The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

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Relations wherein it was suggested that the Governor should make a declaration under Article 200 within one month from the date on which the Bill is presented. He also referred to the Punchhi Committee Report on Centre- State Relations which recommended “maximum period of six months after Bill is presented” to be the time limit to be followed by the Governor under Article 200.

e) The observations made by this Court in its decision in Valluri Basavaiah Chowdhary are not applicable to the present case i) Mr. Singhvi submitted that this Court in Valluri Basavaiah Chowdhary (supra) had no occasion to adjudicate upon the interpretation of the constitutional powers of the Governor under Article 200 of the Constitution. Therefore, the observations of the Court in Para 19 cannot be construed to be its ratio decidendi. At most, these observations could be considered as obiter dicta. Indeed, they may not even constitute obiter but are mere observations, totally unconnected to and unnecessary for that case. ii) He relied upon the decision of this Court in Secunderabad Club v. Commissioner of Income-Tax reported in (2023) SCC OnLine SC 1004 to submit that in terms of Article 141 of the Constitution, only the ratio decidendi of a judgment, that is, the reason assigned in support of the conclusion, is binding. He submitted that this Court has held that what is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance. iii) He submitted that the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the court in a case. Although the obiter dictum of the Supreme Court is binding on all courts yet it only has persuasive authority as far as the Supreme Court itself is concerned.

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iv) He further submitted that a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. v) Lastly, he submitted that even if the decision in Valluri Basavaiah Chowdhary (supra) is interpreted as a binding precedent, still such interpretation of the Article 200 would fall foul of the intention envisaged by the Constituent Assembly.

f) Role of the President under Article 201. i) On the aspect of the position of the President under Article 201, he submitted that the President is not required to mandatorily assent to the bill that is presented to him for his consideration after being repassed by the State Legislature, once such bill has been sent back by the President under the proviso to Article 201 in the first instance. ii) It was submitted that Article 201 does not contain the expression “shall not withhold assent therefrom” in the proviso unlike the first proviso to Article 200. He further submitted that this Court in Kaiser-I-Hind (supra) had held that the assent of the President envisaged under Articles 31-A, 31-C, 254(2) and 304(b) of the Constitution respectively constitutes a distinct class and category of its own and is different from the assent envisaged under Articles 111 of the President or Article 200 of the Governor. A bare perusal of Article 201 indicates that even when the Houses of the State Legislature re-pass the Bill and present it for consideration in terms of the proviso to Article 201, there is no compulsion on the President to accord assent. iii) Just as the Governor, the President is also bound by the aid and advice of his Council of Ministers under Article 201 of the Constitution. Such absence of compulsion of the President to grant assent to the Bill re-considered and repassed by the State Legislative Assembly is also subject to the aid and advice of the Council of Ministers. Whether the President should grant assent or not would be subject

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to the aid and advice by the Council of Ministers. There is no individual discretion vested in the President in granting or not granting the assent under Article 201.

g) Malice in law and malice in fact i) He submitted that the Governor could be said to have committed violence to the constitutional framework by not adhering to the mandate under Article 200 of the Constitution and has also attempted to render the present Writ Petition infructuous during its pendency. ii) It was submitted that when the Petitioner had approached this Court initially, the Governor had kept 12 Bills pending. Thereafter, the captioned Writ Petitions were heard by this Court on 10.11.2023 wherein it was observed that the present Writ Petition raised a matter of serious concern and issued notice to the Union of India represented by the Secretary to the Government in the Ministry of Home Affairs. In light of the aforesaid, the Governor hastily on 13.11.2023 referred two Bills for the consideration of the President and withheld assent simpliciter to the remaining 10 Bills. On 18.11.2023, a special session of Tamil Nadu Legislative Assembly was held and the 10 Bills were reconsidered and passed in the Assembly. These Bills were sent to the Governor for consideration on the same day itself. However, the Governor, with a view to render the present petition infructuous, reserved the 10 Bills for the consideration of the President. iii) In the last, the learned counsel submitted that the action of the Governor has been contrary to what was laid down by this Court in S.R. Bommai (supra) wherein it was stated that the Governor is a very high Constitutional functionary and he is supposed to act fairly and honestly, in a manner consistent with his oath. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal mala fides, it is bound to vitiate the President’s action as well.

33. Mr. P. Wilson, the learned Senior Counsel, made extensive submissions on behalf of the petitioner. For the sake of brevity,

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we are recording only those submissions which are in addition to the points already canvassed by Mr. Dwivedi and Mr. Singhvi respectively: i) The Constituent Assembly after long and detailed debates decided to have a nominated Governor in place of an elected Governor and consciously deleted all expressions from the Draft Constitution which conferred individual discretion on the Governor. He referred to certain portions of the report of the Sarkaria Commission in support of his arguments. ii) Article 91 of the Draft Constitution, 1948 which enumerated the assent to bills by the President, had postulated a time limit of six weeks for the President to provide his assent to the bills presented to him by the Houses of Parliament. iii) Relying on the speech of Mr. T.T. Krishnamachari in the Constituent Assembly, he submitted that Article 200, as finally enacted, does not vest any discretion in the Governor to withhold a bill passed by the Legislature except on the express aid and advice of the Council of Ministers. iv) He submitted that the Sarkaria Commission in its Report in Chapter V had observed that the Governor may reserve a bill for the consideration of President when it clearly violates Fundamental Rights or transgresses other Constitutional limitations. The power to reserve Bills could be used only in rare circumstances. In all other circumstances, the Governor needs to abide by the aid and advice of the Council of Ministers. Therefore, Article 200 does not confer general discretion on the Governor but mandates him to act in accordance with aid and advice of the Council of Ministers. v) He submitted that the fear anticipated by Shri H.V. Kamath as regards the difficulties that may arise due to the use of the phrase “as soon as possible” during the discussion on draft Article 91 is exactly what has been happening in the States of Telangana, Punjab, Kerala as well as in the petitioner State. Thus, this Court must intervene and put the matter on quietus by declaring that it is deemed that assent has been granted to the Bills and declare the action of reserving Bills for assent of the President as ultra vires.

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vi) He submitted that the 10 Bills which are the subject matter of present Writ Petition were dealt with by the Governor during the pendency of the Writ Petition in the manner referred to in paragraph 13 and 14 respectively of the third Amendment application in I.A. No. 216164 of 2024. Therefore, all unconstitutional acts of the Governor remain for consideration by this Court as they are actions pendente lite and this Court has the power to turn the clock back and restore status quo ante.

ii. Submissions on behalf of the Respondents

34. Mr. R. Venkatramani, the learned Attorney General for India, appeared for the respondents and submitted as follows: a. The Governor while acting under Article 200 is not acting in exercise of ordinary discretion but is acting under a constitutional responsibility. Thus, even if it is assumed that the Governor has no individual discretion, he may still withhold assent to a bill as per his constitutional obligation. b. He submitted that having regard to the high level of responsibilities entrusted to the Governor in dealing with Bills presented for his consideration, the Governor may reach out to the Council of Ministers for advice, in order to know the legislative intent, and be benefited as well. However, when on the plain understanding of the bills, the Governor finds constitutional contraventions, or seriously debatable issues of the Constitution, he may apply his mind, with or without the aid of the Council of Ministers. This principle of an area of constitutional deliberation prior to the Governor taking any call under Article 200, cannot be subjected to or put into any strait-jacket formula. c. He submitted that when new issues and concerns of legislation involving federal structure of the polity of the nation arise, it is important that the role of the Governor is neither stretched beyond a point, nor should be allowed to be diminished to a status of no consequence. d. He submitted that in the instant case, the Governor was persuaded by the observations made in Valluri Basavaiah (supra), which suggest that when assent is withheld, the Bill will cease to exist. However, if the Governor chooses to follow the

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procedure under the first proviso, wherever it will be of relevance and of importance to follow, then the Governor would become bound by the mandatory stipulation enunciated in the first proviso. e. He submitted that the single-minded focus of the Governor was to ensure that a repugnant law, if allowed to be on the statute book, would open the scope for maladministration of universities and impede the avowed object and purpose of excellence in higher education, placing all power in the hands of the State Government as opposed to the Chancellor. It is only with a view to avoid such a situation that the Governor withheld assent to the Bills in question. f. On the aspect of reservation of the bills for the consideration of the President, he submitted that there is nothing in Article 200 that suggests that the Governor ceases to have the authority to refer the matter to the President after he has withheld assent to the bill in the first instance. If this authority is available at the time of withholding of assent, the same cannot be taken away or not made available by the State Government acting on their own motion under the first proviso. g. In furtherance of the aforesaid submission, he submitted that for all practical purposes, the Bills forwarded by the petitioner State on 18.11.2023 should not to be treated as sent by the Governor acting under the first proviso. Bills that are sent outside the procedure contemplated by the first proviso, would be open for consideration by the Governor for any further course of action including, reference to the President. The principle of power coupled with duty underlying Article 200 demands that recourse to reference to President even after initial withholding of assent by the Governor, be read into the Article, in order to make the power effective to achieve its purpose. h. He submitted that on a proper reading of the substantive part and the first proviso to Article 200, it will be seen that four courses of actions are available to the Governor. The observations made in the State of Punjab (supra) decision may thus warrant a qualification, or an additional statement to fine-tune the scope of Article 200. i. On the issue as regards whether the first proviso is attracted in all instances of withholding of assent, he submitted that the role

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for the first proviso is confined to cases where the bill may not be hit by any constitutional limitation, is within the competence of the legislature, but may admit of changes, amendments, etc. Such amendments or changes that the Governor may thus suggest within the scope of the first proviso, will not be relatable to matters such as repugnancy. With the perception of repugnancy, the focus of the Governor will be outside the first proviso. He argued that even though this Court in State of Punjab (supra) has opined that the exercise of power under the first proviso is relatable to the withholding of the assent by the Governor, yet this view may require a further qualification that in the context of repugnancy, unlike any other reason for withholding of assent, the Governor need not necessarily proceed to act under the first proviso. The first proviso perhaps cannot be read to be pressed into service when both the Governor and the State Government understand the repugnancy dimension. In the event the State Government desires to clear the repugnancy or any other hurdle, it may itself seek the assent of the President. In such an event the State Government may also ask the Governor to refer the matter to the President for consideration. j. He submitted that that in the present case as the President has withheld assent to the Bills in question, therefore in terms of the statement of law in Hoechst Pharamaceuticals (supra), the action of the President in withholding assent is not justiciable. What cannot be directly done by seeking such justiciability cannot be indirectly achieved by the claim that the action of the Governor in forwarding the bills in question to the President was beyond his authority. k. He submitted that the exposition of Article 200 as done in State of Punjab (supra) is sub-silentio as the Court while making the said decision did not take into account the observations made by the Constitution Bench in Valluri Basavaiah (supra). l. In the last, he submitted that the matter may be referred to a larger Bench of this Court so as to harmonise the observations made in B.K. Pavitra (supra), Valluri Basavaiah (supra) and State of Punjab (supra).

35. Mr. Vikramjit Banerjee, the learned Additional Solicitor General, appeared for the respondents and submitted as follows:

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a. A reading of Clause (1) of Article 163 categorically provides that the Governor ordinarily is aided and advised by the Council of Ministers headed by the Chief Minister, however, there is an express discretion vested with the Governor for exercising functions under the Constitution which permeates all of the provisions that require the Governor to exercise his/her power, including Articles 200 and 201. b. Placing reliance on the decision of this Court in M.P. Special Police (supra), he submitted that that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion and the exceptions are not exhaustive or limited but differ as per the facts of each case. He further submitted that the aforesaid decision recognised that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. There may be situations where, by reason of peril to democracy or democratic principles, an action may be compelled which by its very nature is not amenable to Ministerial advice. An instance of a situation curiously similar to the present case is discussed where bias was inherent and manifest in the advice of the Council of Ministers as the proposed bills sought to fundamentally encroach into the role of the Governor as the Chancellor by seeking to substitute “Chancellor” (who is the appointing authority of Vice Chancellors and also the disciplinary authority) with “Government”. The State Government has impugned the notifications issued by the Governor (in the capacity of the Chancellor) for constitution of Search Committees for appointment of Vice Chancellors for State Universities. Additionally, the Bills were effectively aimed at seeking to control the co-ordination and standards of higher and technical education/research which fall under Entry 66 of the Union List (under the Seventh Schedule of the Constitution). c. Placing reliance on the decision of this Court in Purushothaman Nambudiri v. State of Kerala reported in 1961 SCC OnLine SC 361 he submitted that the idea of reading in a time limit in Articles 200 and 201 respectively had been deliberated upon and expressly rejected by this Court in the said decision.

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C. ISSUES FOR CONSIDERATION

36. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions of paramount constitutional importance fall for our determination:

I) What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution? i. Whether the first proviso could be said to provide an independent course of action available to the Governor in addition to the three options provided under the substantive part of Article 200? ii. In what manner the expression “the Bill falls through unless the procedure under the first proviso is followed”, as used in Valluri Basavaiah Chowdhary (supra), should be construed? iii. Whether the decision of this Court in State of Punjab (supra) could be said to be per incuriam for not having taken into consideration the observations made in previous decisions rendered by larger benches of this Court? iv. Whether the scheme of Article 200 of the Constitution envisages the exercise of ‘absolute veto’ or ‘pocket veto’ of a bill by the Governor?

II) Whether the Governor can reserve a bill for the consideration of the President at the time when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance and had declared withholding of assent thereto? i. Whether the reservation by the Governor, for the consideration of the President of the ten Bills which were repassed by the Tamil Nadu State Assembly and presented to the Governor on 18.11.2023, is erroneous in law and hence liable to be set aside?

III) Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act

p. 1040

in the exercise of his powers under Article 200 of the Constitution? i. How is the absence of an express time-limit in Article 200 to be construed for ascertaining the manner in which the Governor is expected to exercise his powers under the said provision? ii. What is the import of the expression “as soon as possible” appearing in the first proviso to Article 200? iii. Whether a time-limit can be prescribed by this Court for ensuring that the exercise of power by the Governor under Article 200 is in conformity with the object of expediency underlying the scheme of the said provision?

IV) Whether the Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers? If not, whether the constitutional scheme has vested the Governor with some discretion in discharge of his functions under Article 200? i. How has the role of the Governor been envisaged under the constitutional scheme? ii. Whether the Governor enjoys a certain degree of discretion in discharge of his functions in contrast to the President? What is the source of such discretion, if any? iii. Whether the deletion of the expression “in his discretion” from Article 175 of the Draft Constitution imply that the Governor has no discretion available in the exercise of his powers under Article 200? iv. Whether the observations of this Court in B.K. Pavitra (supra) that “a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200” could be said to be per incuriam for having failed to notice the position of law as laid down by the larger Benches of this Court?

V) Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 could be

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said to be subject to judicial review? If yes, what are the parameters for such judicial review? i. Whether the discharge of functions by the Governor under Article 200 of the Constitution in his discretion could be said to be immune from judicial review? ii. Whether the withholding of assent by the President under Article 201 of the Constitution could also be said to be beyond the scope of judicial scrutiny? iii. If the aforesaid discharge of functions is subject to judicial review, whether such discharge of functions could be said to be non-justiciable in light of the decisions of this Court in Hoechst (supra), Kaiser-I-Hind (supra), and B.K. Pavitra (supra)?

VI) What is the manner in which the President under Article 201 of the Constitution is required to act once a bill has been reserved for his consideration by the Governor under Article 200 of the Constitution? i. Whether the decision of the President to withhold assent under Article 201 of the Constitution could be said to be justiciable? If yes, what is the extent of justiciability that the courts can embark upon while undertaking judicial review of the exercise of powers by the President under Article 201 of the Constitution?

D. ASSENT TO BILLS – HISTORICAL BACKGROUND

37. Article 200 appears in Chapter III of Part VI of the Constitution under the heading Legislative Procedure. Part VI deals with the States and Chapter III deals with the State Legislature. The marginal note attached to Article 200 reads “Assent to Bills” and the article reads as follows: “200. Assent to Bills. – When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill

p. 1042

or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President: Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

38. Section 75 of the Government of India Act, 1935 (for short, “the GoI Act, 1935”) upon which the Article 200 has been substantially modelled is reproduced hereinbelow: “75. Assent to Bills. – A Bill which has been passed by the Provincial Legislative Assembly or, in the case of a Province having a Legislative Council, has been passed by both Chambers of the Provincial Legislature, shall be presented to the Governor, and the Governor in his discretion shall declare either that he assents in His Majesty’s name to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the Governor General : Provided that the Governor may in his discretion return the Bill together with a message requesting that the Chamber or Chambers will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as

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he may recommend in his message and, when a Bill is so returned, the Chamber or Chambers shall reconsider it accordingly.”

39. A perusal of both the aforesaid provisions indicates that Article 200 of the Constitution corresponds to Section 75 of the GoI Act, 1935 except for the following differences: a. The expression “in his discretion” has been omitted from both the substantive part of Article 200 as well as the first proviso thereto. b. The Governor under Article 200 assents to the bill in his own name unlike Section 75 wherein the assent was to be granted in the name of the Crown. c. The expression “if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom” has been added to the first proviso to Article 200. d. The second proviso is a further addition to Article 200 and did not exist in Section 75 referred to above.

40. D.D. Basu in his Commentary on the Constitution of India (pp. 6311, 8th Ed., 2009) has observed that the omission of the expression “in his discretion” from Article 200 signifies that the Governor must exercise his power under the Article according to the advice of his ministers. Further, the addition of the expression “shall not withhold assent therefrom” indicates that the Governor has no power to veto a reconsidered bill and must assent to it whether it is passed in the original form or with amendments.

41. Article 200 is divided into three parts - the substantive part and two provisos. A perusal of the substantive part of Article 200 indicates that the presentation of a bill to the Governor is mandatory after it is passed by the State legislature. The same is made evident from the use of the expression “it shall be presented to the Governor”. In the same breath, Article 200 makes it mandatory for the Governor to make one of the following declarations: a. That he assents to the bill; or b. That he withholds assent to the bill; or c. That he reserves the bill for the consideration of the President.

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42. It is important to note that the expression “shall” has been used to qualify the three types of declarations that the Governor can make upon presentation of the bill to him. Further, the three options provided in the substantive part of Article 200 are connected by the conjunction “or” which signifies that the three options are mutually exclusive of each other, and the Governor can only choose one of them at a time. In other words, the Governor cannot assent to a bill and also reserve it for the consideration of the President at the same time. Similarly, the Governor cannot declare that he withholds assent and also reserve the bill for the consideration of the President at the same time. Patanjali Sastri, Chief Justice (as he then was), observed to this effect in State of Bihar v. Kameshwar Singh reported in (1952) 1 SCC 528 as follows: “20. […] It is significant that the article does not contemplate the Governor giving his assent and thereafter, when the Bill has become a full-fledged law, reserving it for the consideration of the President. Indeed, the Governor is prohibited from giving his assent where such reservation by him is made compulsory. The Constitution would thus seem to contemplate only “Bills” passed by the House or Houses of Legislature being reserved for the consideration of the President and not “laws” to which the Governor has already given his assent. […] Similarly, Article 31(3) must, in my judgment, be understood as having reference to what, in historical sequence, having been passed by the House or Houses of the State Legislature and reserved by the Governor for the consideration of the President and assented to by the latter, has thus become a law. If it was intended that such a law should have the assent of both the Governor and the President, one would expect to find not only a more clear or explicit provision to that effect, but also some reference in Article 200 to the Governor’s power to reserve a measure for the consideration of the President after himself assenting to it. On the other hand, as we have seen, where reservation by the Governor is made obligatory, he is prohibited from giving his assent.” (Emphasis supplied)

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43. The first proviso to Article 200 has no application to Money Bills. For all other bills, it provides that the Governor may, as soon as possible after the presentation of the bill to him for assent, return the bill to the House or Houses along with a message requesting the House or the Houses to reconsider the bill in totality or certain provisions thereof. He may also recommend the introduction of certain amendments to the bill. The first proviso further states that when a bill is returned with such a message, then the House or the Houses must reconsider the bill accordingly and if the bill is passed with or without amendments and presented to the Governor for assent, he shall not withhold assent therefrom.

44. The second proviso to Article 200 provides that if the Governor is of the opinion that a bill which is presented to him for assent would, upon becoming law, so derogate from the powers of the High Court as to endanger the position which that Court is designed to fill by the Constitution, then he must reserve the bill for the consideration of the President and not grant assent to it.

45. The heart of the controversy before us lies in the interpretation of the substantive part of Article 200 and the first proviso to it. The arguments advanced before us coupled with the factual situation which we are confronted with, and the broader constitutional and political consequences that an interpretation of Article 200 entails, has opened up before us a treasure trove of questions hidden in the seemingly innocuous and plain language used in Article 200.

46. For a better understanding of Article 200, it is necessary that we should first understand the concept of assent to bills, how it has evolved over the centuries and its importance in parliamentary democracies across the globe. We are undertaking this exercise as Article 200 cannot be understood fully without having regard to the context in which it came to be included in the Constitution. While fidelity to the text of the provision holds paramount consideration in its interpretation, the context is equally, if not more, important, more so in light of the fact that Article 200, as its stands today, bears striking resemblance to Section 75 of the GoI Act, 1935 and other important historical documents which were being drafted by Indians during the course of the freedom struggle.

47. In Westminster styled polities, the Parliament consists of a lower House, an upper House and the head of state. The Indian Constitution

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has also broadly adopted a similar structure, which becomes evident from Articles 79 and 168 respectively. Article 79 provides that the Parliament shall consist of the President and two Houses - the Council of States and the House of the People. Article 168 provides that each State shall have a Legislature which shall comprise of the Governor and either one or two House(s), as the case may be. In the Westminster system, for a law to be passed by the Parliament, it must receive the approval of all the three elements - the Lower House, the Upper House and the Head of the State.

48. Jessica J. Richardson2 in her paper titled “Modernisation of Royal Assent in Canada”, has traced the historical origins of the practice of granting assent to bills enacted by the Parliament in the United Kingdom. She has explained that the practice of signifying royal assent to bills passed by Parliament began during the reign of Henry VI (1422-71), when the practice of introducing bills in the form of petitions was replaced by bills in the form of complete statutes. This was a time when assent was granted in person. The Sovereign would attend the Parliament in the House of Lords and give his consent in person. This practice continued until 1541, when the task of signifying royal assent was assigned to a Royal Commission in order to spare King Henry VIII the indignity of having to give royal assent to the Bill of Attainder, which provided for the execution of his wife Catherine Howard. It was after this occurrence that the practice of appointing Lords Commissioners responsible for giving royal assent developed. In the United Kingdom, the last instance of a monarch giving royal assent in person was in 1854 when Queen Victoria personally assented to several bills prior to proroguing the Parliament. However, in Canada, King George VI gave royal assent in person to bills passed by the Canadian Parliament in 1939 during a visit to Canada. The use of a royal assent ceremony continued in the United Kingdom until 1967, when the British Parliament passed the Royal Assent Act, 1967. The said legislation repealed the Royal Assent by Commission Act, 1541 and allowed a simple report of royal assent by the Speakers of the two Houses to give a bill the force of law.

49. In the Canadian context, she explains that the royal assent ceremony was inherited from the United Kingdom tradition and was used prior

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to Confederation in both Lower and Upper Canada and closely resembled the original ceremony used in the United Kingdom. Prior to adoption of the new procedure in 2002, Canada was the only remaining Commonwealth country to still use the traditional ceremony for royal assent. However, taking inspiration from the practice prevailing in other Commonwealth countries including Australia and New Zealand, as well as several Canadian provinces, the royal assent procedure was modernised by adopting a written declaration procedure.

50. One of the first instances where the concept of assent to bills appears in a documented form in the Indian context is the Constitution of India Bill, 1895 which is also popularly referred to as the Swaraj Bill. The Bill, which is also termed by the academics as the first articulation of a constitutional imagination by Indians, besides incorporating ideas of free speech, equality before law, right to property, etc., also envisaged a machinery of governance and separation of powers, albeit within the British Empire. As regards the legislative structure, the Bill proposed that the Sovereign of Great Britain shall reign and rule over India and the Viceroy shall be the representative of the Sovereign in India. It further envisaged that the Viceroy would be the President of the Parliament and would have the power to veto any law enacted by the Indian Parliament and initiate legislation. Article 97 of the Bill provided that no bill would become law until it received the sanction of the Sovereign. The said provision is reproduced hereinbelow: “97. No Bill shall become law unless it has passed by majority through the Lower House three times and the Upper House three times and unless it has obtained the sanction of the Sovereign.”

51. A few years after the ideation of the Swaraj Bill, the demand for self-government further found expression in the Congress- League Scheme of 1916 which was a result of deliberations of the committees constituted jointly by the Indian National Congress and the All India Muslim League. The document envisioned a federal polity - with Provincial Legislative Councils for the provinces and an Imperial Legislative Council at the national level. It is pertinent to note that as per the scheme, the Governor was envisaged as the head of the provincial government and any bill passed by the provincial legislature had to mandatorily receive his assent before

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it became law. Further, the document also conferred upon the Governor-General the power of vetoing any law passed by the provincial legislature. Any bill passed by the Imperial Legislative Council had to receive the assent of the Governor-General before it became law. The relevant provisions in the said document are reproduced hereinbelow: “I. Provincial Legislative Councils

xxx xxx xxx

9. A Bill, other than a Money Bill, may be introduced in Council in accordance with rules made in that behalf by the Council itself and the consent of the Government should not be required therefor. II. Provincial Governments

1. The head of every Provincial Government shall be a Governor who shall not ordinarily belong to the Indian Civil Service or any of the permanent services.

xxx xxx xxx III. Imperial Legislative Council

xxx xxx xxx

9. All Bills passed by the Council shall have to receive the assent of the Governor-General before they become law.”

52. In the backdrop of the growing demand for self-government by the Indian National Movement and the Montagu-Chelmsford Report, the Government of India Act, 1919 (for short, “the GoI Act, 1919”) was enacted and received assent of the British Crown in December,

1919. The legislation introduced dyarchy at the provincial level, by the introduction of the transferred list and the reserved list. The reserved list consisted of the subject matters on which the Governor enjoyed exclusive legislative powers. However, what we wish to draw attention to is the provision contained in the said legislation as regards assent to bills. Section 12 provided that the Governor had four options to choose from when a bill was presented to him for assent - to declare assent, to withhold assent, to return the bill to the council for reconsideration or to reserve the bill for the consideration of the Governor-General. Notably, there was no requirement for the

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Governor to mandatorily assent to a bill upon its presentation after reconsideration. Further, the Governor had the power to veto any bill passed by the legislative council by a declaration simplicter of withholding of assent. There was also a provision for the lapse of a bill reserved for the consideration of the Governor-General if assent was not granted within a period of six months. Thus, the concept of both absolute and pocket veto could be said to have been available to the Governor and the Governor-General under the provisions of the GoI Act, 1919. The relevant provision is reproduced hereinbelow: “12. Return and reservation of Bills. – (1) Where a Bill has been passed by a local legislative council, the governor, lieutenant-governor or chief commissioner may, instead of declaring that he assents to or withholds his assent from the Bill, return the Bill to the council for reconsideration, either in whole or in part, together with any amendments which he may recommend, or, in cases prescribed by rules under the principal Act may, and if the rules so require shall, reserve the Bill for the consideration of the Governor-General. (2) Where a Bill is reserved for the consideration of the Governor-General, the following provisions shall apply:- (a) The governor, lieutenant-governor or chief commissioner may, at any time within six months from the date of the reservation of the Bill, with the consent of the Governor- General, return the Bill for further consideration by the council with a recommendation that the council shall consider amendments thereto: (b) After any Bill so returned has been further considered by the council, together with any recommendations made by the governor, lieutenant-governor or chief commissioner relating thereto, the Bill, if re-affirmed with or without amendment, may be again presented to the governor, lieutenant-governor, or chief commissioner: (c) Any Bill reserved for the consideration of the Governor-General shall, if assented to by the

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Governor-General within a period of six months from the date of such reservation, become law on due publication of such assent, in the same way as a Bill assented to by the governor, lieutenant-governor or chief commissioner, but, if not assented to by the Governor-General within such period of six months, shall lapse and be of no effect unless before the expiration of that period either- (i) the Bill has been returned by the governor, lieutenant-governor or chief commissioner, for further consideration by the council; or (ii) in the case of the council not being in session, a notification has been published of an intention so to return the Bill at the commencement of the next session. (3) The Governor-General may (except where the Bill has been reserved for his consideration), instead of assenting to or withholding his assent from any Act passed by a local legislature, declare that he reserves the Act for the signification of His Majesty’s pleasure thereon, and in such case the Act shall not have validity until His Majesty in Council has signified his assent and his assent has been notified by the Governor- General.”

53. A reading of the aforesaid provision also indicates that at the time of drafting Article 200, the framers of the Constitution not only had before them Section 75 of the GoI Act, 1935 but also Section 12 of the GoI Act, 1919 as well as other possible variations about which we shall discuss in the following paragraphs. However, certain features of Article 200, namely, the absence of automatic lapse upon not receiving approval, mandatory requirement for the Governor to not withhold assent to a bill which is presented to him after being reconsidered by the legislature and absence of the expression “in his discretion”, must be viewed in the context of gradual dilution of the role and powers of the Governor in provincial governance as the country neared independence.

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i. Concept of assent to bills as envisaged by certain historical documents drafted during the freedom struggle.

54. The concept of assent by the Sovereign found mention in Section 75 of the GoI Act, 1935 and Article 200 as it stands today is predominantly modelled according to the version which existed therein. However, before we proceed to discuss Section 75 of the GoI Act, 1935 and how it eventually evolved into Article 200 of the Constitution, we deem it appropriate to briefly shed light on how other aspirational constitutional documents, drafted during the course of the freedom struggle, imagined the practice of assent to bills and made certain modifications to the practice that prevailed in the United Kingdom.

55. The Commonwealth of India Bill, 1925 that was drafted by the National Convention had a lasting impact on the eventual framing of our Constitution as regards the idea of royal assent. Article 39 of the said Bill provided that a bill passed by the Parliament would be presented to the Viceroy for obtaining the King’s assent. Similarly, for the provinces, Article 83 provided that the bills passed by the provincial legislature would be presented to the Governor for obtaining the King’s assent. However, what is relevant to note is that the provisions were not elaborate as regards the procedure and scope of powers of the Sovereign while taking a decision on the aspect of assent.

56. However, the Nehru Report of 1928 shortly followed the Commonwealth of India Bill, 1925 and was drafted in response to the dissatisfaction with the Simon Commission. The Report sought to negative the challenge posed by the British that a constitutional document, which is agreeable to all, could not be drawn by Indians, and contained elaborate provisions providing the mechanism for the purpose of assent to bills.

57. As regards the bills passed by the Parliament, it was stipulated in the Nehru Report that a bill would not become an Act until assent was granted by the Governor-General. The Governor-General was provided with three options - to signify assent, to withhold assent or to reserve the bill for consideration by the British Crown. Notably, there was no obligation on the Governor-General to signify assent after a bill was repassed with or without the amendments suggested by him. The relevant provision is reproduced hereinbelow: “21. (i) So soon as any bill, shall have been passed, or deemed to have been passed by both Houses, it shall be presented to the Governor-General for the signification

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by him, in the King’s name, of the King’s assent, and the Governor-General may signify such assent or withhold the same or he may reserve the bill for the signification of the King’s pleasure. (ii) A bill passed by both Houses of Parliament shall not become an Act until the Governor-General signifies his assent thereto in the King’s name or in the case of a bill reserved for the signification of the King’s pleasure until he signifies by speech or message to each House of Parliament, or by proclamation that it has received the assent of the King in Council. Provided that the Governor-General may, where a bill has been passed by both Houses of Parliament and presented to him for the signification by him of the King’s assent, or has been reserved by him for the signification of the King’s pleasure, return the bill for reconsideration by Parliament with a recommendation that Parliament shall consider amendments thereto. (iii) Any bill so returned shall be further considered by Parliament together with the amendments, recommended by the Governor-General, and if re-affirmed with or without amendments, may be again presented to the Governor- General for the signification in the King’s name of the King’s assent.”

58. As regards the provincial legislature, a bill passed by the provincial legislature had to be assented to by the Governor before it would become an Act. The Governor had two options - to declare assent or to withhold assent. Notably, the Governor did not have the option to reserve the bill for the consideration of the Governor-General. However, every bill after receiving the assent of the Governor had to be mandatorily referred to and assented by the Governor-General failing which the Act would have no validity. Even after receiving the assent of the Governor-General, the Act could be disallowed by the King and would thereupon become void. The relevant provisions are reproduced hereinbelow: “37. When a bill has been passed by a local Legislative Council, the Governor may declare that he assents to or withholds his assent from the bill.

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38. If the Governor withholds his assent from any such bill, the bill shall not become an Act.

39. If the Governor assents to any such bill, he shall forthwith send an authentic copy of the Act to the Governor- General, and the Act shall not have validity until the Governor-General has assented thereto and that assent has been signified by the Governor-General to, and published by the Governor.

40. Where the Governor-General withholds his assent from any such Act, he shall signify to the Governor in writing his reason for so withholding his assent.

41. When an Act has been assented to by the Governor- General it shall be lawful for His Majesty in Council to signify his disallowance of the Act.

42. Where the disallowance of an Act has been so signified, the Governor shall forthwith notify the disallowance, and thereupon the Act, as from the date of the notification shall become void accordingly.”

59. In 1944, the All India Hindu Mahasabha adopted the Constitution of Hindustan Free State Act as an aspirational constitutional document. As regards the procedure of assent by Governor in provinces, the document contained the following provision: “93. (1) So soon as any bill shall have been passed by both Chambers it shall be presented to the Governor for the signification of his assent, and he may signify such assent or withhold the same. (2) A bill passed by both Chambers shall become an Act if the Governor signifies his assent thereto, and that assent has been published by him. (3) In case where the Governor withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration with his own recommendations thereto. (4) A bill so returned shall be further considered by both Chambers together with the recommendations made by the Governor, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been

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assented to by the Governor, but it shall not become an Act unless and until the President of the Hindusthan Free State has assented thereto and that assent has been signified by the President to and published by the Governor.”

60. A perusal of the above indicates that the Governor had the option of either assenting to or withholding a bill presented before him. However, in the latter case, the Governor was under an obligation to return the bill for reconsideration with his own recommendations, whereupon the provincial legislature was required to reconsider the bill in light of the recommendations made. Upon being passed again, with or without amendments, the bill would be deemed to have been assented to by the Governor. However, it would become an Act only upon being assented to by the President, who would signify his assent to the Governor. Thus, the President was vested with the power to veto any bill which had not been assented to by the Governor and was passed again after reconsideration with or without the amendments recommended by the Governor. This was in contrast to the position with respect to the Federal Legislature, wherein no veto power was conferred on the President. The relevant provision read as follows: “30. (1) So soon as any bill shall have been passed by both Chambers, it shall be presented to the President for the signification of his assent, and he may signify such assent or withhold the same. (2) A bill passed by both chambers shall not become an Act unless and until the President signifies his assent thereto. (3) In case where the President withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration to the originating Chamber with his own amendments thereto. (4) A bill so returned shall be further considered by both Chambers together with the amendments recommended by the President, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been assented to by the President and shall become an Act.”

61. One more document that we would like to refer to is the “Constitution of Free India: A Draft” authored by M.N. Roy in 1944. The document proposed a radically different version of assent to bills as

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distinguished from the scheme prevailing under the GoI Act, 1935 or other contemporaneous aspirational constitutional documents. The document vested no authority in the Governor to withhold assent to a bill passed by the provincial legislature or to veto the same. However, the document vested power in the Supreme People’s Legislature, which was a joint sitting of both the chambers of the Federal Legislature, to veto any provincial legislation. However, this veto power was subject to judicial review and the provincial government was given the right to challenge the veto before the Supreme Federal Court. The relevant provisions are reproduced hereinbelow: “Article 62. The Supreme People’s Council will have the right to veto any provincial legislation in the Federal Union on the ground that it is repugnant to the Federal Constitution or contradicts any particular Federal law. Either on the advice of the Council of Ministers or on his own initiative, the Governor General will recommend the vetoing of a Provincial legislation. The Provincial Government concerned will have the right to appeal to the Supreme Federal Court against the veto.

xxx xxx xxx

Article 91. The Governor shall sign and promulgate all laws made by the Provincial People’s Council.”

62. What is interesting to note is that the imagination of a provision as regards assent to bills, when the country was on the brink of becoming independent from the British rule, was significantly different from the previous versions envisaged in times when the freedom struggle was focused more on obtaining greater degree of self-rule while being under the sovereignty of the British Crown, as can be seen in the versions used in the Nehru Report and the Constitution of India Bill, 1925. The two documents which were drafted in 1944, and are referred to above, indicate that the Governor was vested with lesser powers and discretion, and there was a clear inclination towards a more unitary arrangement insofar as assent to bills was concerned. The ideas of judicial review

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of exercise of veto by the President against a state legislation, mandatory return of the bills for reconsideration upon withholding of assent, and deemed assent upon reconsideration were being experimented with among others in the immediate lead up to the framing of our Constitution.

63. Besides the aspirational constitutional documents referred to above, it is also pertinent to discuss how assent was envisaged by one of the first indigenous constitutional documents that was implemented in practice as well. Section 15 of the Aundh State Constitution Act, 1939 that was purportedly enacted to grant self-rule to the people of the Aundh princely state, laid down the procedure for assent to bills. The relevant provision read as follows: “15. (a) All bills shall be passed by a majority of members of the Legislative Assembly present and voting and shall become law only on receiving the assent of Shrimant Rajasaheb. (b) If Shrimant Rajasahab, in his discretion, withholds his assent to a bill which has been duly passed by the Legislative Assembly, he shall return it to the Legislative Assembly together with a message requesting that the Legislative Assembly will reconsider the Bill in the light of his recommendations, and when a bill is so returned, the Legislative Assembly shall consider it accordingly. (c) If the Legislative Assembly accepts the recommendations, the bill shall forthwith become law; but if it rejects the recommendations of Shrimant Rajasaheb, he shall have the right to postpone his assent to the bill till the next session of the Legislative Assembly. He can so postpone the said bill for not more than three times. If the said bill, in its original form, is passed by a simple majority of the members present on all the three times, it is sent for reconsideration, it shall forthwith become law.”

64. What is interesting to note in the aforesaid provision is that although it vested Shrimant Rajasaheb, the King, with the discretion to either assent to a bill passed by the legislature or to withhold assent thereto, yet it made it mandatory for him to return the bill to the legislature with a message requesting them to reconsider the bill in light of his recommendations if he opted for withholding assent. Further, after a

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maximum of three rounds of reconsideration, the bill would become law upon being passed with a majority, regardless of receiving assent of the King or not.

65. On the contrary, the Government of Mysore Act, 1940, gave the King unfettered powers to veto any bill passed by the Legislative Council. The relevant provision reads as follows: “28. (1) When a Bill has been passed by the Legislative Council, it shall be submitted through the Dewan to His Highness the Maharaja for assent with a statement of the opinion expressed by the Representative Assembly on the principles of the Bill or its general provisions. (2) No such Bill shall become law until it has received the assent of His Highness the Maharaja.”

66. Having discussed in detail the inception of the concept of assent to bills in the Indian context and its interaction with the indigenous thought prevailing at the time, we shall now proceed to discuss the provisions pertaining to assent as contained in the GoI Act, 1935 and how it was moulded by the Constituent Assembly into Article 200 of the Constitution.

67. Under the GoI Act, 1935, the Governor was required to act on the aid and advice of the Council of Ministers responsible to the Provincial legislature. However, the Governor continued to have some special responsibilities and he also possessed discretionary powers to act in situations such as prevention of grave menace to the peace or tranquility of the province, safeguarding the legitimate interests of minorities and so on. The Governor could also act in his discretion in specified matters. He functioned under the general superintendence and control of the Governor-General, whenever he acted in his individual judgement or discretion.

68. It is interesting to note that while the framing of the Constitution was being undertaken by the Constituent Assembly, the GoI Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 was made applicable for the administration of the country. By way of paragraph 3 of the said order, the expressions “in his discretion”, “acting in his discretion” and “exercising his individual judgement” were removed/deleted from wherever they occurred in the GoI Act,

1935. Paragraph 3 read thus:

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“3.(1) As from the appointed day, the Government of India Act, 1935, including the provisions of that Act which have not come into force before the appointed day, and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions, additions, adaptations and modifications directed in the following provisions of this paragraph and in the Schedule to this Order. (2) The following expressions shall be omitted wherever they occur, namely, “in his discretion”, “acting in his discretion” and “exercising his individual judgment”. [...]”

69. Article 147 of the Draft Constitution, prepared by the constitutional adviser, Shri B.N. Rau, dealt with assent to bills passed by the provincial legislature and read as follows: “147. A Bill which has been passed by the Provincial Legislature or, in the case of a Province having a legislative Council, has been passed by both Houses of the Provincial Legislature shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President: Provided that where there is only one House of the Legislature of a Province and the Bill has been passed by that House the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will reconsider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House shall reconsider it accordingly and if the Bill is passed again by the House with or without amendments and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”

70. Article 147 as reproduced aforesaid made significant departure from Section 75 of the GoI Act, 1935 as follows: a. The expression “in his discretion” was removed from the substantive part of the provision. However, the said expression

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continued to be present in the proviso to the substantive part. b. While Section 75 of the GoI Act, 1935 provided for the sending back of a bill for reconsideration by the legislature in the provinces having both unicameral and bicameral legislatures, Article 147 only provided for such reconsideration in the provinces with a unicameral legislature. c. Under Section 75, there was no mandate upon the Governor to mandatorily assent to a bill when the bill was presented to him for reconsideration. However, in Article 147, the expression “shall not withhold assent therefrom” was added in the first proviso.

71. Four months after the Draft Constitution was submitted by Shri B.N. Rau, the Drafting Committee under the chairmanship of Dr. B.R. Ambedkar submitted the Draft Constitution to the President of the Constituent Assembly in February, 1948. Article 147 of the Draft Constitution submitted by the constitutional advisor was adapted with certain structural modifications as Article 175 of the Draft Constitution, however, in essence the provision remained the same.

ii. Debates of the Constituent Assembly on Article 200 of the Constitution

72. When Article 175 of the Draft Constitution, 1948 was taken up for consideration by the Constituent Assembly, certain amendments were moved by Dr. B.R. Ambedkar that came to be accepted, leading to the adoption of the draft Article 175 as Article 200 of our Constitution. The amendments were: a. To remove the expression “in his discretion” appearing in the first proviso to Article 175; b. To exclude Money Bills from the purview of the first proviso; c. To enable the Governor to return the bills in all the States irrespective of whether there was a unicameral or a bicameral legislature.

73. With a view to better understand the intention of the framers of the Constitution, it is of utmost importance that we turn the pages of the debates that took place in the Constituent Assembly.

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74. On the 30th of July, 1949, Dr. B.R. Ambedkar moved an amendment, as discussed aforesaid, for the substitution of the first proviso under draft Article 175, which later came to be successfully adopted by the Constituent Assembly. While moving for the substitution and highlighting that predominantly three key changes were sought to be made to the first proviso, he remarked that the words “in his discretion” under the draft Article 175 were sought to be deleted because it was felt that “in a responsible government, there can be no room for the Governor acting on discretion”3. Shri. Brajeshwar Prasad was not whole-heartedly in favor of the changes suggested to the first proviso and contended that they would strip the Governor of the power to veto a bill or reserve it for the consideration of the President, in his own discretion or initiative and he would be able to do so only when so advised by his Cabinet of Ministers. In his opinion, the change also meant that the Governor would not be able to veto a bill that has been passed twice by the Legislative Assembly, which he felt was not acceptable.

75. Shri. Brajeshwar Prasad acknowledged that there are two classes of cases in which a bill can be reserved for the consideration of the President – One, where a certain Article of the Constitution requires the same and two, when the Governor is advised by his Ministry to do so. However, he advocated for a third category i.e., where the Governor would possess the power, in his discretion, to veto a bill passed by the Legislature, irrespective of whether it was passed once or twice by it. He supported the vesting of discretion in the hands of the Governor so that he could veto unjust and unsound legislation while also ensuring that there is a check on potentially disruptive legislative tendencies. From his standpoint, the fear of disruptive legislation was not imaginary but real in our country and he advocated that his proposal was in consonance with the traditions of the centralized system of Government that existed in our country until independence. He was of the view that the parliamentary form of polity was a new experiment to the facts of life in our country and it was required to be moderated and regulated. Expressing his lack of confidence in the provincial Ministers, he contended that empowering the Governor to act in his discretion would not be so objectionable since the Governor is also the representative of the Government of

3 9, Constituent Assemb. Deb., (July 30, 1949) 41.

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India and it is by virtue of this position that his views must prevail over those of the State legislature.

76. On the other hand, during the course of the debate, Shri. Shibban Lal Saxena, addressed the practical realities of assigning such a discretion to the Governor who is a nominee of the President, especially when the party in power in the province may not be the same as the party in power at the Centre. In such a scenario, it was his opinion that, “it will introduce a very wrong principle to give the Governor this power to go against the express wish of the Assembly and even of the council”4.

77. Shri. T.T. Krishnamachari also emphasized that under the newly proposed draft Article 175, more specifically the first proviso, the Governor will not be exercising his discretion in the matter of referring a bill back to the House with a message. The Governor would exercise his power under the first proviso only upon the advice of his Council of Ministers. According to him, the first proviso was to be exercised in situations wherein the House has already accepted and endorsed a provision, but the Ministry was of the opinion that certain modifications are required to be made in the said provision. It is only when such an occasion arises that the procedure envisaged under the first proviso would be resorted to. The Council of Ministers would use the Governor to hold up further proceedings of the bill and remit it to the Lower House with the message informing the legislature about the modifications sought to be made to the bill by the Ministry. He drew attention to the words of Dr. Ambedkar on this aspect and stated as follows: “[...] If he construes that this Amendment is worse than the proviso in the draft Article and that it makes for further dilatoriness in the proceedings of the legislatures in the provinces or the States as the case may be, I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The governor is no longer vested with any discretion. If it happens that as

4 9, Constituent Assemb. Deb., (Aug. 1, 1949) 61.

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per Amendment No.17 the Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers. The provision has merely been made to be used if an occasion arises when the formalities envisaged in Article 172 which has already been passed, do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the governor to hold up the further proceedings of the Bill and remit it back to the Lower House with his message.”5

78. The first proviso, according to him, was therefore a saving clause which vested power in the hands of the Ministry to remedy a hasty action that they might have undertaken with respect to the bill in question, or, it could also be seen as providing some scope to the Ministry to take certain additional actions that the Ministry feels should be taken in order to meet the popular opinion reflected outside the House in some form or another. Therefore, the operation of the first proviso does not abridge the power of the Legislature or the Ministry responsible to it, rather, it further curtails the Governor’s power from the position that was envisaged in the original first proviso, which is now sought to be supplanted.

79. In light of the debate which took place as regards the substitution of the first proviso to draft Article 175, the amendment was put to vote and the same was successfully adopted by the Constituent Assembly.

80. On 17th of October, 1949, T.T. Krishnamachari moved an amendment that a second proviso to Article 175 also be added, which later came to be adopted by the Constituent Assembly. Dr. B.R. Ambedkar elucidated that the second proviso that was proposed to be moved, was a part of the Instrument of Instructions issued to the Governor of the provinces under the GoI, 1935. Paragraph 17 of the Instrument of Instructions read as follows: “Without prejudice to the generality of his powers as to reservation of Bills our Governor shall not assent in our name to, but shall reserve for the consideration of our Governor-General any Bill or any of the clauses herein

5 9, Constituent Assemb. Deb., (Aug. 1, 1949) 61.

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specified, i.e. (b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court as to endanger the position that that Court is, by the Act, designed to fulfil.”

81. Such a clause was initially supposed to be included in the Fourth Schedule that separately contained instructions to the Governors of the States. However, since it was considered unnecessary to have such a separate Schedule, this particular aspect was sought to be brought in as second proviso to the draft Article 175. A need to incorporate the second proviso was felt because the High Courts were placed under the legislative competence of the Centre as well as the States. In so far as the organization and territorial jurisdiction of the High Court was concerned, the power remained with the Centre. However, with regard to the pecuniary jurisdiction and the jurisdiction in relation to any of the matters which are mentioned under List II, the power rests with different States. Therefore, there could arise a scenario wherein the State legislature would enact a bill which would derogate from the powers of the High Court. For example, passing a bill that reduces the pecuniary jurisdiction of the High Court by raising the value of the suit that may be entertained by the High Court. This would be one method whereby the State legislature would diminish the authority of the High Court. Furthermore, a bill could also affect the subject-matter jurisdiction of a High Court. For example, in enacting any measure under any of the entries contained in List II, say, debt cancellation, it would be open for the provinces or States to say that the decree made by any such Court or Board shall be final and conclusive, and that the High Court should not have any jurisdiction in the matter at all. In light of such possibilities, it was felt that the second proviso to draft Article 175 must be added.

82. It was the opinion of Dr. B.R. Ambedkar that any such bill or Act as illustrated above would amount to a derogation from the authority that the Constitution confers or intends to confer upon the High Court. This is why it was felt necessary that before such a law becomes final, the President must be given an opportunity to examine whether such a law should be permitted to take effect or not. Such a shield was considered imperative keeping in mind the important constitutional position that the High Courts hold in adjudicating disputes. Dr. B.R. Ambedkar had emphasized on the importance of the second proviso as follows:

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“I, therefore, submit that in view of the fact that the High Court is such an important institution intended by the Constitution to adjudicate between the Legislature and the Executive and between citizen and citizen such a power given to the President is a very necessary power to maintain an important institution which has been created by the Constitution. That is the purpose for which this amendment is being introduced.”6

E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS POST THE COMMENCEMENT OF THE CONSTITUTION. If we could roll back History A century, let’s say, And start from there, I’m sure that we Would find things as to-day: In all creation’s cosmic range No vestige of a change” ~ Robert William Service

83. We are tempted to preface this part of our judgment with the enlightening words of Robert William Service, keeping in mind the history of our country which has been fraught with instances of friction in the federal polity from its inception, with the Governor occupying the center stage in this ongoing saga.

84. As the democratic polity of the country unfolded post-independence, the predominance of a single party at the union and provincial level gave way to emergence of new political factions and regional parties. As a consequence, the position of the Governor, which had mostly been latent during the era of single-party dominance, started to assume importance. Allegations also came to be levelled by a number of State Governments that the Governor in a number

6 10, Constituent Assemb. Deb., (Oct. 17, 1949) 394.

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of States was acting as an agent of the Central Government and the objectivity that was expected of the Governor was not being displayed, more particularly when it came to reservation of bills for the consideration of the President or recommendation for the imposition of emergency under Article 356. In light of the aforesaid, certain commissions came to be constituted which submitted their reports after undertaking exhaustive analysis of the working of the constitutional machinery prescribed for Centre-State relations. One of the key foci of these reports was the working of Articles 200 and 201 of the Constitution respectively and the scope of exercise of discretion by the Governors, which we deem appropriate to discuss hereinafter.

i. First Administrative Reforms Commission, 1966.

85. The First Administrative Reforms Commission (the “ARC”) was established in January 1966 by a resolution of the Ministry of Home Affairs to examine the public administration of the country and make recommendations for reform and reorganization where necessary. An aspect of this exercise was the examination of Centre-State relations particularly with respect to the need for national integration, and for maintaining efficient standards of administration throughout the country.

86. While examining the various facets of Centre-State relations, the Commission found it apposite to discuss the role of the Governor in the political context which existed back then. Taking note of the skirmishes between the State governments and Governors, the Commission was of the view that the Governor’s office ceased to be merely ornamental and ceremonial. This changed role demanded a scrutiny of the discretionary powers of the Governor.

87. As the discretionary powers of the Governor affect some of the vital issues in the functioning of democratic governments in the States, the ARC underscored the importance of evolving guidelines to enable the exercise of such discretionary powers for the purpose of preserving and protecting democratic values. It was noted that such guidelines would serve the purpose of securing uniformity in action and eliminate all suspicions of partisanship and arbitrariness.

88. The ARC, therefore, recommended the following:

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“Recommendation 9: We recommend: Guidelines on the manner in which discretionary powers should be exercised by the Governors should be formulated by the Inter-State Council and on acceptance by the Union issued in the name of the President. They should be placed before both Houses of Parliament.”

89. However, no such guidelines have been formulated by the Inter- State Council till date and none of the Commissions on Centre-State relations constituted thereafter made any recommendations on the issuance of guidelines for exercise of discretion by the Governor.

ii. Rajamannar Commission, 1971

90. The Rajamannar Commission was set up by the Government of Tamil Nadu in 1969 under the chairmanship of Dr. P.V. Rajamannar to look into the question regarding the relationship that should subsist between the Centre and States in a federal set-up. The Commission noted that in the changed political circumstances, there can be no dispute regarding the fact that the Governors have a positive role to play in the stability and progress of States. This requires that the authority of the Governor should be clearly spelt out and the Governors should no longer consider themselves to be instruments of the Centre under compulsion to act on its directions and in its political interests.

91. One of the questions on which the Commission addressed itself was whether the Constitution provides for the exercise of any power by the Governor in his discretion that is, whether the Governor could exercise any of his functions without consulting the Ministry or contrary to the aid and advice tendered by the Council of Ministers.

92. To answer this question, the Commission adverted to the history of the making of the Constitution and concluded that the Constitution does not provide for the issue of any instructions to the Governor, nor does it vest any discretionary powers in express terms in the Governor, except in relation to certain specified matters. While referring to certain judicial pronouncements of this Court as well as Granville Austin’s seminal work on the Indian Constitution, the Commission opined that the discretion of the Governor must be limited to those matters

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in respect of which there are express provisions in the Constitution. The relevant portion of the report is reproduced below: “6. The question as to the discretionary functions of the Governor was considered by the Supreme Court in Ram Jawaya v. State of Punjab (A.I.R. 1955 8.C. 549 at page 556). The Supreme Court held that the Governors were constitutional heads of the executive, and that real executive power was vested in the Council of Ministers. A similar view has been expressed by the Supreme Court in T. M. Kanniyan v. 1.T.O., Pondicherry (A.I.R. 1968 S.C. 687). Again, Granville Austin in his book The Indian Constitution— Cornerstone of a Nation has categorically stated that the Governor occupies the same position as the English Monarch and that the Governor has to act in accordance with the advice of his Cabinet in all matters. To place the matter beyond doubt, Article 163 (1) may be modified making it clear that the reference to discretion is only in relation to the matters in respect of which there are express provisions, e.g., Assam.” (Emphasis supplied)

93. The Commission observed that while exercising his functions, the Governor should not be under any pressure from an external authority. To explain the position of discretionary powers of the Governor, the Commission referred to the speech of the former Vice President of India, Shri G.S. Pathak, which reads thus: “He is the constitutional head of the State to which he is appointed, and, in that capacity, he is bound by the advice of the Council of Ministers of the State except in the sphere where he is required by the Constitution, expressly or impliedly, to exercise his discretion. In the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre. ‘There may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers. In the sphere in which he is required by the Constitution to exercise his discretion, it is obvious again that it is His discretion and not that of any other authority and therefore

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his discretion cannot be controlled or interfered with by the Centre.” (Emphasis supplied)

94. However, in the same vein, it was also noted that the Governor has to function in a dual capacity as (1) the appointee of the central government; and (2) the constitutional head of the State. This is because the Central Government retains the power to appoint and remove the Governor, therefore, the Governor cannot but look to the Central Government for guidance in the discharge of his duties.

95. The Commission was of the opinion that it is necessary to indicate at least a broad outline of the principles that should guide the Governor in the exercise of discretion, if any, vested in him. It was observed that the evolution of rules and guidelines in this respect is especially important in order to reconcile the actions of the Governor in his capacity as an agent of the Centre and the head of the State Executive.

96. Having discussed the discretion of the Governor in matters of constitutional decision-making at length, the Commission recommended that a specific provision should be inserted in the Constitution to enable the President to issue Instruments of Instructions to the Governors laying down guidelines or principles with reference to which the Governor should act including the occasions for the exercise of discretionary powers.

iii. Sarkaria Commission

97. In June 1983, the Central government headed by the former Prime Minister of India, Ms. Indira Gandhi, formally constituted a commission to examine and review the working of the arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and to recommend such changes or other measures as may be deemed appropriate. The said commission was formed under the chairmanship of a former judge of this Court, Justice R.S. Sarkaria and hence, came to be known as the Sarkaria Commission.

98. The Sarkaria Commission was enjoined with the task of reviewing the Centre-State relationship and consider the importance of unity and integrity of the country for promoting the welfare of the people. One of the facets of such review was to discuss the scope of the role of the Governor and its impact on the federal polity of India.

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99. For a number of years after the independence of India, the political scene was dominated by a single party and there was little occasion for strife between the central and state governments. The role of the Governor, therefore, remained latent. However, post-1967, the emergence of new regional political parties led to a discord between the central government and those state governments that came to be led by such new regional parties. These developments engendered political instability in several states, as a result of which, the Governors were called upon to exercise their discretionary powers more frequently, particularly in recommending President’s rule and in reserving State bills for the consideration of the President.

100. The role of the Governor in giving assent to State bills, withholding assent therefrom or reserving such bills for the consideration of the President, thus, assumed importance. By virtue of Articles 200 and 201 of the Constitution respectively, the office of Governor became a major stakeholder for the maintenance of a cordial relationship between the central and state governments. The Sarkaria Commission was, therefore, tasked with providing recommendations regarding the interpretation of the said Articles and amendments therein to strengthen the federal polity of India.

101. To the limited extent of studying the issues arising from the exercise of powers under Articles 200 and 201 respectively, the Commission addressed itself on the following broad points: (i) Scope of Governor’s discretion under Article 200; (ii) Interplay of Articles 200 and 254 respectively of the Constitution; (iii) Scope of Union Executive’s discretion under Article 201; (iv) Impropriety of conditional assent by the President; (v) Essentials for a “reference” of State bills to the President for his consideration; (vi) Delays in disposal of State bills; (vii) Withholding of assent by the President.

102. A discussion of the recommendations of the Commission in this regard would be beneficial to our examination of Articles 200 and 201 respectively and the role of the Governor in the contemporary federal polity.

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a. Scope of Governor’s Discretion Under Article 200

103. The Commission observed that the rule is that the Governor shall perform his functions on the aid and advice of the Council of Ministers of the State and the exercise of discretionary powers by him is the exception. The Commission envisaged that discretionary powers of reservation of a bill under Article 200 should be exercised by the Governor only in rare cases where a bill is patently unconstitutional in his opinion. However, the Governor should not act contrary to the aid and advice of the Council of Ministers merely because he, in his personal capacity, does not favour the policy embodied in the bill. The relevant observations of the Commission are reproduced below: “5.6.13 We are, therefore, of the view that: (i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional case, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions. (ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.”

104. According to the Commission, the scheme of the Constitution indicates that the Governor’s opinion at best, is persuasive. The Governor cannot, in any circumstance, exercise dictatorial powers to override or veto the decisions or proposals of his Council of Ministers. The scope of discretionary powers should be construed in the context of a parliamentary democracy with a responsible government. In such a form of government, the role of a formal head of the State cannot be enlarged at the cost of the real executive, which enjoys the confidence of the people as it is responsible to the State legislature.

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105. Discretion, in exercise of powers under Article 200, therefore, should be dictated by reason, actuated by good faith and tempered by caution. Discretionary functions should be performed in public interest and cannot be discharged at the dictation of any outside authority unless so authorized by and under the Constitution.

106. While addressing suggestions of some State governments that the discretionary powers of the Governor must be curtailed or removed as it presents a potential threat to the autonomy of the States, the Commission observed that the makers of the Constitution advisedly refrained from putting such discretionary powers in a straitjacket rigid definition. It noted that the Constitution is ever evolving and the ways in which its provisions and principles may be tampered with or circumvented, cannot be foreseen. Therefore, the office of the Governor should be afforded enough flexibility to react in any situation and his discretion to approach a matter cannot be pre-determined.

b. Interplay of Articles 200 And 254 respectively of the Constitution.

107. Article 246(2) endows the Parliament as well as the State legislatures with the competence to legislate on entries under List III i.e., the concurrent list. The provision under Article 254 is appurtenant to the concurrent exercise of legislative competence by the Parliament and State legislature insofar as there is any inconsistency or repugnancy between the laws of the respective legislatures.

108. Article 254(1) saves the power of the State legislatures to make laws with respect to matters in the concurrent list from being automatically superseded by the operation of the doctrine of repugnancy. Article 254(2) allows a law enacted by the State legislature and repugnant to the central law on the same subject-matter, to operate and prevail in that State provided that such State law receives the assent of the President.

109. The Commission highlighted that clause (2) of Article 254 is applicable only when the following two conditions are cumulatively met: (a) There is a valid Union law on the same subject-matter occupying the same field in the Concurrent List to which the State legislation relates. (b) The State legislation is repugnant to the Union law. That is to say, there is a direct conflict between the provisions of the two

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laws, or the Union law is intended to be an exhaustive code on the subject-matter in question. It is upon satisfaction of both these conditions that the Governor can reserve a bill for Presidential consideration under Article 254(2).

110. It was noted by the Commission that the assent by the President to the State bills had been withheld on certain occasions on the ground that the Union was contemplating a more comprehensive legislation on the same subject matter. However, withholding of assent on such a premise at the level of the Union may unnecessarily delay or defeat the measures sought to be taken by the State legislature. Since the Parliament retains the power to amend, vary or repeal such a State legislation, even after its enactment, by passing a subsequent law inconsistent therewith, the Commission recommended that Presidential assent should not ordinarily be withheld on the ground that the Union is contemplating a comprehensive law in future on the same subject-matter.

c. Scope of Union Executive’s Discretion under Article 201

111. As per the report of the Commission, a State bill, once reserved for the consideration of the President (upon the aid and advice of the Council of Ministers), is made subject to the procedure prescribed under Article 201 and the Union Executive is entitled to examine it from all angles such as, inter alia, conformity to legislative or executive policy of the Union, harmony with the scheme and provisions of the Constitution, vires of the bill, etc.

112. On the question of the Union Executive’s discretion to withhold assent to a State bill on the ground of non-conformity with its policy, the Commission sounded a note of caution saying that policy considerations should not ordinarily be treated as a valid ground for withholding Presidential assent. Article 201 confers supervisory powers on the Union Executive to enable it to secure a broad uniformity across central and state legislations in the interests of the social and economic unity of the country. However, the said provision cannot act as a measure for the Union Executive to bring to a grinding halt a State bill by withholding assent thereto if such a bill does not conform to its policy in general.

113. Further, the Union Executive is required to exercise utmost caution, circumspection and restraint in the exercise of supervisory powers

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under Article 201, especially in respect of the bills on subject matters that fall within the State List. In this regard, the Commission recommended that as a matter of convention, the President should not withhold assent only on consideration of policy differences on matters relating, in pith and substance, to the State List, except on the grounds of patent unconstitutionality.

114. The Commission did not make any specific prescription in respect of Article 143 of the Constitution, which enables the President and by extension, the Union Council of Ministers to seek the opinion of the Supreme Court in respect of bills which may be deemed to be unconstitutional and left the decision up to the President to make such a reference in appropriate cases.

d. Impropriety of Conditional Assent by the President

115. The Commission noted that the scheme of the Constitution providing for reservation of State legislations for the consideration and assent of the President, is intended to subserve the broad purpose of cooperative federalism in the realm of Union-State legislative relations. Therefore, the practice of according assent to a State bill by the President on the reciprocal assurance that the changes suggested by him (or the Union Executive) will be carried out by way of an ordinance, was not considered to be ideal especially when there exists a constitutional remedy under the proviso to Article 201 itself.

116. Since, conditional assent may become a tool for the Centre to dictate its policies to the States by attaching conditions to Presidential assent, the Commission, in cognizance of the impropriety of such a practice, recommended that in cases where the Union Government is of the opinion that some amendments to a State bill are essential before it becomes a law, such bill should be returned through the Governor to the State legislature for reconsideration in terms of the proviso to Article 201.

e. Essentials for a “Reference” of State Bills to the President for his Consideration

117. The Commission, cognizant of the misgivings and irritations in Union- State relations due to delays in the process of securing Presidential assent, recommended that the procedure of making a reference to the President by the State Government through the Governor and the consideration thereof by the Union Government must be

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streamlined. It was also endorsed that the Governments at both the Centre and State level may benefit from a prior consultation at the stage of drafting of the bill itself and prescribing time-limits for disposal, which ought to be made convention and practice.

118. As regards the suggestion of streamlining the procedures involved in reserving a State bill for consideration of the President, the Commission recommended that every reference from the State should be complete and clearly established. Such reference should set out precise material facts, points for consideration and the reason for making a reference to the President. Accordingly, the Commission recommended the following information to be necessarily provided for ensuring that the reference to the President is self-contained: “5.15.01— To facilitate its speedy examination by the Union Executive, every reference of a State Bill from the State should be self-contained, setting out precisely the material facts, points for consideration and the ground on which reference has been made. It should contain information on the following points: a. The relevant provisions of the Constitution attracted or applicable, with reasons. b. If the reference is made under Article 254(2), clear identification of the provisions of the Bill which are considered repugnant to, or inconsistent with, the specific provisions of a Union law or an existing law. c. Urgency, if any, of passing the law within a certain time-limit. d. A clear statement that the Bill is being reserved as per the advice of the Council of Ministers, or in the exercise of his discretion by the Governor, with reasons for the same. e. A lucid explanatory note on the intended policy behind the legislation instead of merely referring to the objects and reasons of the Bill. f. An indication whether the Bill was sent for prior scrutiny of the Union Government, and if so, deviations, if any, from the prior reference.” (Emphasis supplied)

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f. Delays in Disposal of State Bills

119. The question whether there was a requirement of introducing time- limits in Article 201 was necessary or not was also looked into by the Commission. It was reiterated that streamlining the procedure of reserving a State bill for Presidential consideration and enabling a mechanism for high-level discussions between the Union and State at the stage of drafting such bill may effectively reduce procedural delays at the level of the Union Government. Nevertheless, it was recommended that the Union and State Governments should adopt definite timelines for processing State bills and disposing of their references to the President.

120. With regard to prescription of such timelines, the Commission proposed the following timelines to be treated as salutary conventions:

STAGE OF THE BILL PROPOSED TIMELINE i. Reserving the bill for consideration of I m m e d i a t e l y u p o n the President, by the Governor under presentation of the bill to Article 200 (on the aid and advice of the Governor. the State Council of Ministers). ii. Reserving the bill for consideration of Within one month from the the President, by the Governor under date on which the bill is Article 200 (in exercise of his discretion presented to the Governor. in exceptional circumstances). iii. Decision on the bill by the President Within four months from the under Article 201 (in case the proviso date on which the reference to Article 201 is not being exercised). is received by the Union Government. iv. Returning the bill for consideration Within two months from the of the State legislature in case the date on which the original proviso to Article 201 is exercised by reference is received by the the President. Union Government. v. Decision on the bill by the President, Within four months of once received with clarifications from the date on which the the State legislature under proviso to reconsidered bill is received Article 201. by the Union Government.

table as extracted; see Source PDF

121. With a view to ensure that the timelines so suggested are not frustrated by lack of clarity and comprehensiveness in a reference, the Commission underscored the importance of a self-contained communication by the President to the State legislature for clarification