Date : 20/12/2023

Relevance: GS paper 2- Polity - Role of Governor

Keywords: Article 200, Governor's constitutional duty, Governor's discretion,

Context-

• In a groundbreaking decision, Chief Justice of India (CJI) D.Y. Chandrachud delivered a transformative interpretation of Article 200 of the Constitution of India. This landmark judgment, arising from the case of State of Punjab vs Principal Secretary to the Governor of Punjab and Another, redefines the powers vested in Governors when presented with a Bill for assent after passage by the State Legislature.
• The judgment, with far-reaching implications, primarily revolves around the nuanced interpretation of the first proviso to Article 200, which pertains to the Governor's authority to send a Bill back to the Assembly for reconsideration.

Insights of Judgement:

Reevaluating Article 200: Governor's Withholding Power

• The first proviso of Article 200 has historically been a subject of confusion, with scholars like D.D. Basu asserts that the Governor's power to withhold assent is absolute and conclusive. However, CJI Chandrachud's interpretation alters this perception by intricately linking the withholding of assent with the obligation to send the Bill back for reconsideration.
• Effectively, the judgment mandates that if the Governor chooses to withhold assent, immediate reconsideration by the Assembly becomes mandatory, leaving the Governor with no alternative but to ultimately grant assent.
• This creative interpretation safeguards the legislative prerogatives, fortifying the constitutional framework against potential abuses by unelected Governors.

Mitigating Delay Tactics:

• While the judgment addresses concerns regarding the withholding of assent, it also confronts the prevalent issue of Governors delaying decisions on Bills.
• Some Governors, as a common practice, have been withholding assent for extended periods, significantly impeding the legislative process. The Supreme Court's resolute stance in the Punjab case unequivocally asserts that Governors do not have the luxury of delaying decisions on Bills.
• This serves as a pivotal clarification, compelling Governors to expeditiously adjudicate on Bills and contribute to the effective functioning of the State legislative machinery.

Reserving Bills for Presidential Consideration

• Despite the positive strides in curtailing undue delays, there remains a potential avenue for Governors to wield influence over State legislation—reserving Bills for the consideration of the President.
• The second proviso to Article 200 specifies certain Bills that must be mandatorily reserved for the President's consideration. These include Bills that encroach upon the powers of the High Court, endangering its constitutionally defined position.
• However, the ambiguity arises regarding the discretionary power of Governors to send Bills to the President, potentially creating a loophole for manipulation.

The Ambiguous Terrain: What Bills Can Governors Send to the President?

The critical question looming is whether a Governor can arbitrarily reserve Bills for the President's consideration. The Constitution provides indirect references to this issue in Articles 213 and 254.

• Article 213 deals with the ordinance-making power of Governors, specifying that they can promulgate an ordinance only with instructions from the President in cases where they would have deemed it necessary to reserve a Bill containing similar provisions. This indicates a judicious exercise of judgment by the Governor within the constitutional framework.
• Article 254, on the other hand, pertains to the concurrent jurisdiction of State and Central legislatures. It states that a State law on a Concurrent List item prevails in the State even if it contains provisions conflicting with existing central laws, provided it has been reserved for the consideration of the President and has received his assent. While this underscores the necessity of presidential consideration in specific scenarios, it does not mandate the submission of every Bill on concurrent subjects.
• The absence of explicit guidance in the Constitution raises the specter of Governors potentially overstepping their constitutional boundaries by sending Bills exclusively on State subjects to the President. This would contravene the federal scheme of legislative division, and if such Bills contain no provisions repugnant to central laws, there might be an abdication of the Governor's constitutional duty.
• The recent actions of Governors in states like Kerala and Tamil Nadu underscore the urgency of clarifying the scope of a Governor's discretion in reserving Bills for presidential consideration. Governors withholding Bills for extended periods, as witnessed in Kerala, and, more alarmingly, sending Bills to the President against the constitutional mandate, as observed in Tamil Nadu, necessitate a careful examination by the judiciary.
• While the Constitution provides some guidance, it leaves several aspects unexplored. The constitutional validity of a law rests with the judiciary, and neither the Governor nor the President holds jurisdiction over such matters. Governors, as custodians of constitutional values, must exercise their discretion judiciously, avoiding actions that might compromise the essence of the federal structure.

Global Practices:

• In the United Kingdom, although royal assent is necessary for a bill to become law, the Crown does not wield a power of veto by tradition. Refusal of royal assent based on controversial reasons is deemed unconstitutional.
• In the United States, the President holds the authority to deny assent to a bill. However, if both Houses pass the bill again with a two-thirds majority in each House, the bill is enacted into law.

Conclusion

Article 200 serves as a robust defense against undue gubernatorial influence on legislative autonomy. The judgment's emphasis on linking the withholding of assent with mandatory reconsideration bolsters the constitutional framework, safeguarding the rights of the legislature. However, challenges persist in the form of Governors potentially exploiting the discretionary power to reserve Bills for presidential consideration. The constitutional silence on this matter necessitates urgent judicial scrutiny to prevent gubernatorial overreach. As the judiciary navigates these uncharted waters, the delicate balance between the executive and legislative branches remains pivotal. CJI Chandrachud's nuanced approach underscores the importance of fortifying democratic ideals, ensuring that the constitutional principles governing the lawmaking process endure, unblemished by unwarranted external influences.

Source- The Hindu