Relevance: GS-2: Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers; Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these; Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies

Key Phrases: Constitutional Morality, Office of Governor, Part VI of the constitution, Nabam Rabia Case, NEET bill, Sarkaria Commission, Punchhi Commission, Rajamannar Committee

Why in news?

• The Tamil Nadu Assembly has once again adopted a Bill that was earlier returned by the Governor
• The Bill seeks to grant exemption from the mandatory National Entrance-cum-Eligibility Test (NEET) for seats allotted by the Government in undergraduate medical and dental courses in Tamil Nadu.
• Last week, the Governor returned the Bill, contending that it was against the interests of rural and poor students.

What is the controversy?

• The NEET is a medical entrance examination that is held at all India level for admission to undergraduate medical and dental courses.
• It was introduced in 2013 replacing the All India pre-medical test (AIPMT) and several other premedical exams that were until then conducted by states and various other medical colleges but as students were finding it challenging to appear for multiple entrance examinations the Government of India along with the then Medical Council of India decided to introduce a unified entrance examination but right from its introduction this entrance examination has been controversial and was even challenged at the Supreme Court in the initial phase .
• In the last couple of years the NEET entrance examination has faced a lot of opposition particularly in the state of Tamil Nadu which has argued that the NEET is discriminatory and erodes social justice as it could adversely affect candidates from the rural areas and weaker sections.
• Tamil Nadu government argues that NEET goes against the principle of cooperative federalism and has since tried to bring in a new law which seeks to dispense away with the NEET examination one such attempt was made by Tamil Nadu government and State Assembly in 2017 when it adopted a bill against NEET but this bill did not receive the assent of the Governor and the governor referred the bill to the President as per the constitutional provisions and later the President withheld his assent to the bill. Last year in 2021, the Tamil Nadu government brought back a similar bill which was titled Tamil Nadu Admission To Undergraduate Medical Courses bill. This bill was adopted by the Tamil Nadu Assembly but however it was reserved by the governor and after a long delay he had sent the bill back to the State Assembly for reconsideration which has recently been passed after reconsideration.

Role of Governor

• The Governor is head of state ( and he leads in many ways)
  • The political narrative,
  • The constitutional narrative, and
  • The narrative of governance in the State
• Article 153 states that there shall be a Governor for each State
• The governor acts in 'Dual Capacity' as
  • The Constitutional head of the state and
  • As the representative of the Centre
• S/He acts as bridge between centre and states

What comes next?

• Article 200 of the Constitution deals with grant of assent to Bills passed by the Assembly
  • In case it’s not a money bill
    • It can be returned for reconsideration. Also, the governor may suggest the changes which s/he wants to be introduced.
    • The House will have to reconsider as suggested. If the Bill is passed again, with or without changes, and presented for assent, “the Governor shall not withhold assent therefrom”
  • In case it’s a money bill
    • It can’t be returned, either he will have to give his/her ascent or withhold his/ her consent (or reserve the bill for the president in rare cases)
  • But if the bill is on a subject in concurrent list then the Governor, as per Article 201, can reserve the bill for presidential assent
    • NEET is mandatory under Section 10D of the Indian Medical Council of India Act, an amendment introduced in 2016. Therefore, the State law can be in force only if the President grants his assent. This will cure the ‘repugnancy’ between the central and State laws
  • The Constitution makes it mandatory that the Governor should reserve for the President’s consideration if,
    • In his opinion (a phrase that means he exercises his own discretion in this), a Bill that “so derogates from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill”. In other words, any Bill that seems to clip the wings of the High Court or undermine its functioning will not become law without the President’s assent.

What happens when the President considers the Bill?

• There is no timeframe for acting on the bill
• Article 201 says when a Bill is reserved by a Governor for his consideration, “the President shall declare either that he assents to the Bill, or that he withholds assent therefrom”.
  • S/He may also direct the Governor to return the Bill, if it is not a Money Bill, to the Legislature along with a message.
  • The House or Houses will have to reconsider the Bill within a period of six months from receiving it.
  • It may pass the Bill again with or without any change. The Bill shall again be presented to the President for his consideration. The article ends with that.
  • This means that the Bill will become law if the assent is given, but nothing can be done if the Bill is denied assent by the President or if he makes no decision.

Does the Governor have any discretion in this regard?

• Section 75 of the Government of India Act, 1935, contained the words ‘in his discretion’ while referring to the Governor’s grant of assent to Bills. The phrase was consciously omitted when Article 175 in the draft Constitution (later renumbered as the present Article 200) was enacted.
• Commentators generally agree that the Governor, who normally functions on the aid and advice of the Council of Ministers, is bound to go by the advice in the matter of granting assent.
• It may seem unusual to say the Governor should act on ministerial advice even when withholding assent and returning a Bill for reconsideration.
  • However, a reading of the Constituent Assembly debates shows that this was indeed what the framers of the Constitution intended. It was explained on behalf of the drafting committee that there may be a situation when the Council of Ministers feels that a Bill has been hastily adopted or that it requires changes
• In such a situation, the Constitution must provide for the possibility that the Council may want to recall its Bill, and accordingly advise the Governor to return it.
• While analysing the provision, the Sarkaria Commission on Union-State Relations points out that the Constitutional Adviser’s note said there could be occasions for even withholding assent on the advice of the Ministers.
• For instance, if after a Bill is passed the CoM resigns before the Bill gets the Governor’s assent, the new CoM may not want to go ahead with the Bill and might advise against assent being given. These examples suggest that no discretion was ever envisaged for the Governor in dealing with Bills.

Way Forward

• Need to revive constitutional morality
  • It was famously said by Ambedkar and President Narayanan later that the fault is not with the Constitution but between those who run it
• There have been many occasions when the Centre has sounded out a Chief Minister before appointing a Governor. This convention must be restored
  • Suggested by Sarkaria Commission
• Positive examples of cordiality between the constitutional office of Governor and that of the elected office of Chief Minister must be highlighted
  • The example of B.K. Nehru in Jammu and Kashmir whose views ran counter to those of Mrs. Gandhi. He was a shining example of a Governor who could be independent in his views and other policy directives from the Centre regarding the State
• Maintaining delicate balance, envisaged between the Centre and States in the Constitution
  • By adopting the process of consultations and enlightened deliberations between the Governor and the Chief Minister
  • Role of President in appointing the credible persons to the office of governor is of utmost importance
• Discretion of the governor must be bound by procedure and a code of conduct should be established to limit the arbitrary discretion

Conclusion

• In order to establish cordial relations, the recommendations of Sarkaria Commission, Punchhi Commission and Justice V.Chelliah Commission must be implemented.
• Supreme Court in the Nabam Rebia judgement (2016) ruled that the exercise of Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution - the same should be implemented in letter and spirit

Source: The Hindu

Mains Question

Q. Highlight the issues in federal polity of India by with reference to the office of Governor. Illustrate using recent examples.