Allowing Governor to veto bill will render elected State government moot: Supreme Court

The Supreme Court on Wednesday observed that in case a Governor has the power 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.

The Constitution Bench of Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar was hearing a reference made by President Droupadi Murmu to the top court under Article 143 of the Constitution in relation to the Court's April ruling that prescribed timelines for the President and the Governor to decide on Bills.

The Court today made the remark when Solicitor General (SG) Tushar Mehta argued that the Governor under Article 200 of the Constitution can withhold assent to a bill, making it "fall through" with no option to send it back to the legislature.

"Would we not be giving total powers to Governor to sit in over appeal. The government elected with the majority will be at whims and fancies of Governor," CJI Gavai remarked.

The Court further remarked that the Governor will then have ample powers to sit over bills and withhold it for time immemorial.

In response, Mehta said everyone derives power from the Constitution.

The Presidential reference questions the top court’s top court's April ruling which prescribed timelines for the President and the Governor to decide on Bills and also held that the Governor’s inaction under Article 200 (Governor's powers regarding assent to bills passed by the State Legislature) was subject to judicial review.

The April ruling was rendered by a Bench of Justices JB Pardiwala and R Mahadevan in The State of Tamil Nadu v The Governor of Tamil Nadu & Anr. In that verdict, the Court held that the Governor 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.

On Tuesday, 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 top court in the verdict had looked at the President as an "ordinary statutory authority".

Arguments today

Solicitor General Tushar Mehta, appearing for the Union government, today stressed upon the importance of Governors in the system and read out the Constituent Assembly debates in this regard.

However, the Court asked whether the Governors have lived up to the vision expressed then by the makers of Constitution about harmony between the Governor and State.

"You are entitled to read the Constituent Assembly debates but see whether the expectations they had were met or not," CJI Gavai remarked.

The Court also remarked that the Court has some experience about how some Governors have exercised the discretionary powers, leading to a number of cases.

Mehta said the variations and exceptional circumstances should not guide the Court in interpreting the Constitution.

"One cannot interpret the Constitution on the basis of worst examples," he said.

On the powers of Governor under Article 200 in context of bills passed by a State legislature, Mehta submitted that the Governor has four options - assent to the bill, withhold assent, reserve the bill for consideration of the President or send it back to the legislature.

Mehta said that when the Governor withholds assent, the bill falls through.

At this point, the Court remarked that the Governor would have to "declare" or communicate his decision in any case and not withhold assent without reasoning. Justice Kant also said that the central point of debate would be around the meaning of 'withholding' - whether it is temporary or permanent.

On the instances when a Governor can withhold assent, Mehta said there can be a bill which has provisions that are repugnant, may violate somebody's fundamental rights or, according to Governor, are not desirable.

Mehta also said the power to withhold is to be used rarely and only in the first instance as it leads to death of the bill.

Governors are seasoned people with years of political experience or public service, he further submitted.

"Governor is not just a postman. He represents Union of India, appointed by the President. The President is elected by entire nation by way of entire election and that is also a way of democratic expression," the SG further submitted.

On SG's argument that the bill would fall through when Governor withholds assent, the Court remarked that the question of judicial review becomes far more important in that case. It also highlighted the importance of Governor 'declaring' his reasoning for his decision on a bill.

"Otherwise, then how to exercise the power of judicial review," Justice Kant said.

The judge also remarked that there was a curtailment of power of Governor in such interpretation, adding that Governor can suggest modifications and return it.

Similarly, Justice Narasimha said that even when Governor withholds the assent, the "political process" can knock on his door and he can send the bill back for reconsideration.

"But to say that when first time he says 'I withhold, the matter comes to an end'. It can't be like that. It is counterproductive to the powers of Governor, counterproductive to the legislative power also. It has to be open-ended. He could also say 'please modify'," the judge added.

SG Mehta urged the Court to keep an ideal situation in mind when interpreting the law and not how a "rogue Governor" would act in a particular manner. At this, Justice Narasimha remarked that the Court was not asking with a prejudice that the Governors are acting in such manner.

Earlier during the hearing, Justice Narasimha remarked that an ideal situation was contemplated when the laws were originally enacted.

"Interpretation is a process. It takes into account how the system is working and it can't be frozen at a time when the Article is made and what ideal situation was there at that point. We interpret it on the basis of how these constitutional functionaries are working," the top court judge said.

CJI Gavai also agreed that interpretation of law cannot be static.

"See the Telangana judgment we have delivered recently. That time it was not anticipated that Speakers will lead to situation which ends in 'operation successful, patient dead' but that happened," the CJI said.

In response, Mehta said inability of one organ to do what is expected would not empower other organ to take over.

The arguments will continue on Thursday.