A Bill passed by the State Assembly becomes law only after it is assented to by the Governor. The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent. In all democratic countries, similar provision exists in their constitutions. It may look a bit strange that the law-making body does not have the final say in the process of law making and the Bill it passes gets transformed into law only when the Governor assents to it. Thus, the Governor’s assent becomes the most crucial act in the whole law-making process.
The examples of Kerala and Tamil Nadu
But the Governor’s assent has, of late, become a controversial issue in at least two States — Kerala and Tamil Nadu. In Tamil Nadu, the Governor forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay. In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent. Therefore, the question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
Article 200 of the Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly. He may give assent or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it. This provision contained in Article 200 (proviso) unambiguously affirms the primacy of the legislature in the legislative exercise. The third option is to reserve the Bill for the consideration of the President. The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President. The fourth option, of course, is to withhold the assent. But it is not normally done by any Governor because it would be an extremely unpopular action. The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution. The fact that the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill shows that this power should be exercised by the Governor extremely sparingly and after very careful consideration of the consequences of such action.
In this context it would be useful to examine the practice in the United Kingdom. There too royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter. By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional. In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.
The lesson to be drawn from these practices is that refusal of assent is a practice which is not followed in other democratic countries. And in some contexts, it is unconstitutional or the Constitution itself provides a remedy so that the Bill passed by the legislature could become law even after the refusal of assent.
The Indian Constitution, however, does not provide any such remedy. The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.
Issue of challenge
In this context, a legitimate question that arises is whether the government of a State can challenge the refusal of assent by the Governor in a court of law. Article 361 of the Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings. It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill. It may be noted that the Governor while declaring that he withholds assent will have to disclose the reason for such refusal. Being a high constitutional authority, the Governor cannot act in an arbitrary manner and, therefore, will have to give reasons for refusing to give assent. If the grounds for refusal disclose mala fide or extraneous considerations or ultra vires, the Governor’s action of refusal could be struck down as unconstitutional. This point has been settled by a Constitution bench of the Supreme Court in Rameshwar Prasad and Ors. vs Union Of India and Anr. The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.
Of course, the court will not be able to direct the Governor to act in a particular way. Invalidation of the refusal to give assent to a Bill on the ground of mala fide, etc. leaves such other options to him to exercise — as mentioned in Article 200.
It is claimed that since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law making by the legislatures. Not fixing any time line does not and cannot mean that the Governor can indefinitely sit on the Bill that has been passed by an Assembly. Article 200 does not contain such an option. The Governor is required to exercise one of the options mentioned in that Article. We must understand the purpose of giving options is for the authorities to exercise one of them and not to do something which is not an option at all. All constitutional authorities are required to act in a reasonable manner. Unreasonable acts are unsustainable in law.
P.D.T. Achary is former Secretary General, Lok Sabha