Date: 26/04/2023

Relevance: GS-2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Key Phrases: Tamil Nadu Assembly, Article 355 of the Indian Constitution, Article 200, Purushothaman Namboothiri vs State of Kerala, legitimacy of Resolution by the Assembly, the discretion of the Governor, legitimacy of withholding assent.

Why in News?

• The Tamil Nadu Assembly has passed a resolution urging the President of India to issue directions to the Governor of the state to ensure that he functions in accordance with the Constitution.
• This move comes after several bills passed by the assembly have been pending due to the governor's inaction.

Scope of Article 355

• Article 355 of the Indian Constitution provides for the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.
• B.R. Ambedkar explained that the purpose of the article was to provide justification for the Union government's intervention in the provincial field if required.
• However, the Constitution is a dynamic document, and its concepts and doctrines have been reinterpreted and expanded by courts over time to meet the changing needs of society.

The legitimacy of Resolution by the Assembly:

• Passing a resolution by the Assembly, requesting the President to issue directions to the Governor to ensure that he functions in accordance with the Constitution, is a new constitutional development.
• Although Article 355 was originally meant to provide justification for central intervention in the States, its scope and range need to be widened.
• When a Governor does not act in accordance with the Constitution and sits on Bills indefinitely, it creates a situation where the governance of the state cannot be carried on in accordance with constitutional provisions.
• In such a situation, the government of the State has a constitutional duty to invoke Article 355 and inform the President and request suitable instructions to the Governor to ensure that the government is carried on in accordance with the Constitution. Thus, making a resolution by the Assembly a legitimate action.

Options provided to the Governor under Article 200

• Article 200 of the Constitution provides options to the Governor when a Bill is presented to him after being passed by the legislature.
• These options are:
  • to give assent;
  • to withhold assent;
  • to send it back to the Assembly to reconsider it; or
  • to send the Bill to the President for his consideration.
• If the Assembly reconsiders the Bill as per the Governor's request under the third option, he has to give assent even if the Assembly passes it again without accepting any of the suggestions of the Governor.
• Since sitting on a Bill passed by the Assembly is not an option given by the Constitution, the Governor, by doing so, is only acting against the constitutional direction.

The practice in the United Kingdom:

• The position of the Governor in India regarding withholding assent is similar to the sovereign in England.
• In theory, the sovereign can refuse to give his assent, but this right has not been exercised since the reign of Queen Anne (1702-14).
• The veto can now only be exercised on ministerial advice, and no government would veto Bills for which it was responsible.

The discretion of the Governor in India:

• Under Article 200, the Governor in India can theoretically withhold his assent to a Bill. However, the question is whether he can exercise this discretionary power on his own or only on the advice of the Council of Ministers.
• Article 154 stipulates that the Governor can exercise his executive powers only on the advice of the Council of Ministers. So, there is a view that the Governor can withhold assent to a Bill only on ministerial advice.

The legitimacy of withholding assent:

• The legitimacy of a Governor withholding assent to a bill passed by the legislature is questionable.
• A Governor is only a constitutional head and has no real powers, and withholding assent means the death of the bill, negating the will of the legislature and the people.

Issue of justiciability:

• D.D. Basu, quoting judgments of the Supreme Court, says that it is not justiciable.
  • Purushothaman Namboothiri vs State of Kerala (1962):
    • The issue that was decided in this case was that a Bill which is pending with the Governor does not lapse on the dissolution of the Assembly.
    • But this judgment does not deal with the justiciability of the process of assent.
  • Hoechst Pharmaceuticals Ltd. And ... vs State Of Bihar And Others (1983):
    • It deals with the power of the Governor to reserve a Bill for the consideration of the President.
    • The Court had held that a Governor reserves a Bill for the consideration of the President in the exercise of his discretion.
    • The Court cannot go into the question of whether it was necessary for the Governor to reserve the Bill for the consideration of the President; thus, this case too does not deal with the justiciability of assent.
• Justiciability of the Governor's Inaction:
  • The issue that is of concern for State governments is the non-decision or indecision on the part of the Governor on a Bill passed by the Assembly. As a result, the government can challenge the inaction of the Governor in a court of law.

Conclusion:

• The issue of gubernatorial inaction is a complex one with constitutional implications.
• The framers of the Constitution did not anticipate that Governors would delay Bills indefinitely without exercising any options given in Article 200.
• This new development requires new solutions within the framework of the Constitution.
• A judicial pronouncement on this matter is needed to eliminate confusion and ensure that governance in the State is carried out in accordance with constitutional provisions.

Source: The Hindu

Mains Question:

Q. “The issue of the Governor’s inaction with respect to pending Bills in state legislatures has gained prominence in recent times.” Analyse the scope of Article 355 of the Indian Constitution with respect to the issue. Also, suggest measures to resolve this issue.