In a landmark verdict, the Supreme Court recently prescribed a timeline within which a Governor must act on the bills presented to him by the state legislatures, ruling that failure to adhere to this timeline would be subject to judicial review by the courts.

Article 200 of the Constitution explains the course of action the Governor is required to take when a bill, passed by a state legislature is presented to him for assent.

The bench of Justices JB Pardiwala and R Mahadevan observed that though no time-limit has been prescribed under Article 200, the provision cannot be read in a manner which allows the Governor to not take action when the bills are presented to him for assent. This would result in delay and would essentially roadblock the law-making machinery in the state.

"The prescription of a time-limit is with a view to ensure that the Governor is not conferred with the power of exercising a pocket veto under the scheme of Article 200, and hinder the law-making process in the State without the existence of any reasonable grounds," it added.

Such an approach also ensures that state governments are not left remediless in cases of malicious, arbitrary or capricious exercise of power by the Governor under Article 200, the Court further said.

Accordingly, the Court in the judgment dated April 8 prescribed the following timeline:

1. In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such action forthwith, subject to a maximum period of one month;

2. In case of withholding of assent, contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months.

3. In case of reservation of bills for the consideration of the President, contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months.

4. In case of presentation of bill after reconsideration, in accordance with the first proviso, the Governor must grant assent forthwith subject to a maximum period of one month.

Pertinently, the timelines have been prescribed while taking guidance from those suggested by the Sarkaria and the Punchhi Commissions, constituted in 1988 and 2007 respectively to examine Centre-State relations.

Why the timeline directions don't amount to judicial overreach

The Court in its judgment was cognizant of the fact that the prescription of timelines for the Governor's exercise of power under Article 200 may be viewed as the Court adding something which is not expressly mentioned in the Constitution. However, the judges explained why it believed otherwise.

"It is crucial to understand that the prescription of a general time-limit by this Court within which the ordinary exercise of power by the Governor under Article 200 must take place, is not the same thing as amending the text of the Constitution to read in a time-limit, thereby fundamentally changing the procedure and mechanism of Article 200," the Bench emphasised.

The Court went on to give following reasoning for its decision:

1. Reading such a time-limit into the provision neither militates against the underlying object of the said provision nor does it alter the procedure that is envisaged therein.

2. It only reinforces the sense of expediency and urgency that has been time and again emphasised since the adoption of the Constitution.

3. The time-limit being prescribed cannot be understood to be a hanging sword on the Governor when even an unavoidable non-compliance would automatically ensue consequences of ‘assent’. 

The Court also said that it is not unusual for it to prescribe time-limits for the discharge of certain functions, even in cases where no specific time-limit has been prescribed.

"The prescription of timelines by us balances the objective of expediency as well as the desirability of having some flexibility in cases of existence of an impossibility in discharge of functions in an expeditious manner. Flexibility in the discharge of a function cannot be allowed to be stretched to an extent that renders the very object underlying such function otiose, resulting into the proverbial snapping of the constitutional machinery," it stressed.

Timelines will serve as lodestar for exercise of judicial review

Further, the Court said that such timelines would only guide the courts in exercising judicial review.

"Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers."

The Court also cited examples of laws in the United States and Pakistan to emphasise that its prescription of timelines does not amount to altering Article 200.

"The reason why these time-lines do not immolate the very fabric of Article 200 is because the said provision even with the infusion of these time-limit still remains markedly different from its counterpart provisions where such time-limits are legislatively prescribed. For instance, Article 75 of the Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of the U.S. Constitution, where if no decision is taken within the stipulated time-limit by the President then the bills are deemed to have been assented to."

No deemed assent is introduced

The Court also looked at it from another perspective, stating that the prescription of a reasonable time period does not introduce a mechanism of deemed assent upon the failure of the Governor to comply with the said timeline.

It added that there is a "fine but pertinent distinction" between the time-limits that are expressly prescribed and those that are judicially evolved.

However, it clarified that there is no such consequence when a Court establishes a time limit. In the event of a judicially-developed timeline, the courts can review the action or inaction and direct a decision to be taken within a time-bound manner.

In exceptional cases, they can also deem the assent to have been granted under Article 142 of the Constitution, the Court added.

"When prescribing such a time-limit for the exercise of power under Article 200, we are guided by the inherent expedient nature of the procedure prescribed thereunder and the well-settled legal principle that where no time-limit for the exercise of a power is prescribed, it should be exercised within a reasonable period," it further said.

Governor can justify delay

The Court further said that the reading in of an absolute time-limit would have left the Governor with no choice but to comply with it. However, it explained that the prescription of judicially evolved time-limits leaves it open for the Governor to justify the delay caused by providing reasonable grounds.

"Delay caused by the Governor beyond the prescribed time-limits would be justiciable and the courts, with deference to applicable judicial principles, would be fully competent to ascertain whether the delayed exercise of power by the Governor under Article 200 was based on any reasonable grounds or not," the judgment said.

Governor's reluctance or lethargy will affect governance

The Court further reasoned that an elected government gets the mandate of the people for a limited period of five years, within which it is expected to legislate on issues pertaining to the electorate.

If the Governor, for whatsoever reasons, exhibits reluctance or lethargy in decision-making, particularly when it is concerned with the assent to bills, it severely impacts the ability of the government to act upon its mandate and deliver to the people who brought them into power, the Court added.

"Any obstacle created by the Governor, whether advertently or inadvertently, severely impacts the perception of the elected government in the subsequent elections and thereby also negatively affecting their chances of coming back into power."

It also highlighted that this problem is further exacerbated when the political party in power in the State is different from the one at the Centre.

The Court went on to emphasise that the Governor should be more cautious and non-partisan in the exercise of his functions in such a scenario.

"Any deliberate inaction on part of the Governor in assenting to bills or reserving them for the consideration of the President, thus, has to be viewed as a serious threat to the federal polity of the country and the aggrieved governments cannot be left remediless, desperately waiting for a decision at the hands of the Governor."

[Read Judgment]