar discretionary powers with which Governors are clothed in India have given much scope for controversy.

The Governor’s power to withhold assent or return a Bill, with a message, for reconsideration is seen as discretionary. In the Constituent Assembly, it was explicitly clarified that returning a Bill was to be done only on advice, and that it was an enabling provision for a government to recall a pending Bill in case it had second thoughts on its advisability. There are three clear problems associated with Article 200, which deals with assent to Bills: the absence of a time limit for acting on Bills, the scope for reserving a Bill for the President’s consideration against the express advice of the Cabinet and the claim that the Governor can kill any Bill by declining assent. The mischief lies in Article 163, which hedges the primary rule that the Governors function on the ‘aid and advice’ of the Cabinet, with a clause that prohibits any inquiry into whether a particular matter fell within their discretion or not. These provisions give abundant scope for conflict between the government and Raj Bhavan. There is no doubt that these ought to be changed, either by amending the Constitution or through an appropriate Supreme Court verdict, so that misuse of gubernatorial discretion can be kept in check.

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