Constitutional silences, unconstitutional inaction

One of the ‘silences’ in the Constitution is in Article 200, which has been used by some Governors to obfuscate the mandate of democratically elected governments

December 26, 2022 12:16 am | Updated 09:51 am IST

‘The Governor’s duty is only to ensure that an elected government is working within the parameters of the Constitution’

‘The Governor’s duty is only to ensure that an elected government is working within the parameters of the Constitution’ | Photo Credit: The Hindu

When the Constitution was adopted by the Constituent Assembly, the founders left deliberate gaps in it to enable a future Parliament to modify and amend the Constitution that was in accordance with the aspirations and the will of the people. This ostensibly gave birth to a Constitution with glaring misses.

One of the silences in the Constitution is in Article 200 which does not prescribe a timeline for the Governor to provide assent to Bills sent by the Legislative Assembly. This has been used to advantage by the Governors of various Opposition-ruled States to obfuscate the mandate of democratically elected governments. The examples range from the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Bill, 2022 (passed by the Tamil Nadu Assembly) to the Kerala Lok Ayukta (Amendment) Bill, 2022 (passed by the Kerala Assembly). In Tamil Nadu alone, almost 20 Bills are awaiting assent by the Governor. The situation is no different in Telangana and West Bengal as well. Can the Governor just sit on Bills endlessly?

Constitutional scheme

When the draft of Article 200 was discussed in the Constituent Assembly, Prof. Shibban Lal Saxena rightly highlighted how there is no time limit prescribed for the Governor to act. In Purushothaman Nambudiri vs State of Kerala (1962), a Constitution Bench of the Supreme Court clarified that the Constitution does not impose any time limit within which the Governor should provide assent to Bills. Interestingly, the question as to whether the Governor can sit on Bills indefinitely did not arise before the Court; the Court too had no occasion to provide an authoritative ruling on it. However, the Court has maintained that the Governor must honour the will of the Legislature and that the President or a Governor can act only in harmony with their Council of Ministers. When a Governor, a central government-appointee, withholds assent to a law validly passed by the Legislature, he is undoing the will of the Legislature through unconstitutional devices, thereby directly attacking the federal edifice of the Constitution. Causing delay to assent Bills will be an arbitrary exercise, which in itself is constitutionally abhorrent.

The additional issue of the President not acting swiftly to grant assent to the Bills reserved by the Governor for the consideration of the President cannot be missed. The President has not yet acted on the National Eligibility cum Entrance Test (NEET)-exemption Bill passed by the Tamil Nadu Assembly, after it was referred to the President in May 2022. There is no timeline prescribed for even the President, under Article 201 of the Constitution, to decide on the outcome of the Bill. Even as there is no timeline for the President to grant assent, there is a timeline of six months applicable to the State Assembly to reconsider the Bill if the President decides to refer it back to the House.

Call for reforms

In a consultation paper, the ‘Institution of Governor under the Constitution’, the Justice B.P. Jeevan Reddy-led Committee states that if the Governor withholds assent to a Bill indefinitely, “such a course will not be conducive with the decorous regard a Governor is expected to the rules of the Constitutional game....”. The ‘National Commission to Review the Working of the Constitution’ that was set up by the A.B. Vajpayee government in 2000 recommended that “there should be a time-limit — say a period of six months — within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President.” It is also important to understand the real objective behind Article 200 requiring the Governor to grant assent to Bills. It was felt that an independent Governor would be necessary to act as a check and balance, to avoid the state-enacted law being repugnant to the Union laws. Some State governments expressed an opinion before the Sarkaria Commission that a “Governor will act as a safety-valve against hasty legislations and by their operation enable the State Government and Legislature to have a second look at it”.

The Sarkaria Commission went to the extent of suggesting a cure to the terminal illness plaguing the federal ecosystem of the country. It was suggested that delay from the side of the Governor in granting assent can be avoided by streamlining the existing procedures; by making prior consultation with the Governor at the stage of the drafting of the Bill itself, and by prescribing time-limits for its disposal.

Delay thwarts reasonableness

In the realm of administrative law, unreasonable delay in granting administrative sanction would be violative of the rule of law. Therefore, it implies that the Governor will have to grant assent or decline the same within a ‘reasonable time’. ‘Reasonable time’ is what is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In Keisham Meghachandra Singh vs The Hon’ble Speaker, Manipur Legislative Assembly (2020), a case on anti-defection law, the Supreme Court held that the Speaker must act on disqualification petitions against the defecting MLAs within a ‘reasonable time’. It clarified in the same judgment that reasonable time is three months in the case of disqualification petitions.

The concept that the Queen reigns, but the Ministers rule is the bedrock of the Westminster system. The Governor’s duty is only to ensure that an elected government is working within the parameters of the Constitution. It does not mean that the Governor can sit on the Bills indefinitely, merely because there is no time limit prescribed for the Governor to decide on the bills. The Constitution should be read contextually to provide a meaning that the Governor must act on the Bills within a reasonable time, say three months. The constitutional silences should not give way for unconstitutional inaction, leaving space for anarchy in the rule of law. As Justice V.R. Krishna Iyer put it pithily in Shamsher Singh and Anr. vs State Of Punjab, “may be, our founding fathers were not political prophets who could foresee glaring abuses or perverted developments”.

Mukund P. Unny is an Advocate on Record in the Supreme Court of India

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