Governor is 'super Chief Minister' if he can withhold assent even to money bills: TN to Supreme Court

The Tamil Nadu government on Thursday argued before the Supreme Court 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.

The submission was made by Senior Advocate Abhishek Manu Singhvi before the Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar during the hearing of the reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution.

The reference has questioned the Court's April ruling that prescribed timelines for the President and the Governor to decide on Bills.

Singhvi was responding to a submission made by Senior Advocate Harish Salve, the Maharashtra government's counsel, on August 26 that the Governor can deny assent even to money bills.

"It is in sync with the submission that the Governor is not [just] in a dominating position, he is super Chief Minister...possibly trenching beyond super Chief Minister also," Singhvi submitted.

In response to Solicitor General (SG) Tushar Mehta's argument that Article 207 would be applicable in case of money bills - which are presented with the recommendation of Governor, and thus the question of withholding assent would not apply - Singhvi said that Article 207 was aimed at preventing private-member money bills. He also said that the Governor is bound by the aid and advice of the council of ministers even in case of money bills.

Singhvi also asked whether the Constitution anywhere states that the last word on a bill would be of the Governor and not of an elected government.

The top court is currently hearing President's reference in relation to a 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.

Singhvi argued that Governor and President are titular heads who have no discretion on executive decision-making, save and except a very few ones.

"There is strong material to show that in each of three options in Article 200, the Governor is bound by council of ministers in returning or referring it to President," Singhvi added.

He also argued that there is no option to fail the bill or make it fall through. Such a reading negates Article 200, he said. He contended that the Governor as the first option can withhold assent only to return it to the legislature.

"Withholding must lead to returning. You can return only when you withhold...It [permanent withholding] will make mockery of whole proviso," he added, while referring Article 200.

At this stage, CJI Gavai said,

"Otherwise, the word as soon as possible will be rendered otiose if you withhold for eternity."

Singhvi further contended that the Governor is part of the legislative process, but is not part of the legislating process.

On Singhvi's argument that the Governor is always bound by the advice of council of ministers, Justice Narasimha asked what would happen if there is insistence for assent even when the bill impinges certain constitutional provisions itself.

"He has no option according to you?" the judge asked.

Singhvi responded that the Governor is not the judge of illegality.

"He has no option. The bill may be illegal...it will be challenged in Court. Your lordships may strike it down. Constitutional scheme will not change about the binding nature of the aid and advice."

The arguments will continue next week.

The Court on August 21 had remarked that it would not like to answer two of the 14th questions and asked whether they could be withdrawn. SG Mehta, who had taken time to seek instructions, today submitted that the President wants the Court to answer the questions.

The first question was:

Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution?

Mehta said Article 32 petitions are filed in relation to fundamental rights and a State government does not have such rights.

"State government is repository of functions to protect the fundamental right of citizens. It cannot file a Article 32 plea by itself...The solution lies elsewhere. 32 would not be maintainable," he submitted.

On the question whether the Court can entertain petitions under Article 131, which confers the top court with original jurisdiction for deciding cases between Central and State governments, Mehta said that the Governor represents the President of India and not the Government of India.

"Suppose the Governor's actions are under challenge, can the Central government come to defend.. He is not same as Government of India for the purpose of Article 131," Mehta submitted.

The second question was:

Is Article 361 an absolute bar to the judicial review in relation to the actions of a Governor under Article 200?

Mehta said that a multitude of considerations go into decision-making on grant or denial of assent.

"Suppose an assembly passes a law that except a particular local language, we will not permit any other language...it may be under list 2, but waiting for a year my be considered by the Governor in his constitutional wisdom to be a wise thing to do," he added.

On August 19, the Court heard arguments on maintainability of the reference. On merits, 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.