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

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or reconsideration of the bill. It was emphasized that clarifications to be sought by way of the proviso to Article 201 should not be piecemeal.

122. While the Commission noted the significance of clear timelines for the exercise of powers under Articles 200 and 201 respectively, it did not recommend any amendments to the said Articles for introducing concrete time periods within the constitutional scheme and left its recommendations in this regard at the stage of conventions only.

g. Withholding of Assent by the President

123. As regards the withholding of Presidential assent, the Commission laid great emphasis that the Union Government ought to communicate to the State government, the reasons therefor. It was noted that the Union Government should enter into the practice of discussing the issues present in the bill with the State Government and making an effort to present its point of view to the State Government with reasons.

h. Recommendations given by the Commission

124. Before concluding the discussion on the aspect of reservation of bills by the Governor for consideration of the President, the Commission noted that needless reservation of bills should be avoided. The constitutional scheme does not envisage indiscriminate reservation of bills, especially when it is being done in his discretion, as the same would be subversive of the federal principle and the supremacy of the State legislature.

125. The Commission classified State bills to be reserved for the consideration of the President as follows: “5.1.05 State Bills reserved for President’s consideration under the Constitution, may be classified as follows: — i. Bills which must be reserved for President’s consideration In this category come Bills — (i) which so derogate from the powers of the High Court, as to endanger the position which that Court is by this Constitution designed to fill (Second Proviso to Article 200);

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(ii) which relate to imposition of taxes on water or electricity in certain cases, and attract the provisions of Clause (2) of Article 288; and (iii) which fall within clause (4) (a) (ii) of Article 360, during a Financial Emergency. ii. Bills which may be reserved for President’s consideration and assent for specific purposes (i) To secure immunity from operation of Articles 14 and

19. These are Bills for— (a) acquisition of estates, etc. [First Proviso to Article 31A(I)]; (b) giving effect to Directive Principles of State Policy (Proviso to Article 31C). (ii) A Bill relating to a subject enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President’s assent in terms of Article 254(2). (iii) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the Proviso to Article 304(b) read with Article 255. iii. Bills which may not specifically fall under any of the above categories, yet may be reserved by the Governor for President’s consideration under Article 200.” (Emphasis supplied)

126. The Commission recommended that bills should be reserved only if required for specific purposes falling in the first two classes as extracted hereinabove.

iv. Punchhi Commission

127. Another Commission on Centre-State relations was constituted by the Government of India in 2007 under the chairmanship of Justice Madan Mohan Punchhi, the former Chief Justice of India. The Commission was tasked with the mandate of reviewing the existing arrangements between the Union and States as per the Constitution

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of India in regard to powers, functions and responsibilities in all spheres including legislative relations, administrative relations, role of Governors, emergency provisions, etc. and recommending such changes as may be appropriate keeping in view practical difficulties, growing challenges of ensuring good governance and the need for strengthening the unity and integrity of the country.

128. The Commission, inter alia, looked at the original scheme of the Centre-State relations as laid down by the Constitution, examined the friction points in the working thereof and reviewed the adequacy of the constitutional arrangements for promoting social welfare and good governance. One aspect of this study involved looking minutely into the role of the Governor in the federal polity of India. The Commission noted that the role of the Governor became important as he had to balance the political considerations between the Centre and State and be as impartial as possible.

129. However, as regional political powers grew at the State level, the role of the Governor came to be a point of contention between the Centre and States with the latter leveling allegations of partiality and lack of objectivity in exercise of the Governor’s discretionary powers. As a result, the Commission was enjoined with the task of providing recommendations for better working of the office of the Governor.

a. Role of the Governor

130. The Commission observed that the nature and scope of rights and powers of the Governor should be understood in the context of a Cabinet system of government. Under such system, the Governor performs a multi-faceted role. First, as constitutional head of the State, he has a right to be consulted, to warn and encourage. In performance of this role, the Constitution makers ideated the office of Governor to perform the role of a “a friend, philosopher and guide” to his Council of Ministers. Secondly, the Governor functions as a sentinel of the Constitution and acts as the Union’s representative in the State. As observed by this Court in Rameshwar Prasad & Ors. v. Union of India reported in (2006) 2 SCC 1, the Governor discharges “dual responsibility” to the Union and State.

131. Further, the Constitution affords the Governor only a persuasive role and not dictatorial powers to override or veto the decisions or proposals of his Council of Ministers. The Commission observed that

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the Governor, at best, has powers of giving advice or counselling for further reflection of the decision taken by the Council of Ministers. The Governor only flags a need for caution for the purpose of bridging the understanding between the Government and opposition (if there are different governments at the central and state level).

132. The Governor is not amenable to the directions of the Union government, nor does the Constitution make him accountable to the Centre for the manner in which he carries out his functions and duties. The office of Governor is an independent constitutional office. The Governor, by virtue of Article 163, however, is bound by the aid and advice of the State Council of Ministers. Therefore, in the event of a conflict between the aid and advice of the State Council of Ministers and the dictates of the Central Government, the scheme of the Constitution indicates that the Governor must adhere to the former.

133. With the broad tenets of the role of the Governor under the constitutional scheme, the Commission, while appraising the existing framework of Centre-State relations, observed that a major point of friction between the Centre and States is the power of the Governor to reserve any State bill for the consideration of the President, sometimes even for an indefinite period.

b. Discretionary Powers of the Governor

134. Upon a perusal of Article 163(2), the Commission was of the view that the said provision gives the impression that the Governor has a wide and undefined area of discretionary powers. However, the scope of the discretionary powers of the Governor has to be narrowly construed. The language of Article 163(2) cannot be taken to mean that the Governor has a general discretionary power to act against the aid and advice of the Council of Ministers.

135. In continuation to the Sarkaria Commission’s views on the question of discretionary powers of the Governor, the Punchhi Commission report also asserts that the area for the exercise of discretion is limited and even in this limited area, the Governor’s choice of action should neither be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered with caution.

136. The Commission further emphasized the necessity of prescribing time limits for the exercise of powers under Articles 200 and 201

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respectively in order to ensure that discretionary powers are not exercised by the Governor or the President in a manner that undermines the State legislature and the will of the people.

c. Expediency in Disposal of Bills – Timelines Suggested by the Report of the Commission

137. The Commission suggested that definite timelines ought to be adopted as salutary conventions for the Governor to either provide assent or reserve the bill for the consideration of the President. Similarly, there should be a time limit for the President to take a decision on the State bill under Article 201 of the Constitution. The Commission was of the view that concrete timelines are sine qua non for the exercise of powers under Articles 200 and 201 respectively so as to avoid dissensions between the Central and State governments.

138. The Commission noted that the substantive part of Article 200 does not stipulate time period within which the Governor has to either assent, withhold assent or reserve the bill for Presidential consideration. The requirement of expediency is incumbent upon the Governor only when he decides to return the bill to the State legislature for reconsideration. The same was considered to be evident from the expression “as soon as possible”.

139. The Commission noted that while the expression “as soon as possible” is mentioned in Article 200 albeit only in the first proviso thereof, there is no such compulsion on the President under Article 201. As a result, the President or the Union Government may kill the bill by not taking a decision on the same, sometimes for the entire duration of the State legislature. This increases the scope for abuse of discretion by the Union government based on political considerations particularly when the ruling party in the State concerned is different from the one enjoying power at the Union level. The lack of a reasonable timeline allows the executive fiat to make inroads into the legislative power of the State thereby thwarting the democratic will of the State legislature. Such invasion of the powers of the State legislature by the Union Executive is questionable in the context of ‘basic features’ of the Constitution.

140. Therefore, the Commission suggested that a period of six months should be prescribed in Article 201 for the President to decide on

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assenting or withholding assent to a bill reserved for consideration of the President. In case the President on the aid and advice of the Union Council of Ministers, is unable to give assent to a State bill under Article 201, it is desirable for him to make a reference to the Supreme Court under Article 143 for an opinion. Such reference should be done as a matter of practice in order to avoid allegations of political bias, while securing the dignity and authority of the State legislature.

d. Recommendations

141. Having considered the challenges in the exercise of powers under Articles 200 and 201 respectively, the Commission reiterated the recommendations of the National Commission to Review the Working of the Constitution (“NCRWC”), which are reproduced hereinbelow: “After considering the suggestions given by the Sarkaria Commission, the National Commission to Review the Working of the Constitution gave the following recommendations: (a) Prescribe a time-limit - say a period of four months - within which the Governor should take a decision whether to grant assent or to reserve it for the consideration of the President; (b) Delete the words “or that he withholds assent therefrom”. In other words, the power to withhold assent, conferred upon the Governor, by Article 200 should be done away with; (c) If the Bill is reserved for the consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under Article 143 (as it happened in the case of Kerala Education Bill in 1958); (d) When the State Legislature reconsiders and passes the Bill (with or without amendments) after it is returned by the Governor pursuant to the direction of the President, the President should be bound to grant his assent;

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(e) To provide that a “Money Bill” cannot be reserved by the Governor for the consideration of the President; (f) In the alternative it may be more advisable to delete altogether the words in Article 200 empowering the Governor to reserve a Bill for the consideration of the President except in the case contemplated by the second proviso to Article 200 and in cases where the Constitution requires him to do so. Such a course would not only strengthen the federal principle but would also do away with the anomalous situation, whereunder a Bill passed by the State Legislature can be ‘killed’ by the Union Council of Ministers by advising the President to withhold his assent thereto or just by cold-storaging it.” (Emphasis supplied)

142. The report of the Punchhi Commission advocated for the immediate implementation of the above-mentioned recommendations by way of a Constitutional Amendment.

F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS

143. The tenets of parliamentary democracy demand that while the head of state must act on the advice of ministers, the ministers, in turn, must uphold their responsibility to the people when providing that advice. Indeed, the very raison d’être of a democratic government is to uphold the primacy of the Parliament by ensuring executive accountability. This has been aptly put forth by Nicholas Barber, Professor of Constitutional Law and Theory at the Oxford University, in his work ‘Can Royal Assent Be Refused on the Advice of the Prime Minister?’7 wherein he argues: “The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law. But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister. In short, when presented with a bill that has

7 Nicholas Barber, Can Royal Assent Be Refused on the Advice of the Prime Minister?, UK Constitutional Law Association (Apr. 7, 2025, 9:45 PM), https://ukconstitutionallaw.org/2013/09/25/nick-barber-can- royal-assent-be-refused-on-the-advice-of-the-prime-minster/.

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passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers. There is no room for discretion. On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.”

a. United Kingdom

144. The position in the United Kingdom is that once a bill has passed through all parliamentary stages in both Houses, it is poised for the conferment of ‘royal assent’. Historically, the Sovereign granted assent to bills in person in the House of Lords, attended by the Lords Commissioners. This formal ceremony was known as the ‘Royal Assent ceremony’. The Royal Assent ceremony continued until 1967, when the British Parliament passed the Royal Assent Act wherein the requirement of grant of assent in person by the monarch was made voluntary. Although granting assent is a personal prerogative of the monarch, yet it has long been an established convention that the monarch does not withhold it for a bill that has received approval from both Houses. The process of Royal Assent comprises two stages: first, the signification of the royal assent to a bill via the Royal Sign Manual on Letters Patent issued under the Great Seal of the Realm; and secondly, the communication of the King’s Assent to both Houses of Parliament. In the United Kingdom (UK), royal assent is regarded as a formality and has not been refused to a bill since Queen Anne’s reign in 1707.

145. In Parliament of the UK, the procedure for obtaining Royal Assent begins with officials in the Public Bill Office of the House of Lords that manages and assists the processes relating to the House’s consideration of public legislation. First, a list of bills is prepared by the Clerk of the Parliaments. Thereafter, once a date for Royal Assent has been set, all the bills approved by both Houses are presented before the monarch for assent. In this regard, the monarch has no power to withhold assent to a bill, regardless of any instructions from the Government or anyone else.8 In Scotland, a period of four weeks is allowed before a bill is presented to the Queen for assent, during which any legal objections may be raised.

8 David Torrance, Royal Assent, House of Commons Library (Feb. 26, 2024), HTTPS:// RESEARCHBRIEFINGS.FILES.PARLIAMENT.UK/DOCUMENTS/CBP-9466/CBP-9466.PDF.

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146. The only ground on which assent may be withheld, that too solely on ministerial advice, is if the bill has failed to comply with mandatory procedural requirements or if there has been a change in government between the bill’s approval and its presentation for assent. Section 4 of the Judicial Committee Act, 1833 provides that the Sovereign may refer a bill to the Judicial Committee of the Privy Council for an advisory opinion on whether such bill contravenes a fundamental constitutional principle. However, the position in the UK does not clarify whether the Sovereign can initiate such a referral independently.

b. Canada

147. Canada’s Royal Assent ceremony traces its origins to the United Kingdom. Traditionally, once a bill was passed in identical form by both the Senate and the House of Commons, the Governor General, as the Crown’s representative, attended the Parliament to provide Royal Assent to such bill. In absence of the Governor General, a Justice of the Supreme Court of Canada acting as Deputy to the Governor General is presented the bills for Royal Assent. The Governor General signs a Declaration of Royal Assent, witnessed by the Clerk of the Parliaments.

148. Section 3 of the Royal Assent Act, 2002 (Can) provides that assent may be given ‘in Parliament assembled’ or through a written declaration, provided it is witnessed by more than one member from each House. The Act stipulates that the Royal Assent must be given in the Senate Chamber at least twice a year and for the first appropriation bill of each session of the Parliament. In all other cases, such assent may be granted by the Governor General or her Deputy by written consent. At the provincial level, assent is given by the Lieutenant Governor, who is appointed by the Governor General. As per Section 57 of the Constitution Act, 1867, when bills are reserved for Queen’s pleasure, she acts upon ministerial advice rather than the advice of the Houses.

149. The Supreme Court of Canada in Reference Re Amendment of the Constitution of Canada, reported in 1981 SCC OnLine Can SC 77, recognized that, by convention, neither the Queen nor the vice-regal representative (equivalent of a Governor in India) may, on their own, refuse assent to a bill passed by both Houses of the Parliament on the grounds of opposition to or disapproval of its policy. The relevant portion of the judgment in reference reads thus:

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“As a matter of law, the Queen, or the Governor General or the Lieutenant Governor could refuse assent to every bill passed by both Houses of Parliament or by a Legislative Assembly as the case may be. But by convention they cannot of their own motion refuse to assent to any such bill on any ground, for instance because they disapprove of the policy of the bill. We have here a conflict between a legal rule which creates a complete discretion and a conventional rule which completely neutralizes it. But conventions, like laws, are sometimes violated. And if this particular convention were violated and assent were improperly withheld, the courts would be bound to enforce the law, not the convention. They would refuse to recognize the validity of a vetoed bill. This is what happened in Gallant v. The King, a case in keeping with the classic case of Stockdale v. Hansard where the English Court of Queen’s Bench held that only the Queen and both Houses of Parliament could make or unmake laws. The Lieutenant Governor who had withheld assent in Gallant apparently did so towards the end of his term of office. Had it been otherwise, it is not inconceivable that his withholding of assent might have produced a political crisis leading to his removal from office which shows that if the remedy for a breach of a convention does not lie with the courts, still the breach is not necessarily without a remedy. The remedy lies with some other institutions of government; furthermore it is not a formal remedy and it may be administered with less certainty or regularity than it would be by a court.”

150. In Galati v. Governor-General of Canada, reported in [2015] FC 91, the Federal Court of Canada was faced with the question of whether the grant of royal assent by the Governor General to the Strengthening Canadian Citizenship Act, 2014 could be set aside by the court on the ground that enactment of the same was outside the legislative competence of the Parliament. It was contended by the applicants that the Governor General exceeded the scope of his discretion as well as his authority under the Royal Assent Act of Canada by assenting to the said bill. The Federal Court, however, dismissed the application and held that the Governor General’s act of affixing royal assent to the bill was a legislative act. Therefore, the issue of whether the Governor General exceeded his constitutional

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authority in granting royal assent to the said bill was not justiciable. The relevant portion of the judgment is reproduced below for ready reference: “The courts exercise a supervisory jurisdiction once a law has been enacted. Until that time, a court cannot review, enjoin or otherwise engage in the legislative process unless asked by way of a reference framed under the relevant legislation. To conclude otherwise would blur the boundaries that necessarily separate the functions and roles of the legislature and the courts. To review the Governor General’s act of granting royal assent, as the applicants request, would conflate the constitutionally discreet roles of the judiciary and the legislature, affecting a radical amendment of the Constitution Act, 1867 and the conventions which underlie our system of government, notably the right of Parliament to consider and pass legislation. The applicants’ arguments turn this principle on its head. On the theory advanced, the judiciary would adjudicate on the constitutionality of proposed legislation before it became law. That line, once crossed, would have no limit.”

151. The views of the Federal Court in Galati (supra) that the grant of royal assent by the Governor-General was a legislative act and hence, non-justiciable was in line with the view of the Court in Gallant v. The King, [1949] 2 DLR 425 wherein it was noted that the Lieutenant-Governor is a part of the legislature and the act of providing royal assent is also a legislative action.

c. United States of America

152. The Constitution of the United States, more particularly, Article I, Section 7, Clause 2 thereof states that once a bill has been passed by the House of Representatives and the Senate, it must be presented to the President. If the President approves, he may sign the bill; otherwise, he may return it with his objections for reconsideration. If, after reconsideration, two-thirds of both the Houses passes the bill, it becomes law. Further, if the President does not sign a bill within ten days of presenting the same, while Congress is in session, the bill automatically becomes law. Therefore, in this limited circumstance, the concept of pocket veto is not available to the President. However, if Congress adjourns while the bill is awaiting

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assent and the President does not sign the bill within ten days, the bill does not become law.

d. New Zealand

153. The colonial legislative framework of New Zealand under the Constitution Act, 1852, vested structured discretion in provincial authorities while maintaining the supremacy of the Crown. Section 27 of the Constitution Act, 1852 stipulated that every bill passed by the Provincial Council must be presented to the Superintendent who was an elected head of each Provincial Council, for the assent of the Governor who was the representative of the monarch. The Superintendent, in his discretion, could have either granted assent on behalf of the Governor or withheld assent or reserved the bill for the Governor’s pleasure. For a bill to become law, Superintendent had to signify Governor’s assent. Further, her Majesty, with the advice of her Privy Council could issue instructions to the Governor to guide him in exercise of his powers to assent to, dissent from, or reserve bills for her Majesty’s pleasure. The Governor was required to act in obedience to these instructions.

154. By the introduction of the Constitution Act, 1986, the Sovereign began to act on the advice of the Executive Council which is the part of the executive branch of government. It states that a bill passed by the House of Representatives becomes law when the Sovereign or the Governor-General grants assent. Section 3 of the Act states that the power conferred on the Governor-General are royal powers exercised on behalf of the Sovereign. These powers may be exercised either by the Sovereign in person or by the Governor-General. Additionally, any reference in an Act to the Governor-General in Council also includes the Sovereign acting with the advice and consent of the Executive Council. The Prime Minister-designate is appointed as the Executive Councillor and he advises the Governor-General to appoint other Councillors. Section 3A removes any discretion of the Sovereign or the Governor-General, stating that they may exercise a power on the advice and with the consent of the Executive Council.

e. Australia

155. The structure of governance in Australia reflects a nuanced distribution of the Queen’s powers through her representatives at both national

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and state levels. The Queen of Australia is the formal Head of State. At the national level, the Queen’s powers and functions qua the Government of Australia are exercised by the Governor-General of Australia. At the State level, her powers are exercised by the Governor of the State. As per Section 2(1) of the Constitution Act, 1889, the legislative powers were vested in the Sovereign and exercised by her colonial Governors, subject to the advice of legislators. At the national level, Governor-General is not given ministerial advice on assent, the Presiding Officer of the House requests for assent and the Attorney General provides a certificate to the Governor-General regarding whether the bill needs to be reserved for the Queen’s assent or regarding any corrections.9

156. It is said that the role of the Governor-General is to ensure due process – that the bill was passed in Houses following the procedure. He is not concerned with the contents of the legislation as the act of the Governor-General is executive. However, in the context of Governor (state level), the Court of Appeal in Eastgate v. Rozzoli, reported in (1990) 20 NSWLR 188, noted that while giving assent the Australian State Governor acts as a constituent part of the Parliament. If a bill is reserved for Queen’s pleasure, she acts upon the advice of Australian Commonwealth Ministers. The power to refer bills back to Parliament can be exercised only upon ministerial advice. At the states, the parliamentary officers seek State Governor’s assent. Ordinarily, the State Governors assent to bills without any ministerial advice, only South Australia endeavors to provide executive advice to the Governor.

f. Ireland

157. Ireland’s constitutional order provides a unique provision enabling the President to refer bills to the Supreme Court for its view on the constitutionality of the bills. Article 26 of the Constitution of the Ireland confers a power on the President, who, after consultation with the Council of State, may refer any bill to the Supreme Court for a decision on whether any provisions of the bill are repugnant to the Constitution. Such reference must be within seven days from the presentation of the bill to the President. If the Supreme Court holds that any provision of the bill is repugnant to the Constitution, the President declines to sign such bill.

9 Dept. of Prime Minister & Cabinet, Austl. Govt., Legislation Handbook (2017).

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g. Republic of Singapore

158. The Constitution of Singapore establishes a structured framework for the exercise of presidential discretion, setting clear time limits for decision-making while also ensuring safeguards against legislative overreach. Article 21A of the Constitution stipulates the general time limit for the President to exercise his discretionary powers. It provides that when the Constitution grants the President discretion in granting or refusing assent, concurrence, approval, or confirmation, he must signify his decision within the specified period after it is sought. The time period specified for granting assent ranges from thirty days to six weeks. However, it may be extended contingent upon any agreement between the President and the Cabinet.

159. Article 22H applies in cases where the bill or any provision seeks to curtail discretionary powers of the President. If, within thirty days, the President neither withholds assent nor refers the bill to the tribunal for its opinion on whether the bill curtails the President’s discretionary powers, then the President is deemed to have assented. Even when the tribunal is of the opinion that the bill does not curtail the discretionary powers conferred on the President, the President is still deemed to have assented.

h. Democratic Socialist Republic of Sri Lanka

160. The Constitution of Sri Lanka, more particularly, Article 154H, stipulates that upon the presentation of a statute enacted by the Provincial Council, the Governor shall either assent to it or return it for reconsideration as soon as possible. The Provincial Council may then pass the statute with or without amendments. If the statute is presented to the Governor again, he may reserve it for reference by the President to the Supreme Court within one month of its second time, seeking a determination as to whether is inconsistent with the Constitution. If the Supreme Court holds the statute to be consistent, the Governor must grant assent. If it is held inconsistent, the Governor may withhold assent. It can be concluded that, upon the first presentation of a bill, the Governor has only two options: granting assent or returning it for reconsideration. On the second presentation, the Governor may only reserve the bill, referring it to the President for submission to the Supreme Court. He does not have the discretion to withhold assent independently.

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i. Republic of Kiribati

161. The constitutional framework of Kiribati is similar to the Democratic Socialist Republic of Sri Lanka. It provides powers to withhold assent only in exceptional situations. Section 66 of the Constitution of Kiribati allows the Beretitenti, that is the head of the state and head of the government, to withhold assent to a bill only if he believes the bill to be inconsistent with the Constitution. In such a case, the bill is returned to the Parliament for amendment, and if it is presented again and the Beretitenti still believes that the bill is inconsistent with the Constitution, he is required to refer it to the High Court for a declaration. If the Court declares that the bill is not consistent with the Constitution, the Beretitenti must grant assent forthwith. If the Court declares the bill to be inconsistent, it is sent back to Parliament. The Constitution of Zimbabwe under Section 131 provides a time period of twenty-one days to either assent to the bill or refer it for reconsideration.

j. Republic of Fiji

162. The Constitution of Fiji, 2013 also does not vest discretionary power in the President. While Section 53 of the Fiji Independence Order, 1970 and Constitution of Fiji granted the Governor-General the power to grant assent or withhold assent, the Constitution of Fiji, 2013, removed any discretion on the part of the President. Section 48 of the Constitution stipulates that once a bill is passed, the Speaker must present it to the President for assent, which must be granted within seven days; otherwise, the bill is deemed to have received assent.

k. Solomon Islands & Antigua and Barbuda

163. Both the Solomon Islands and Antigua and Barbuda have constitutional provisions that mandate the Governor-General to grant assent to bills passed by Parliament. In the Solomon Islands, Section 59(2) of the Constitution of the Soloman Islands provides that when a bill has been passed by the Parliament it shall be presented to the Governor-General who shall assent to it forthwith on behalf of the Head of the State. Whereas Section 52(2) of the Constitution of Antigua and Barbuda states that when a bill is presented to the Governor-General for assent in accordance with this Constitution, he shall signify that he assents thereto.

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l. Islamic Republic of Pakistan

164. In our neighboring country, Article 75 of the Constitution of the Islamic Republic of Pakistan provides that when a bill is presented to the President, he must either assent within ten days or return it to Parliament with a request for reconsideration. If the bill is passed again by a majority, whether amended or not, the President must grant assent within ten days, failing which it will be deemed to have received assent. Whereas Article 105 stipulates that the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister. The Governor may, however, require the Cabinet or the Chief Minister to reconsider the advice. Following such reconsideration, the Governor must act in accordance with the advice tendered within ten days.

m. Federal Republic of Germany

165. The legislative process in Germany is governed by both federal and state constitutional provisions. Article 76 of the Basic Law for the Federal Republic of Germany states that bills are to be introduced in Bundestag (house elected by the people) by the Federal Government or by the Bundesrat (federal council). The provision grants the Bundesrat a period of six weeks to comment on bills for Federal Government bills. The Federal Government submits the bills, alongwith its views, to the Bundestag within six weeks alongwith its views. Article 78 provides that a bill adopted by the Bundestag become the law if the Bundesrat consents to it. Laws enacted in accordance with the provisions of the Basic Law, after being countersigned, are certified by the Federal President. Furthermore, Section 60, Section V, the Constitution of Berlin stipulates that the bills shall be signed by the President of the House of Representatives without delay and then promulgated by the Governing Mayor within two weeks.

n. Italian Republic

166. The legislative process in Italy is shaped by constitutional provisions that define the President’s role in the promulgation of laws and the scope of legislative urgency. Article 73 of the Constitution of the Italian Republic mandates that laws be promulgated by the President within one month of their approval. However, if the Chambers (the Parliament consists of the Chamber of Deputies and the Senate of the Republic), by a majority vote, declare a bill to be urgent, it shall be promulgated within the time specified by the bill itself. Article 74

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empowers the President to request a new deliberation by means of a message stating the reasons for such a request. It is important to take note that if the Chambers pass the bill once again, then the law must to be promulgated.

o. French Republic

167. In France, the promulgation of legislation is subject to defined constitutional timelines. Article 10 of the Constitution of October 4, 1958, stipulates that the President of the Republic must promulgate Acts of Parliament within fifteen days after the final passage of an Act. It also empowers the President to request Parliament to reopen the debate on the Act, or any specific sections thereof, and such a request for reopening of debate shall not be refused.

p. Japan

168. As per the Japanese constitutional framework, the Diet (Parliament of Japan) is the sole law-making organ of the State. Article 59 envisages that if a bill passed by the House of Representatives is rejected by the House of Councillors, it becomes a law when passed a second time by the House of Representatives by a two-thirds majority of the members present. Article 74 states that all laws and cabinet orders must be signed by the competent Minister of State and countersigned by the Prime Minister.

G. ANALYSIS

i. What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution?

169. A plain reading of Article 200 of the Constitution indicates that when a bill is passed by the legislature of a State, it is mandatorily required to be placed before the Governor for his assent. This is because without receiving the assent of the President, a bill cannot become an Act. However, when a bill is presented to the Governor for his assent, the Governor is required to make a declaration from the three options available to him under the substantive part of Article 200, that is, to assent, to withhold assent, or to reserve the bill for the consideration of the President.

170. The first proviso prescribes a mechanism whereby the Governor may return a bill, which is not a Money Bill, back to the State legislature

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requesting them to reconsider the bill or certain provisions thereof or consider the possibility of making certain amendments to it. Once a bill is so returned by the Governor, the State legislature is required to take note of the suggestions made by the Governor and reconsider the bill accordingly. If the bill, after such reconsideration by the State Legislature is again passed and presented to the Governor, then in such circumstances as per the first proviso, the Governor would then be prohibited from withholding his assent to the bill.

171. The second proviso provides for a specific situation wherein the Governor is mandated to reserve a bill for the consideration of the President if, in his opinion, the bill upon becoming law, would so derogate from the powers of the High Court as to endanger the position which the High Court has been designed to fill by the Constitution.

172. One of the principal contentions advanced by the learned Attorney General before us was that the first proviso to Article 200 provides an independent fourth course of action to the Governor besides the three other options available to him under the substantive part of the Article. To put it differently, his argument was that the Governor may either withhold assent to a bill simpliciter, as provided under the substantive part of Article 200, or he may invoke the procedure prescribed under the first proviso and return the bill back to the State legislature along with such a message as is mentioned in the first proviso. In other words, he contended that where the Governor declares a simpliciter withholding of assent, the same would be an absolute veto of the bill, and the State legislature would have no occasion to reconsider the bill in such a scenario. As a corollary the first proviso would have no applicability and the State legislature would not be entitled to reconsider the bill on its own motion.

173. He argued that in cases where the bill suffers from some gross and manifest unconstitutionality, the Governor need not invoke the procedure mentioned in the first proviso and it would be sufficient if he declares a simpliciter withholding of the bill. As a corollary, he submitted that the procedure prescribed under the first proviso may be followed by the Governor when he is of the belief that the bill, which is otherwise constitutional, may benefit from certain amendments and in such a case he may send a message to the State legislature suggesting certain amendments to the bill.

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174. In other words, his contention was that simpliciter withholding is to be opted for by the Governor in his position as a custodian of the Constitution in the State, while the procedure prescribed in the first proviso is to be followed by him in his role as a friend, philosopher and guide of the State Government, with a view to improve an otherwise constitutionally innocuous piece of legislation.

175. The aforesaid contention of the Attorney General was met by the petitioner by placing reliance on the recent decision of this Court in State of Punjab (supra) wherein it was held that the option of withholding of assent under the substantive part of Article 200 is attached with the first proviso. The petitioner contended that in light of the said observation, it is not open for the Governor to undertake any simpliciter withholding of a bill presented to him and he must mandatorily resort to the procedure indicated in the first proviso if he decides to withhold assent to a bill.

176. The Attorney General, on the other hand, raised doubts as regards the correctness of the decision in State of Punjab (supra) and argued that the said decision was rendered without having regard to the earlier decisions given by larger Benches of this Court. In particular, he placed reliance on certain observations made by the Constitution Bench in Valluri Basavaiah Chowdhary (supra) to support his contention.

177. In response, the petitioner argued in favour of the decision in State of Punjab (supra) and submitted that the observations made in Valluri Basavaiah Chowdhary (supra) were made in a case where this Court was not dealing with the interpretation of Article 200 of the Constitution. Thus, the observations made therein as regards Article 200 could be said to be obiter dicta at best. Mr. Dwivedi went to the extent of submitting that the observations of this Court being relied upon by the Attorney General cannot be construed as obiter dicta as they were mere passing remarks irrelevant to the lis before the Court in that case.

178. It is in this backdrop that we are called upon to ascertain whether the observations made in Valluri Basavaiah Chowdhary (supra) can be reconciled with the decision of this Court in State of Punjab (supra). The consequence of this inquiry would be that it would determine whether the constitutional scheme of Article 200 envisages a simpliciter

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withholding of assent by the Governor. In other words, if the decision in State of Punjab (supra) is found to be per incuriam, it would mean that the Governor under Article 200 has the power of exercising an absolute veto upon any bill which is presented to him for assent.

179. Before going into the question of whether the observations made in Valluri Basavaiah Chowdhary (supra) could be said to be the ratio, obiter or irrelevant to the lis, we deem it necessary to reproduce the observations relied upon by the Attorney General in support of his submission: “19. The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except in the case of a “Money Bill”, withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent when the Bill is reconsidered and passed by the Assembly. The second proviso to that article makes the reservation for consideration of the President obligatory where the Bill would, “if it becomes law”, derogate from the powers of the High Court. Thus, it is clear that a Bill passed by a State Assembly may become law if the Governor gives his assent to it, or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. The Governor is, therefore, one of the three components of a State legislature. The only other legislative function of the Governor is that of promulgating Ordinances under Article 213(1) when both the Houses of the State legislature or the Legislative Assembly, where the legislature is unicameral, are not in session. The Ordinance-making power of the Governor is

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similar to that of the President, and it is co-extensive with the legislative powers of the State legislature.” (Emphasis supplied)

180. The crux of the controversy as regards whether the first proviso provides an independent course of action to the Governor lies in the use of the expression “in which case the Bill falls through unless the procedure indicated in the first proviso is followed”. However, what is interesting to note is that this expression did not come to be used for the first time in Valluri Basavaiah Chowdhary (supra). Much prior to the said decision, Justice S.R. Das (as his lordship then was), in a concurring opinion in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in (1952) 1 SCC 528 observed as follows: “235. [...] The procedure to be followed after a Bill is passed by the State Assembly is laid down in Article 200. Under that article the Governor can do one of three things, namely, he may declare that he assents to it, in which case the Bill becomes a law, or he may declare that he withholds assent therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed, or he may declare that he reserves the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. Under that article the President shall declare either that he assents to the Bill in which case the Bill will become law or that he withholds assent therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed. Thus it is clear that a Bill passed by a State Assembly may become a law if the Governor gives his assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. In the latter event happening, the argument of the learned counsel for the petitioners will require that what has become a law by the assent of the President will, in order to be effective, have to be again reserved for the consideration of the President a curious conclusion I should be loath to reach unless I am compelled to do so. Article 200 does not contemplate a second reservation by the Governor. [...]” (Emphasis supplied)

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181. The same expression also came to be used by a three-Judge Bench in Hoechst (supra) wherein it was observed thus: “85. The constitutional position of a Governor is clearly defined. The Governor is made a component part of the legislature of a State under Article 168 because every Bill passed by the State legislature has to be reserved for the assent of the Governor under Article 200. Under that Article, the Governor can adopt one of the three courses, namely: (1) He may give his assent to it, in which case the Bill becomes a law; or (2) He may except in the case of a ‘Money Bill’ withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for consideration with a message; or (3) He may “on the advice of the Council of Ministers” reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article

201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent and the Bill is reconsidered and passed by the Assembly. [...]” (Emphasis supplied)

182. This Court in State of Punjab (supra) wherein one of us (J.B. Pardiwala J.) was part of the Bench, observed that the second proviso to Article 200 is in the form of an exception as it restricts the choice that the Governor otherwise has under the substantive part of Article

200. It observed that the use of the expression “shall not assent to, but shall reserve for the consideration of the President” makes it abundantly clear that the Governor has no choice but to reserve a bill for the consideration of the President if the bill is of the description given in the second proviso. This Court further held that unlike the second proviso, which is in the form of an exception, the first proviso is in the form of an explanation and the same is made clear from the use of the expression “may” in the first proviso. The Court observed that the expression “may” has been used because the first proviso attaches with the option of withholding of assent and it is a matter of choice for the Governor if he wants to withhold assent to a bill or if he wishes to exercise the other two options available to him, namely, declaring assent or reserving the bill for the consideration

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of the President. Taking note of the expression “shall not withhold assent therefrom” used in the first proviso, the Court observed that the expression signified that the first proviso was attached to the option of withholding of assent alone. In lieu of this, the Court held that upon withholding of assent to a bill, the Governor is mandatorily required to follow the procedure prescribed in the first proviso. The relevant observations are reproduced hereinbelow: “20. The present case turns upon how the first proviso is to be construed. In construing the first proviso, it needs to be noted that the substantive part of Article 200 provides the Governor with three options : an option to assent; an option to withhold assent; and an option to reserve the Bill for the consideration of the President. The first proviso opens with the expression “the Governor may” in contrast to the second proviso which begins with the expression “the Governor shall not assent”. The “may” in the first proviso is because the first proviso follows the substantive part which contains three options for the Governor. The first proviso does not qualify the first option (where the Governor assents to the Bill) nor the third option reserving the Bill for consideration of the President. The first proviso attaches to the second option (withholding of assent) and hence begins with an enabling expression, “may”. By the mandate of the second proviso, there is an embargo on the Governor assenting to a Bill which derogates from the powers of the High Court under the Constitution. The Governor is by the mandate of the Constitution required to reserve such a Bill for consideration of the President.

21. The second proviso impacts upon the option which is provided by the substantive part of Article 200 to the Governor to reserve a Bill for the consideration of the President by making it mandatory in the situation envisaged there. The option of reserving a Bill for the consideration of the President is turned into a mandate where the Governor has no option but to reserve it for the consideration of the President. The second proviso is, therefore, in the nature of an exception to the option which is granted to the Governor by the substantive part of Article 200 to reserve any Bill for the consideration of the President.

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22. A proviso, as is well settled, may fulfil the purpose of being an exception. Sometimes, however, a proviso may be in the form of an explanation or in addition to the substantive provision of a statute. The first proviso allows the Governor, where the Bill is not a Money Bill to send it back to the legislature together with a message. In terms of the message, the legislature may be requested by the Governor to reconsider the entirety of the Bill. This may happen for instance where the Governor believes that the entirety of the Bill suffers from an infirmity. Alternatively, the Governor may request the legislature to reconsider any specific provision of the Bill. While returning the Bill, the Governor may express the desirability of introducing an amendment in the Bill. The desirability of an amendment may arise with a view to cure an infirmity or deficiency in the Bill. The concluding part of the first proviso however stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase “shall not withhold assent therefrom” is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor shall not withhold assent. The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State Legislature.

23. This is compatible with the fundamental tenet of a parliamentary form of Government where the power to enact legislation is entrusted to the elected representatives of the people. The Governor, as a guiding statesman, may recommend reconsideration of the entirety of the Bill or any part thereof and even indicate the desirability of introducing amendments. However, the ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone. That the message of the Governor does not bind

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the legislature is evident from the use of the expression “if the Bill is passed again …with or without amendments”.

24. The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage. In State of Telangana v. Governor of Telangana [State of Telangana v. Governor of Telangana, (2024) 1 SCC 405] this Court observed that “The expression ‘as soon as possible’ has significant constitutional content and must be borne in mind by constitutional authorities.” The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation which squarely lies in the domain of the State Legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.

25. The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of law-making by the State Legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the State Legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by

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a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso. The Governor is under Article 168 a part of the legislature and is bound by the constitutional regime.

26. Insofar as Money Bills are concerned, the power of the Governor to return a Bill in terms of the first proviso is excluded from the purview of the constitutional power of the Governor. Money Bills are governed by Article 207 in terms of which the recommendation of the Governor is required for the introduction of the Bill on a matter specified in sub-clauses (a) to (f) of clause (1) of Article 199.” (Emphasis supplied)

183. Placing reliance on the expression “unless the procedure indicated in the first proviso is followed” the learned Attorney General submitted that the decision as regards whether the procedure prescribed under the first proviso is to be invoked or not, is the discretion of the Governor. It is only when the Governor decides to return the withheld bill along with a message that the first proviso would come into play. In other words, if the Governor believes that the bill is constitutionally infirm and beyond any remedial changes, then he may choose not to return the bill along with a message and may simply declare that he is withholding assent to the bill, in which case the bill would “fall through” or lapse.

184. Although the argument is seemingly lucrative and appealing, and the petitioner also could not provide a concrete reply to the same during the course of the arguments and instead took shelter under the semantics of obiter-dicta and ratio-decidendi, yet we deem it necessary to explain how the argument is short-sighted, half-baked and suffers from an inherent fallacy.

185. As the observation made by this Court in the three decisions referred to above holds that the Bill would fall through unless the procedure prescribed in the first proviso is followed, we first need to understand

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the procedure that is prescribed in the first proviso. The proviso stipulates that when any bill, other than a Money Bill, is presented to the Governor for assent, he may, as soon as possible, return it to the State legislature, together with a message. As regards the contents of the message, the proviso stipulates that the Governor may request the House(s) of the State legislature to reconsider the bill or certain parts of it, and also explore the desirability of introducing certain amendments as may be suggested by the Governor in the message. Once the bill is so returned together with the message, the House(s) are required to reconsider the bill in accordance with the recommendations contained in the message of the Governor. If the bill is then passed again by the House(s), with or without amendments, and presented to the Governor, then the Governor cannot withhold assent from such a bill.

186. A close reading of the first proviso reveals that the action of returning the bill to the State legislature by the Governor is qualified by the expression “as soon as possible”. However, once the bill has been returned to the State legislature by the Governor, there is no such expediency required on part of the State legislature in reconsidering the bill. Further, once the bill is reconsidered and passed again by the State legislature, there is again a mandate on the Governor not to withhold assent to such a bill. The only obligation upon the State legislature is to mandatorily take into consideration the suggestions contained in the message sent by the Governor along with the bill. However, the State Legislature is not under an obligation to mandatorily introduce any amendments suggested by the Governor and it may proceed to repass the bill without any amendments.

187. Since there is no obligation on the State legislature to repass the bill returned by the Governor under the first proviso, the expression “falls-through” can only refer to those situations where the State legislature elects not to pass the bill for reconsideration again, and in such circumstances causing the bill to lapse. There is nothing in the first proviso which gives the Governor the discretion to initiate the procedural machinery described therein. Therefore, the first proviso, cannot be treated as an independent course of action severable from the option of withholding of assent. The use of the expression “as soon as possible” in the first proviso makes it clear that the Constitution has imposed a sense of urgency upon the

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Governor and expects him to act with expediency if he decides to declare the withholding of assent. At the same time, that the use of the expression “may” in the first proviso, as explained in State of Punjab (supra) does not confer a discretion upon the Governor to decide whether to act in accordance with the procedure prescribed in the first proviso. On the contrary, it only denotes that the first proviso would be applicable only when the option of withholding of assent is exercised. In other words, the expression “may” is used keeping in mind that there are three options that the Governor may choose from when a bill is presented to him for assent. Therefore, there is no requirement for construing the expression “may” as “shall” as was vehemently urged on behalf of the petitioner, and the interpretation provided in State of Punjab (supra) and further explained by us does not merit construing the use of “may” as “shall”, as it would result in a logical absurdity insofar as it would make the compliance with the procedure laid down in the first proviso mandatory in the exercise of all three options available to the Governor under the substantive part of Article 200 of the Constitution.

188. It is also remarkable to take note of the expression “if the bill is passed again” which signifies that the ultimate discretion to decide whether the State legislature wants to repass the bill or not continues to remain the prerogative of the State legislature alone. Similarly, the use of the expression “with or without amendment” denotes that even if the State legislature decides to reconsider the bill, the discretion to repass it with or without the amendments suggested by the Governor again continues to be their sole prerogative. In order to obviate any further confusion, we deem it appropriate to clarify that the use of the expression “shall reconsider the bill accordingly” does not indicate that it is obligatory for the State legislature to take up the bill for reconsideration. The word “shall” used in this expression must be read in conjunction with the word “accordingly”. The use of “shall” in this context is only for the limited purpose that if the State legislature in its discretion does decide to not allow the bill to “fall through” by taking it up for reconsideration, then the scope of such reconsideration must at the very least encompass the suggestions communicated by the Governor in his message. The word “shall” used herein cannot be singled out and construed devoid of its context.

189. The structure of Article 200 is also helpful in discerning the meaning of the content that it holds. There is a substantive part of the

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provision and there are two provisos to the substantive part. In the substantive part, there are three options for the Governor to choose from, each separated by the conjunction “or” thereby indicating the mutual exclusivity of the three options. If the Governor opts for the first option and grants assent to the bill presented to him, the first proviso doesn’t come into consideration. Similarly, if the Governor chooses the third option and reserves the bill for the consideration of the President, there is no occasion for the operation of first proviso. The second proviso is overarching in nature and provides that in the situation as described therein, the Governor can only exercise one option, that is, reserve the bill for the consideration of the President.

190. The use of the expression “shall declare” in the substantive part of Article 200 indicates that the Governor is required to make a declaration from the three choices provided to him under the substantive part and there cannot be any fourth course of action. As soon as assent is granted, the bill becomes an Act and there is no scope thereafter for reservation for the consideration of the President or returning back to the State legislature. If reservation for the consideration of the President is declared then thereafter no returning of the bill to the State legislature can take place, unless the President so directs under the proviso to Article 201. Thus, it is only upon the declaration of withholding of assent that the first proviso is animates into action.

191. Another important aspect that may be pointed out is that the observations made in Valluri Basavaiah Chowdhary (supra) and Hoechst (supra), respectively state that except in the case of a Money Bill, the Governor may withhold assent. A bare reading of Article 200 indicates that there is no restriction in the substantive part that prohibits the Governor from declaring that he withholds assent to a Money Bill, and it is only under the first proviso that such a restriction can be found. Therefore, it is only when the option of the withholding of assent in the substantive part of Article 200 is read along with the first proviso that Money Bills could be said to be excluded from the purview of withholding of assent under the substantive part of Article

200. Thus, rather than fortifying the argument of the learned Attorney General, the observations made in Valluri Basavaiah Chowdhary (supra) and reiterated in Hoechst (supra) only reinforce the intricate and inseparable connection between the exercise of the option of withholding of assent by the Governor and coming into operation

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of the procedure prescribed in the first proviso. The dictum of the above mentioned two decisions in no way renders the decision in State of Punjab (supra) per-incuriam, and rather bolsters the line of reasoning adopted by this Court therein.

192. Therefore, the use of the expression “the Bill falls through unless the procedure indicated in the first proviso is followed” should be construed in the context of the entire procedure described in the first proviso. Seen thus, it would mean that the bill would fall-through if the bill, having been returned by the Governor, is not passed again by the State legislature and presented again to the Governor for his assent. The fallacy of the argument canvassed by the learned Attorney General lies in the very fact that he has construed the observations of this Court, pertaining to compliance with the procedural requirement under the first proviso, to mean that the mechanism under the first proviso can only be initiated upon the desire and discretion of the Governor.

193. This Court in Nambudiri (supra) explained as to how the State legislature may cause a bill to fall through with which they no longer intend to proceed by not reconsidering and repassing it, once it has been returned by the Governor with the deceleration of withholding of assent. This Court held that the stage of assent could only be arrived at after the stage of reconsideration and repassing by the State legislature has been successfully crossed. The relevant observations read as under: - “16. […] Similarly, when it is said that if the Bill is passed again the Governor shall not withhold assent therefrom it does not postulate the existence of the same House because even if it is the successor House which passes it it is true to say that the Bill has been passed again because in fact it had been passed on an early occasion. Besides, if the effect of Article 196 is that the Bills pending assent do not lapse on the dissolution of the House then the relevant provisions of Article 200 must be read in the light of that conclusion. In our opinion, there is nothing in the proviso to Article 201 which is inconsistent with the basic concept of democratic Government in asking a successor House to reconsider the Bill with the amendments suggested by the President because the proviso makes it perfectly clear that it is open to the successor House to throw out the Bill altogether. It is only if the Bill is passed by the successor

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House that the stage is reached to present it to the Governor or the President for his assent, not otherwise.”

194. There is one another way of looking at Article 200. The procedure, as prescribed under the scheme of the provision, involves and envisages the actual motion of a bill from one constitutional authority to another. The Article starts with the requirement of the bill having to be mandatorily presented to the Governor after it has been passed by the State legislature. Thereafter, there is an obligation on the Governor to make a choice from one of the three options provided in the substantive part of the Article and also declare such a decision. Here, if assent is declared, then the bill becomes an Act and the Government may thereafter take steps to notify the same in the official Gazette. If the Governor declares that bill is being reserved for consideration of the President as per the second proviso or otherwise, then the bill travels from the Governor to the President, whereupon Article 201 comes into play. The mechanism provided in the first proviso also envisages the movement of the bill from the Governor to the State legislature and then back to the Governor upon being passed again. The expression “as soon as possible” appearing in the first proviso infuses a sense of urgency and expediency in the mechanism of returning of bills by the Governor. It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency. It is trite to say that Article 200 occupies an important role of giving the bills passed by the State legislature the authority of an Act. Without the procedure envisaged under Article 200, the bills remain mere pieces of paper, skeletons without any flesh or lifeblood flowing through their veins, mere documentation of the aspirations of the people without any possibility of bringing them to fruition. The only way by which the option of withholding of assent provided in the substantive part of Article 200 can be reconciled with the scheme permeating the remainder of the provision is by reading it in conjunction with the first proviso. It is only when the withholding of assent is tempered with the requirement of following the procedure prescribed in the first proviso that the constitutional object of ensuring that the law-making machinery at the State level keeps on running unhindered can be fulfilled.

195. Any other reading of the provision that construes the option of withholding of assent without attaching it to the mechanism prescribed

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in the first proviso would render the very idea of smooth functioning of the law-making process nugatory and would vest with the Governor untrammeled powers of thwarting the legislative machinery and in effect the will and aspirations of the people whose voices the legislature represents.

196. Thus, in light of the aforesaid discussion, it becomes clear that there are only three courses of action available to the Governor to choose from when a bill is presented to him for assent under Article

200. The first proviso is not an independent fourth course of action but intrinsically attached to the option of withholding of assent. In other words, the first proviso is clarificatory and only elaborates the procedure to be followed in case the option of withholding of assent is invoked by the Governor.

197. The use of the expression “shall” in the substantive part of Article 200 read with the expression “as soon as possible” used in the first proviso indicates that there is no pocket veto available to the Governor while he is exercising the powers under Article 200. As we have also discussed in the subsequent parts of this judgment, inaction on part of the Governor to take a decision when a bill is presented to him under Article 200 is grossly violative of the constitutional scheme of expediency which permeates the provision.

198. The Governor, in exercise of his powers under Article 200, also does not possess any absolute veto. He is mandated to take a decision from among the three options that are provided in the substantive part of the Article 200. In case of withholding of assent, the Governor is bound to follow the procedure prescribed under the first proviso and assent to the bill if it is ultimately presented to him for assent after being repassed by the State legislature. The Governor may also reserve certain bills for the consideration of the President. However, in no case has the Governor been conferred with the power to veto a bill which is presented to him. He is envisaged as an intermediary stop in the journey of the bill towards becoming an Act. When a bill comes to the Governor, he may forthwith assent to it, or postpone the grant of assent by exercising the option of withholding of assent but only for so long till the bill comes back to him after reconsideration, or he may forward the bill to the President whereupon the procedure prescribed under Article 201 is to be followed. Thus, in none of these cases can the Governor permanently keep a bill with him without according

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assent to it, nor can he declare a simpliciter withholding of assent thereby killing the bill.

ii. Whether the Governor can reserve a Bill for the consideration of the President 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?

199. As discussed in the preceding issue, the Governor, in exercise of his powers under Article 200, has three options to choose from. The use of the conjunction “or” between the three options signifies that the options are mutually exclusive and once one of the options is exercised by the Governor, the other options become unavailable to choose from. Kameshwar Singh (supra) held that there can be no reservation for the consideration of the President once assent is declared and similarly, there is no requirement for the Governor to assent to the bill, once the bill, having been reserved for the consideration of the President, has received his assent.

200. We have also discussed in line with the decision in State of Punjab (supra) that the option of withholding of assent is attached with the first proviso and once the Governor declares the withholding of assent, the entire mechanism which is laid down in the first proviso itself has to follow suit. Thus, the first proviso to Article 200 is a complete code in itself as regards the procedure which is to be followed once the Governor withholds assent and the rest of the article has no applicability thereafter.

201. It is also interesting to note that the expression “withhold assent” has been employed in the substantive part of Article 200. The literal meaning of the expression ‘withhold’ as defined in a number of dictionaries is to keep back; to keep in one’s possession what belongs to or is due to others; to hinder; to prevent; to defer; to postpone; to detain; to keep under control; to retain; to keep from doing something; to refrain from doing something. Thus, it would not be incorrect to construe that the option of withholding of assent has been provided to the Governor under the substantive part only with a view to defer or to postpone the grant of assent to a bill. Withholding of assent cannot be construed to be the same as denying of assent or as conferring a power in the Governor to veto a legislation passed by

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the State legislature, which would be against the very fundamentals of a representative democracy.

202. Further, the scope of this deferment of assent by the Governor has been made subject to the procedure laid down in the first proviso. The procedure laid down in the first proviso ensures that the withholding of assent does not become analogous to a pocket veto. The use of the expression “if the Bill is passed again by the House or Houses with or without amendment” in the first proviso clearly indicates that the role of the Governor under the first proviso has been characterized as recommendatory in nature and that his suggestions do not bind the legislature. Further, the expression “the Governor shall not withhold assent therefrom” in the first proviso leaves no scope for the Governor to take any course of action other than discontinuing the withholding of assent, which by necessary implication means to accord assent to the bill. The expression also indicates that there is strict constitutional prohibition against the Governor to not withhold assent to the bill.

203. What follows from the aforesaid discussion is that once the option of withholding of assent is exercised by the Governor, the mechanism under the first proviso is set into motion to the exclusion of everything else envisaged under the article. This is in view of the maxim Expressio Unius Est Exclusio Alterius i.e., the expression of one thing is the exclusion of another. Once the mechanism under the first proviso is set into motion and the various stages are complied with, the only possible manner in which the mechanism prescribed under the first proviso can conclude is by the Governor granting assent to the bill. Thus, there is no scope for the Governor to reserve a bill for the consideration of the President once it is presented to him for reconsideration after compliance with the procedure laid down in the first proviso.

204. However, for the sake of completeness, we deem it necessary to discuss a possible scenario wherein the Governor may have the power to reserve the bill for the consideration of the President even after it is repassed by the State legislature and presented to him for assent. Say, for instance, in a particular case, the Governor withholds assent to a bill which is presented to him and returns it to the House or the Houses together with a message requesting them to reconsider certain aspects of the bill or introduce certain amendments desirable thereto. However, the House or the Houses,

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in the process of reconsideration, introduce certain changes which were not suggested by the Governor in the message which he sent together with the bill. In such a scenario, the House or Houses cannot be said to have “reconsidered the Bill accordingly” which is a mandatory condition prescribed under the first proviso. If the bill which is presented to the Governor for assent in the second round could be said to have been reconsidered by the House or Houses on wholly different and new grounds, and if those changes are of such a nature where a reservation for the consideration of the President may be desirable, then the Governor would not be precluded from reserving the bill for the consideration of the President.

205. However, if the bill is repassed by the House or Houses without amendments, or only with such amendments as were suggested by the Governor in his message, then the procedure prescribed under the first proviso could be said to be fully complied with and the Governor would be bound to signify his assent thereto and would be precluded from reserving the bill for the consideration of the President.

206. We say so because the procedure laid down in the first proviso cannot be construed as giving the State legislature the unfettered power to introduce changes to the bill which alter its very nature, or which, for instance, fall foul of the second proviso to Article 200. In such a scenario, the Governor would have all the three options which are available to him when a bill is presented to him in the first instance. However, whenever the House or Houses reconsider the bill “accordingly”, that is, in accordance with the suggestions of the Governor and pass it with or without amendments, the Governor is bound to act as per the clear constitutional directive laid down in the first proviso.

207. As we shall also discuss later, any reservation of a bill by the Governor for the consideration of the President on the ground that the bill was not reconsidered as per the procedure prescribed in the first proviso would be subject to judicial scrutiny.

208. Coming to the facts of the present case, out of twelve bills which are the subject matter of the present petition, two were reserved by the Governor for the consideration of the President in the first instance of their presentation. As regards the remaining ten bills, the Governor declared a withholding of assent, however, the bills were returned without any message as is envisaged under the first proviso. What stands out as a glaring omission on the part of the Governor is that the day on which the withholding of assent was declared, the

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decision in State of Punjab (supra) had already been passed and even the notice in the present petition had been issued. Thus, it was expected of the Governor that he would not declare a simpliciter withholding of assent of the bills without specifying the reasons for such withholding and also without making recommendations as regards the desirability of introducing any amendments by the State legislature while reconsidering the bills.

209. In light of the language of Article 200, and also keeping in mind its interpretation by this Court in State of Punjab (supra), there was no room for the Governor to declare a simpliciter withholding of assent without taking recourse to the first proviso as that virtually amounts to the exercise of absolute veto by the Governor, a power which is conspicuously absent from our constitutional scheme.

210. In the absence of any message under the first proviso by the Governor, the State legislature was left with no other option but to proceed on the assumption that the bills were required to be reconsidered in its entirety. The State legislature proceeded on this assumption and the said 10 Bills were reconsidered in a special sitting and were passed without any material changes and presented to the Governor on the same day. Thereafter, the Governor, rather than giving his assent to the Bills, went on to reserve the Bills for the consideration of the President on the ground that the Bills were repugnant to Entry 66 of the List I of the Schedule VII to the Constitution.

211. For the reasons that we have assigned in our foregoing discussion, we are of the view that the Governor could not have reserved the Bills for the consideration of the President once they were reconsidered by the State legislature and presented to him without any amendments, particularly when the Governor sent back the Bills to the State legislature without any message on an earlier occasion. As a natural consequence of the reservation of the bills for the consideration of the President having been found to be in contravention of the procedure prescribed under Article 200 of the Constitution and thus, illegal and void, any subsequent decision taken by the President on those Bills would also be non-est and is thus declared to be void ab-initio.

iii. Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution?

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212. It was argued by the petitioner that the Governor in exercise of his powers under Article 200 is required to act promptly and the absence of any prescribed time period should not be construed as allowing the Governor the liberty to act on his own free will and volition. It was also submitted that the expression “as soon as possible” appearing in the first proviso places an obligation on the Governor to act promptly and with expedience.

213. The petitioner also placed reliance on the recommendations made by the Sarkaria Commission and the Punchhi Commission to argue that the Court should read in some time-limit into the scheme of Article(s) 200 and 201 respectively to prevent inaction on the part of the Governor and the President.

214. Refuting the contention of the petitioner, the learned Attorney General argued that in the absence of any prescribed time-limit in the text of the provision, it would not be open to the Court to read in a time- limit and the only way to do so would be by way of a constitutional amendment. He placed reliance on the decision of this Court in Nambudiri (supra) to argue that this Court had expressly rejected the idea that there is a time limit which circumscribes the exercise of functions of the Governor under Article 200.

215. The arguments advanced before us present an interesting question whether it would be open to the courts to read in a time limit for the exercise of a power by a constitutional authority where no such limit is prescribed by the Constitution. We have expressly held during the course of answering the previous issue that the scheme of Article 200 does not envisage either the exercise of a pocket or an absolute veto by the Governor. The use of the expression “shall” in the substantive part indicates that the Governor is under an obligation to choose from one of the three options that are made available to him. By virtue of the first proviso attaching itself to the option of withholding of assent, as discussed earlier, the possibility of an absolute veto is also ruled out as the Governor must assent to the bill once it is presented to him after the procedure prescribed in the first proviso is complied with.

216. However, unlike many countries across the globe wherein a provision for deemed assent upon the expiry of the specified time period has been made, there is no such provision in our Constitution. The only manner in which a temporal imperative has been weaved into the scheme of Article 200 is by the use of the expression “as soon as possible” in the first proviso. The said expression, which also appears

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in Article 111 of the Constitution, was the subject of some debate in the Constituent Assembly.

217. Article 111, which provides for the President’s assent to bills passed by Parliament was originally numbered as Article 91 under the Draft Constitution and it provided a time-limit of six-weeks to the President to send back the bill to the House(s) for reconsideration. The Draft article read as follows: “When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom: Provided that the President may, not later than six weeks after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provision thereof, and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and the Houses shall reconsider the Bill accordingly.”

218. During the Constituent Assembly debates, Dr. B.R. Ambedkar moved an amendment to substitute the expression “not later than six weeks” with “as soon as possible”. Further in the debate, Shri Naziruddin Ahmad advocated for a change in the aforesaid amendment and sought to substitute the term “as soon as possible” with “as soon as may be”. His contention rested on the reasoning that the phrase, “as soon as possible” which was introduced by Dr. Ambedkar in his amendment in place of the original wording used in Article 91, that is, “not later than six weeks”, imposed an unduly stringent obligation upon the President. He was of the opinion that “as soon as possible” mandates immediate action, thereby curtailing the President’s scope to engage in a careful and deliberate review of the bill presented for assent. He expressed concern that such a rigid constraint could give rise to hasty decisions, devoid of any careful examination of the presented bill. In his view, the formulation ran the risk of undermining the quality of the President’s judgment under Article 111. He expressed his opinion as follows: “[...] The Proviso is to the effect that “the President may, as soon as possible, after the presentation of the Bill,

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return the Bill,” and so on. I want to make it “as soon as may be”. If we leave it exactly as Dr. Ambedkar would have it, it leaves no margin. ‘As soon as possible’ means immediately. Possibility which means physical possibility is the only test. It may leave no breathing time to the President. The words ‘may be’ give him a reasonable latitude. It would mean, “reasonably practicable”. This is the obvious implication. That is the only reason why I have suggested amendment.”10

219. To avoid the aforesaid possibilities, Shri Naziruddin Ahmad proposed the adoption of “as soon as may be”, which he interpreted to mean “as soon as is reasonably practicable”. In his opinion, this change would allow the President greater flexibility and sufficient time to thoroughly examine the provisions of the bill presented to him. Such freedom would prove particularly valuable when the President contemplates returning the bill to the House(s) for reconsideration, especially in circumstances where amendments might be recommended. The essence of Shri Ahmad’s amendment was to safeguard the President’s ability to render well-reasoned and thoughtful decisions without any rigid time constraints.

220. Shri P.S. Deshmukh expressed his opposition to the amendment proposed by Dr. B.R. Ambedkar, deeming the suggested substitution of the words as unnecessary. He, on the other hand, argued that the original phrasing, particularly the expression “not later than six weeks”, ought to remain unaltered, as it established a precise time frame for the President to act accordingly. He further argued that this specific time frame mandated that the President must convey his decision to return the bill for reconsideration as expeditiously as possible, and in no event beyond six-weeks. He opined that preserving the words “not later than six weeks” was quintessential to ensure timely action, thereby preventing undue delays in the legislative process to send the bills back to the House(s) for reconsideration.

221. Shri H.V. Kamath vehemently opposed the amendment put forward by Dr. Ambedkar. Advocating for expeditious and timely action, he argued that, “in human nature, if you will permit me to say so, unless there is a compelling sense of duty or service, there is always a

10 8, Constituent Assemb. Deb., (May 20, 1949) 192.

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tendency to procrastinate”.11 It was his opinion that such tendencies to procrastinate must be rooted out by infusing a standard of duty or service to ensure timely action on part of the President. He further opined that there exists no assurance that every President of India will consistently adhere to the principle of timely action in legislative processes. Therefore, according to him, it was very necessary that the “Constitution should provide specifically a time limit for a contingency of this nature”12. He believed the phrase “as soon as possible” to be vague, purposeless and meaningless, and argued that such vague phrases have no place in a provision of such an important nature.

222. In light of the debate which took place on 20th May 1949, the proposed amendment to Article 91 was adopted by the Assembly, thereby substituting the expression “not later than six weeks” with “as soon as possible” and the same came to be added to the Constitution.

223. What can be postulated from this discussion of the relevant Constituent Assembly debates is that although our constitutional makers expressed their concerns for the possibility of an undue delay in the legislative process on account of the human nature to procrastinate, yet they nevertheless proceeded to adopt the phrase “as soon as possible” in the original Article 91. This adoption and amendment of draft Article 91 reflects a sense of inherent trust reposed by the Constituent Assembly that the President would execute his functions as enshrined under Article 111 of the Constitution in a timely and efficient manner.

224. The expression also came to be adopted mutatis mutandis in Article 200. The experience of the working of the Constitution, more particularly, Article 200, has shown that the apprehensions expressed by some of the members of the Constituent Assembly have unfortunately proven to be prophecy. As we have discussed in the preceding paragraphs, one of the prominent grievances of the State governments as recorded by the Sarkaria Commission and Punchhi Commission reports was that the exercise of the power under Article 200 by the Governor, not being a time-bound process, leads to significant legislative delay and that certain bills are withheld in the Governor’s secretariat for years.

11 8, Constituent Assemb. Deb, (May 20, 1949) 194. 12 8, Constituent Assemb. Deb. (May 20, 1949) 195.

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225. Not taking any action on the bills for an unreasonable and prolonged period of time virtually vests the Governor with the power of pocket veto and the same cannot be held to be permissible within our constitutional scheme. Dr. Singhvi had submitted during the course of his arguments that there is no scope for the Governor to decide not to decide. Article 200, being the final step in the process of the birth of a legislative enactment, the stage wherein life is breathed into an otherwise lifeless document, cannot be interpreted in a manner which allows the Governor to remain silent and exhibit inaction upon the bills which are submitted to him after having received the approval of the majority of the State legislature.

226. This Court in Durga Pada Ghosh v. State of West Bengal reported in (1972) 2 SCC 656 whilst dealing with a writ in the nature of habeas corpus was called upon to examine the meaning and import of the expression “as soon as may be” appearing in Article 22(5) of the Constitution and its significance in communication of the grounds of detention and disposal of the representation of the detenu. In the said case, the detenu came to be arrested and put in preventive detention in December, 1971. The detenu moved a representation which was received in early January, 1972. However, his representation came to be considered by the State government therein only in February, 1972 and his detention was confirmed and communicated in March, 1972. The detenu challenged the order of preventive detention passed against him on the ground that there was an inordinate delay of almost two months on part of the State government in considering his representation even though the same had been received in January itself. This Court held that the aforesaid expression must be seen in the context of the scheme underlying Article 22, more particularly, the importance that it occupies in the constitutional set-up as regards the personal freedom of an individual and in a manner whereby the provision does not lose both its purpose and meaning. The words “as soon as may be” in such context implies anxious care on the part of the authority concerned to perform its duty in this respect, as early as practicable, without avoidable delay. The course of action which is expected from the concerned authority; being communication of the grounds of arrest and disposal of the representation, was required to be considered with a sense of urgency and must be done with due promptitude or expedition and with reasonable dispatch. It was further held that although there is no definite time-limit which can be

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