Governor has no veto over bills: Gopal Subramanium for Karnataka, KKV for Kerala tell Supreme Court

The Kerala government on Tuesday argued before the Supreme Court that the Council of Ministers of a State can compel the Governor of the State to grant assent to a bill if he chooses to withhold it despite discussions.

The submission was made before the Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar which was hearing the reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution seeking clarifications with respect to the Court's April ruling which had set deadlines of Governors to act on bills passed State legislatures.

Senior Advocate KK Venugopal, representing the Kerala government, said that when there is no agreement even after discussions between the government and the Governor and the latter intends to withhold assent to a bill, the Council of Ministers can immediately advise him under Article 163 to grant assent.

"In which case, the Governor would have no choice but to grant assent under Article 163. In my view, it may not be appropriate for council of ministers to utilize Article 163 the moment the bills are passed and compel the Governor to immediately grant assent in all cases, even without discussion. To compel the Governor... is not consistent with the high position held by Governor as head of the State," he added.

Therefore, there is no question of withholding assent in any circumstances, Venugopal further said. However, if the Governor still choses to withhold assent, Venugopal said,

"If the Bill is killed, reasons have to be given. Reasons will make it open for judicial review. Governor is not there to subvert the functioning of the legislatures. On the other hand, he is very much part of the legislature. He will ensure that bills are assented to in the interest of State. He has no power to withhold assent. After discussing bills with ministers, Article 163 will be used to ask the Governor to grant assent."

Senior Advocate Gopal Subramanium, appearing for the State of Karnataka, also echoed the same and said the Governor has no veto over bills passed by the State legislature.

The Presidential reference has questioned the April 11 judgment passed by a Bench of Justices JB Pardiwala and R Mahadevan in State of Tamil Nadu v The Governor of Tamil Nadu & Anr. In that verdict, the apex court held that Governors must act within a reasonable time and that constitutional silence could not be used to stall the democratic process.

The Court held that although Article 200 does not specify any time limit, it cannot be interpreted to allow indefinite delay by the Governor in acting on bills passed by the State legislature.

With regard to the President’s powers under Article 201, the Court held that her decision-making is not beyond judicial scrutiny and must occur within three months. If there is any delay beyond that period, reasons must be recorded and communicated to the concerned State, it had said.

Following the ruling, the President referred fourteen questions to the Supreme Court, raising concern over the judgment's interpretation of Articles 200 and 201.

Among the questions referred are whether the Supreme Court can create procedural mechanisms in areas where the Constitution is silent and whether imposing time limits encroaches upon the discretionary space constitutionally granted to the President and Governors.

Arguments today

Senior Advocate Gopal Subramanium, representing the State of Karnataka, today argued that questions referred by the President are answered by the apex court's earlier judgments. He said Union government's argument that Governor has legislative power under Article 200 must be rejected.

He contended that the argument that a Governor has a veto over a bill is contrary to law and erroneous.

"On a plain reading of the proviso, any interpretation that confers upon the Governor an unqualified power of veto is antithetical to the existence of elected State legislatures under the Constitution. A Governor is only entitled to withhold assent on ministerial advice for the purpose of returning a Bill to the Houses for reconsideration. And if the Bill is passed again by the Houses, the Governor must then assent," the Senior Counsel said.

Subramanium also argued that Solicitor General Tushar Mehta's written submissions in respect of President's discretionary powers were self contrary.

"It is respectfully submitted that the submissions advanced on behalf of the Union, in respect of the powers of the President, do not accurately reflect the law as laid down by this Court in Shamsher Singh. They are also contrary to the express words of Article 74(1) of the Constitution. The President of India, who is a constitutional or formal head of the Union, must perform his functions on the aid and advice of his Council of Ministers," he added.

Subramanium also argued that it would not be correct to assume that judgment can be overruled in a presidential reference. It has to be done through normal adjudicatory process, he said.

Senior Advocate KK Venugopal, representing the State of Kerala, argued that a Governor must act on a bill forthwith.

"The reason I say it should be forthwith is because even money Bills, which are the most urgent, necessarily have to be dealt with responsibly. Even if the phrase “as soon as possible” was not there, along with the other provisions, the Governor would necessarily have to deal with money bills immediately. Non-assent in human terms would mean dependence of the State. There is no question of his having any right to withhold assent to a money bill. The Constitution itself makes that clear," he argued.

Venugopal also argued that the Governor can withhold assent to a bill. However, he later clarified that the Council of Ministers can advise him to grant assent to the bill.

"According to me, there are five choices. One, to reserve the Bills for consideration of the President, which is covered by express provisions of the Constitution... Second, to treat it as a money Bill which stands on separate footing. Third is to grant assent. Fourth is to refer the bill with message to the Legislature. And fifth is to withhold assent," he submitted.

At this stage, CJI Gavai asked whether Venugopal was supporting Solicitor General's argument on Governor's power to withhold assent. In response, the Senior Counsel said,

"To an extent, yes, because the Governor has to play a collaborative role in granting assent."

Venugopal also submitted that out of 28 States and 3 Union Territories with legislatures, 23 States have not come to Court over the issue of bills.

"Because so far as Governors are concerned, they are collaborative. There is an intimate relationship between the Governor and legislature. He is intimately part of legislature in actual sense. So far as he is concerned, how on earth can one treat the Governor as adversary. He is not an adversary. He has to go along with every single bill," he added.

In this context, he referred to a practice followed during the tenure of former Kerala Governor Arif Mohammad Khan.

The Governor would discuss the bill with the concerned minister and then take a decision, Venugopal submitted. He added that the Constitution would commend such practice.

"This is the only way in which the bills relating to grant or withholding of assent or sending it back with a message can be done... Governor would not sit in an ivory tower, get a bill and then study it by himself or retain it for a number of months to study it and then decide whether to grant or refuse," he said.

Venugopal also suggested that State itself could indicate to the Governor that a bill would be required to be sent to the President for assent.

Senior Advocate Arvind Datar, representing State of Punjab, submitted that Governor has no discretion under Article 200.

"He has only three options. His discretion is limited to choosing one of the three options," Datar said.

The acceptance of the argument that Governor can withhold assent would result in a constitutional paradox, Datar contended.

"The argument is that the Governor can withhold assent indefinitely. In my respectful submission, that cannot be correct. Assent must be read with the proviso. Withholding assent is only for the time taken to prepare a message [to send back to legislature]," he submitted.

On the time to be taken by Governor for acting on a bill, Datar said,

"They could be a simple amendment Bill which doesn’t require much time. It can be approved the very next day itself, or the same day. On the other hand, there could be a complex Bill which may involve matters falling under the Union List, or which may involve matters of parliamentary law already in place. There the Governor may need some more time. So “as soon as possible” doesn’t mean an infinite amount of time. It depends on the context of the Bill."

Datar also submitted that no Governor in the country can be a constitutional filter to deny assent to a bill or decide validity of the proposed law.

"It is a bill. I can pass a good law or bad law. I will take that risk," he added.

Datar also argued that if a timeline is felt to be necessary, Courts can impose it. He gave examples in this regard.

"The effectiveness of a law is certainty and predictability. Supreme Court has imposed timelines from time to time in statutory provisions," he added.

However, Justice Narasimha remarked that constitutional provisions are different.

"We are dragging the Court into a situation where the legislative process is getting monitored and controlled through the processes of court," the judge said.

"We are not saying that there is no requirement of expediency in legislative processes. But to fix a time limit is a risk that Court takes?," Justice Narasimha added.

In response, Datar said if “as soon as possible” were not there in Article 200 then the situation would have been different.

"Ultimately the statute says something, the Court interprets that statute. Read together, it becomes law," he said.

At this stage, Justice Nath said,

"Even if as soon as possible was not there still the Governor would be expected to act in a reasonable time."

Justice Vikram Nath further asked whether the Governor would be expected to act within 24 hours in case of emergency. In response, Datar said,

"May be. Some disaster is there. It is money bill. The Governor has to respect that mandate of the people. Your lordships can impose a timeline. If your lordships can go so far as to bring substantial due process in [Article] 21 then why not this..."

Datar also argued that the jurisdiction under Article 143 is only to answer a question of fact or law referred to this Court by the President.

"It is not to evaluate the correctness of an earlier judgement... A presidential reference in this case we are basically testing the correctness of a view taken by a bench. Indirectly you’re making an intra court appeal when there is none. You can’t do it with 143," he said.

Senior Advocate Niranjan Reddy also made submissions today and will continue on the next date of hearing.

Previous hearings

On August 19, Attorney General for India R Venkataramani questioned the Supreme Court's April ruling, asking whether the Court can re-write the Constitution. He submitted that the top court in the verdict had looked at the President as an "ordinary statutory authority".

On August 20, the Court observed that if a Governor is allowed to permanently withhold assent to the bills passed by State legislature, it would leave the elected State government at the whims and fancies of an unelected Governor.

In the following hearing on August 21, the Court asked whether it should be helpless when a Governor stalls a bill for years. On August 26, the Court made similar observations.

Tamil Nadu government on August 28 argued that accepting that the Governors can withhold assent even to money bills passed by a State legislature would effectively make them a "super Chief Minister" of a State.

On September 2, the Court said that its decision on the Presidential reference concerning the Governors' powers over the bills passed by the State legislatures would not be influenced by which political party is currently in power or was previously in power. It also asked about the consequences of the Governor and the President not following the timeline set by the top court.

Karnataka, West Bengal and Himachal Pradesh governments on September 3 submitted that the Union government was seeking to "abrogate the fulcrum of Constitution" by questioning the Court's April 11 ruling.

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