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

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

laid down within which such actions must be done, yet at the same time, whether the appropriate authority had disposed of its obligation as expeditiously as possible ought to be looked into keeping in mind the peculiar facts and circumstances of each case. It further held that such constitutional obligations cannot be ignored or justified on reasons of administrative delay except where it is shown that ample arrangements were made to cope with the situation that led to a delay and a certain degree of priority was accorded. The relevant observations read as under: “7. Now it is not disputed before us that on the question of delay in considering the representation by the State Government no hard and fast rule can be laid down and it is a matter which falls for decision on the facts and circumstances of each case. It may in this connection be pointed out that in Jayanarayan case the writ petition was referred to a Bench of five Judges to consider as to what would be the question of period within which the State Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between Shyamal Chakraborty v. Commissioner of Police, Calcutta and Khairul Haque v. State of West Bengal. After considering the various decisions on the point this Court expressly concluded thus: “No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J., who spoke for this Court in the case of Khairul Haque : ‘it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning’.”

8. The scheme underlying Article 22 of the Constitution highlights the importance attached in our constitutional set- up to the personal freedom of an individual. Sub-articles (1)

p. 1118

and (2) refer to the protection against arrest and detention of a person under the ordinary law. Persons arrested or detained under a law providing for preventive detention are dealt with in sub-articles (4) to (7). Sub-article (5) says that when a person is detained in pursuance of an order under a law providing for preventive detention the grounds on which the order is made have to be communicated to the person concerned as soon as may be and he has to be afforded earliest opportunity to represent against the order. The object of communicating the grounds is to enable the detenu to make his representation against the order. The words “as soon as may be” in the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as early as practicable without avoidable delay. Similarly, when the representation is made it is in the fitness of things that the said representation should be considered with the same sense of urgency with which the grounds are intended to be communicated to the detenu. That is the only way in which the purpose, for which the earliest communication of the grounds to the person concerned is provided, can be achieved. The representation must, therefore, be considered with due promptitude or expedition and without avoidable delay, in other words with reasonable dispatch. As held by this Court in Jayanarayan case, the representation should be considered as expeditiously as possible. As the question of delay in considering the representation falls for determination on the facts and circumstances of each case the binding force of a past precedent for a later case would largely depend on the degree of close similarity of the circumstances dealt with therein. [...]” (Emphasis supplied)

227. In Keisham (supra) the question that arose before this Court was whether courts can direct the Speaker to decide disqualification petitions pending before it within a reasonable period of time, and this Court speaking eruditely through R.F. Nariman, J., answering the aforesaid question in an affirmative held as under:

p. 1119

(i) First, that the Speaker, being the quasi-judicial authority for the purposes of the Tenth Schedule, is duty bound to take a decision on disqualification petitions within a reasonable time. Any failure of the Speaker in exercising his jurisdiction or refraining from deciding such petition within a reasonable time would be an error that would attract the scrutiny of the courts in judicial review, notwithstanding the exclusive jurisdiction to the exclusion of the courts that has been conferred upon the Speaker in terms of Paragraph 6 of the Tenth Schedule. The relevant observations read as under: -

24. It is clear from a reading of the judgment in Rajendra Singh Rana and, in particular, the underlined portions [italicised herein] of paras 40 and 41 that the very question referred by the two-Judge Bench in S.A. Sampath Kumar has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in Para 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review. (Emphasis supplied)

(ii) Secondly, it observed that although Paragraph 6 of the Tenth Schedule vests the Speaker with an exclusive jurisdiction to decide disqualification petitions and ousts the reach of courts in such matters, yet it does not mean that there is no scope of judicial review by the courts or that the power to pass any direction(s) to the Speaker acting under the Tenth Schedule does not exist. It was observed that the true purport of such exclusive jurisdiction was only to ensure that no obstacle comes in the way of the Speaker in deciding such petitions by way of injunctions from the courts. However, it by no means interdicts the exercise of judicial review in aiding a prompt decision on such disqualification petitions to ensure that the Speaker decides these issues within a reasonable period. The relevant observations read as under:

p. 1120

“30. A reading of the aforesaid decisions, therefore, shows that what was meant to be outside the pale of judicial review in para 110 of Kihoto Hollohan are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paras 110 and 111 of Kihoto Hollohan do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. [...]” (iii) Lastly, it held that although what would be a ‘reasonable period’ for deciding such petitions by the Speaker largely depends on the facts of each case yet, where there are no exceptional circumstances, the Speaker should arrive at a decision within an outer time-limit of three-months so that the avowed constitutional objective of anti-defection under the Tenth Schedule is not defeated. The relevant observations read as under: “30. [...] What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana, if they have infracted the provisions of the Tenth Schedule.” (Emphasis supplied)

p. 1121

228. The aforesaid view was reiterated in State of Telangana v. Governor of Telangana reported in (2024) 1 SCC 405 wherein this Court whilst dealing with a similar issue pertaining to the pendency of a few bills before the Governor of Telangana, held that the expression “as soon as possible” in Article 200 has significant constitutional content and must be borne in mind by the constitutional authorities. The relevant observations read as under: “2. The first proviso to Article 200 states that the Governor may “as soon as possible after the presentation” of the Bill for assent, return the Bill if it is not a Money Bill together with a message for reconsideration to the House or Houses of the State Legislature. The expression “as soon as possible” has significant constitutional content and must be borne in mind by constitutional authorities.” (Emphasis supplied)

229. In Ram Chand (supra) certain parcels of land had been demarcated and declared for compulsory acquisition vide a notification, sometime between the years 1959-1965. However, the awards for compensation came to be passed almost fourteen-years later in the year 1980. These awards came to be challenged before this Court on the ground that since the statute in question provides for payment of compensation in respect of the acquisition made at the market value of the land, as it stood, at the time of publication of the notification for declaration, the same necessarily meant that compensation ought to be paid expeditiously and without delay. This Court held that although the legislature by way of an amendment has now prescribed a time-limit for making an award, yet it does not mean that prior to such amendment there was no time-limit for payment of compensation or that an award could be passed by the authorities at their own pace and leisure. It held that where for exercise of any power no time-limit has been prescribed, such power has to be exercised within a reasonable period of time. It further held that sans any fixed time-limit, such powers cannot be exercised or subjected to delay in a manner that violates or circumvents the object of the statute and the constitutional mandate under Article 31A of timely acquisition and adequate compensation, respectively. The relevant observations read as under:

p. 1122

“14. The Parliament has recognized and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within a reasonable time and because of that now a time-limit has been fixed for making of the award, failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or time-frame and to complete the same as and when they desired? It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable. This aspect of the matter can be examined in the light of second proviso to Article 31-A of the Constitution, which in clear and unambiguous terms prohibits making of any law which does not contain a provision for payment of compensation at a rate, which shall not be less than the market value thereof. The Act is consistent with the second proviso to Article 31-A, because it provides for payment of compensation at the market value of the land acquired. But, whether the constitutional and statutory requirement of the payment of the market value to the persons, whose lands have been compulsorily acquired, is not being circumvented and violated by keeping the land acquisition proceedings pending for more than a decade and half, without making the awards and paying the compensation, which has been pegged to the dates of notifications under sub-section (1) of Section 4 of the Act, which in the present cases had been issued 14 to 21 years before the making of the awards. [...]” (Emphasis supplied)

230. In A.G. Perarivalan (supra) the facts germane for our discussion are that the appellant convict therein had filed a mercy petition under Article 161 to the Governor in December, 2015. The State Cabinet recommended the grant of remission to the Governor in

2018. However, the Governor did not take any decision on the mercy petition for two years despite receiving the recommendation of the State Cabinet. Thereafter, upon a direction of this Court, the

p. 1123

Governor in 2021, by an order, forwarded the mercy petition of the appellant to the President citing that the Union is the appropriate authority to decide the same. This reference came to be challenged before this Court wherein it was held as under: (i) First, it was held that the “limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up”. The Court observed that although the Governor is the head of the executive in the State, yet in actuality, it is the Council of Ministers that carries on the executive Government. It held that as per Article 163, the Governor shall exercise his functions provided under different provisions of the Constitution only under the aid and advice of the Council of Ministers except where he under the Constitution has been expressly authorised to exercise such functions in his discretion. This Court, speaking through L. Nageswar Rao, J., described this relation of the Governor and the Council of Ministers as “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”. The relevant observations read as under: “18. The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution. Article 162 makes it clear that the executive power of the State shall extend to matters with respect to which the legislature of the State has power to make laws. Article 163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

19. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution

p. 1124

has set up. Our Constitution, though federal in its structure, is modelled on the British parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The Governor occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part

20. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360, the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.

21. Even though the Governor may be authorised to exercise some functions, under different provisions

p. 1125

of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion.” (ii) Secondly, it observed that the law is clear and explicit – the advice of the State Cabinet is binding on the Governor when it comes to the exercise of powers under Article 161. In the absence of any other provision under the Constitution or any statute in this regard, the Governor could not have deviated from the binding recommendations of the State Cabinet and referred the mercy petition to the President. It was held that such an action is contrary to the constitutional scheme. The relevant observations read as under: “24. The law laid down by this Court, as detailed above, is clear and explicit. The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article

161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above. [...] It is relevant to point out that the recommendation made by the State Cabinet was on 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the appellant’s sentence to the President of India.” (Emphasis supplied)

p. 1126

(iii) Thirdly, as regards the inaction of the Governor in deciding the mercy petition for more than two-years, this Court held that although there is a certain degree of immunity with respect to the exercise of powers by the Governor under the Constitution, yet it is an equally settled position that the courts have the power to judicially review the functioning of the Governor on certain grounds. It held that a non-exercise of these powers, such as, under Article 161 is one such ground for the exercise of judicial review as the said provision pertains to the liberty of individuals and any inexplicable delay not on account of the prisoners, is inexcusable. The relevant observations read as under: “24. [...] It is relevant to point out that the recommendation made by the State Cabinet was on 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the appellant’s sentence to the President of India.

25. We are fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties. However, as held by this Court in numerous decisions, this Court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds. Non-exercise of the power under Article 161 is not immune from judicial review, as held by this Court in Epuru Sudhakar v. State of A.P. Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting

p. 1127

him the benefit of remission/commutation of his sentence.” (Emphasis supplied)

(iv) Lastly, as regards the contention of the respondents that the decision of the Governor to forward the mercy petition to the President was done in exercise of his discretion owing to the irrational recommendation of the Cabinet in line with the ratio of M.P. Special Police (supra), this Court held that the aforesaid decision would not be applicable, since there is nothing to make out a case of irrational or non-consideration of relevant factors by the State government to warrant the Governor exercising his discretion and deviating from their recommendations as laid down in M.P. Special Police (supra). The relevant observations read as under: “29. We are afraid that the judgment of this Court in M.P. Special Police Establishment is not applicable to the facts of the present case. No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the State Cabinet having based its recommendation on extraneous considerations. Moreover, in the said case, the Governor had taken a decision which was subsequently challenged, unlike the present case, where the Governor has merely forwarded the recommendation made by the State Cabinet to the President of India.” Accordingly, this Court held as under: “38. In conclusion, we have summarised our findings below: 38.1. The law laid down by a catena of judgments of this Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution. 38.2. Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review

p. 1128

by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect. 38.3. The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two-and-a-half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby “the Governor is but a shorthand expression for the State Government” as observed by this Court. 38.4. The judgment of this Court in M.P. Special Police Establishment has no applicability to the facts of this case and neither has any attempt been made to make out a case of apparent bias of the State Cabinet or the State Cabinet having based its decision on irrelevant considerations, which formed the fulcrum of the said judgment. [...]” (Emphasis supplied)

231. What is discernible from a reading of the decisions discussed above is that despite there being no prescribed time-limit for the Governor to take a decision under Article 200, the provision cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State. As held in A.G. Perarivalan (supra), the inaction of the Governor would be subject to judicial review and in the absence of any cogent reasons for the delay, it would be open to the courts to issue directions for a time-bound decision on a case-to-case basis.

232. In Purushothaman Nambudiri (supra), two questions fell for the consideration of this Court; first, whether a bill which has been pending for assent before the President or the Governor could be said to have lapsed with the dissolving or dissolution of the State legislative assembly and secondly, whether Article 200 mandates that a bill sent back by the President or the Governor for reconsideration must be looked into by the very same House that originally passed it. Before looking into the effect of the dissolution of the House on bills

p. 1129

pending before the Governor for assent, the Court, while examining the effect of prorogation of the House on the bills pending before the State legislature, observed that Article 196 of the Constitution that deals with the introduction and passing of bills in the State legislature reinforces that the parliamentary form of government established under the Constitution is markedly different from the Parliament in England inasmuch as clause (3) of Article 196 explicitly stipulates that a bill pending in the legislature of a State will not lapse by reason of the prorogation of the House or Houses thereof.

233. Thereafter, the Court observed that Article 196(5) provides for three categories of cases where a bill pending before a Legislative Assembly would lapse upon its dissolution. Those are as follows: a. A bill pending before the Legislative Assembly of a unicameral State legislature; b. A bill pending before the Legislative Assembly of a bicameral State legislature; or c. A bill which originated in the Legislative Assembly and is yet to reach the Legislative Council.

234. In light of the aforesaid, the Court reached the conclusion that since Article 196 only stipulates as to when a bill pending in the State legislature could be said to have lapsed, be it the Legislative Assembly or the Legislative Council, any bill which has been passed by the State legislature and is pending assent of the Governor or President, would be outside the ambit of the doctrine of lapse of pending business as contained in Article 196(5) of the Constitution. Had the intent of the framers of the Constitution been otherwise, a specific provision to that effect providing for lapse of a bill awaiting assent would have been inserted. The natural corollary of the omission of the aforesaid is that Article 196(5) is exhaustive in nature, and only the circumstances enumerated therein would result in any lapse of a pending bill, as otherwise there was no need for inserting clause (5) in Article 196 after having already provided the situations where a bill would not lapse in clause(s) (3) and (4) of the Constitution respectively.

235. Thereafter, the Court adverted to Articles 200 and 201 of the Constitution respectively in order to determine the effect of dissolution on bills pending the assent of the Governor or the President. Adverting

p. 1130

to the procedure prescribed under Articles 200 and 201 respectively, the Court noted that both the Articles do not prescribe a time-limit within which the Governor or President are required to come to a decision on the bill presented to him unlike other provisions in the Constitution where it was felt necessary and expedient to prescribe a time-limit such as Articles 197(1)(b) and (2)(b) respectively. This, in the opinion of the Court, necessarily meant that the omission in prescribing a time-limit within which the Governor or the President should reach a decision under Articles 200 and 201 respectively suggests that the framers of the Constitution knew that a bill pending the assent of the Governor or the President does not stand the risk of getting lapsed on the dissolution of the Assembly. Any other contrary view would lead to a chilling effect whereby a fair number of bills which may have been passed by the Assembly during the last months of its existence, may be exposed to the risk of lapse, consequent to the dissolution of the Assembly, unless assent is either withheld or granted before the date of the dissolution, which could not have been the intention in the absence of a time-limit under Articles 200 and 201 respectively. The relevant observations read as under: “15. It is clear that if a Bill pending the assent of the Governor or the President is held to lapse on the dissolution of the Assembly it is not unlikely that a fair number of Bills which may have been passed by the Assembly, say during the last six months of its existence, may be exposed to the risk of lapse consequent on the dissolution of the Assembly, unless assent is either withheld or granted before the date of the dissolution. If we look at the relevant provisions of Articles 200 and 201 from this point of view it would be significant that neither Article provides for a time limit within which the Governor or the President, should come to a decision on the Bill referred to him for his assent. Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide : Article 197(1)(b) and (2)(b)). In fact the proviso to Article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message. Therefore, the failure to make any provision as to the time within which the Governor or

p. 1131

the President should reach a decision may suggest that the Constitution-makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of lapse on the dissolution of the Assembly. That is why no time limit was prescribed by Articles 200 and 201. Therefore, in our opinion, the scheme of Articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly, and that incidentally shows that the provisions of Article 196(5) are exhaustive.” (Emphasis supplied)

236. What is clearly discernible from a plain reading of the aforesaid decision is that the observations as regards the absence of a time-limit under Articles 200 and 201 respectively were made in the context of the impact of dissolution of the State legislature on the bills which were pending assent from the Governor. Applying the doctrine of constitutional continuity of the State legislature as an institution and the absence of any specific time-limit prescribed under Article 200, the Court arrived at a finding that such bills would not lapse by virtue of dissolution of the State legislature. It is important to note that the observations in Nambudiri (supra) were not made in the context of the expediency with which the Governor is expected to act in discharge of his duties under Article 200. Further, while this Court said that there was no prescribed time-limit in Article 200, it held that the reason for this was that the framers of the Constitution knew that such a bill would not lapse automatically with the dissolution of the House. It was never observed or even remotely indicated by this Court that the exercise of power by the Governor under Article 200 was not of an urgent or expedient character and thus, could be exercised even beyond reasonable time.

237. It is crucial to understand that the prescription of a general time-limit by this Court within which the ordinary exercise of power by the Governor under Article 200 must take place, is not the same thing as amending the text of the Constitution to read in a time-limit, thereby fundamentally changing the procedure and mechanism of Article 200. This is because, reading such a time-limit into the provision neither militates against the underlying object of the said provision nor does it alter the procedure that is envisaged therein. On the contrary, it

p. 1132

only reinforces the sense of expediency and urgency that has been time and again emphasized since the adoption of the Constitution. The reason why the prescription of a time-limit does not tantamount to an alteration or amendment is because the time-limit that is being prescribed by cannot be understood to be a hanging sword on the Governor whereby even an unavoidable non-compliance would automatically ensue consequences of ‘assent’. The nature of such prescription is quite different which may be better explained through the concept of judicial review.

238. For the exercise of judicial review, the existence of a certain set of definitive standards against which the courts can embark upon their scrutiny, is quintessential. Without these standards, the power of judicial review could be said to be ineffective in certain contexts which shall be elucidated upon in the latter parts of the judgment. The doctrine of stare-decisis is not just concerned with ensuring that decisions of higher courts or of larger benches are duly adhered to and questions of law already settled and put to quietus by higher judicial authorities are not disturbed. The idea is also to infuse a sense of judicial comity within the intertwined hierarchical courts in the manner of their functioning. Additionally, one of the core precepts of stare-decisis is that not only the decisions but the very decision- making process of the courts are predicated upon a discernible standard, often coined as ‘judicially manageable standards’. We shall discuss this in more detail in the later parts of this judgment.

239. Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers. These timelines no doubt demand the earnest adherence by the Governor, however, these being nothing more than tools upon which scrutiny by judicial review is to be premised, remain as prescriptions within the realm of judicial review alone and do not transgress into the legislative bounds or amount to alteration of the text or authority of Article 200 of the Constitution. The reason why these time-lines do not immolate the very fabric of Article 200 is because the said provision even with the infusion of these time-limit still remains markedly different from its counterpart

p. 1133

provisions where such time-limits are legislatively prescribed. For instance, Article 75 of the Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of the U.S. Constitution, where if no decision is taken within the stipulated time-limit by the President then the bills are deemed to have been assented to.

240. Thus, it is important to take note of this very fine but pertinent distinction that the prescription of a time-limit by this Court into Article 200 of the Constitution does not fundamentally change the procedure which has been envisaged. While the reading in of a time-limit under Article 200 would have meant that there would be deemed assent upon failure of the Governor to comply with the said timeline, the prescription of a reasonable time period does not introduce any such mechanism or deeming fiction in Article 200.

241. What emerges from the above is that the fine but pertinent distinction between the time-limits that are expressly prescribed and those that are judicially evolved is only that in the former the consequence of deemed assent emanates from the provision itself whereas in the latter there could be no such consequence except to the extent that the courts judicially reviewing the action or inaction can direct a decision to be taken within a time-bound manner, or in exceptional cases like the one at hand, deem the assent to have been granted under Article 142 of the Constitution, which we shall again discuss in the later parts of this judgment.

242. When prescribing such a time-limit for the exercise of power under Article 200, we are guided by the inherent expedient nature of the procedure prescribed thereunder and the well-settled legal principle that where no time-limit for the exercise of a power is prescribed, it should be exercised within a reasonable period.

243. What would be a reasonable period would vary from situation to situation, however, in the present case, taking guidance from the timelines that have been prescribed by the Sarkaria and the Punchhi Commission, we have arrived at the view that in the absence of any exceptional circumstances, the Governor would be able to exercise his powers under the Article within the maximum period prescribed by us.

244. While the reading in of an absolute time-limit would have left the Governor with no choice but to comply with it, the prescription of the judicially evolved time-limits by us leaves it open for the Governor

p. 1134

to justify the delay caused by providing reasonable grounds. Delay caused by the Governor beyond the prescribed time-limits would be justiciable and the courts, with deference to applicable judicial principles, would be fully competent to ascertain whether the delayed exercise of power by the Governor under Article 200 was based on any reasonable grounds or not.

245. The prescription of a time-limit is with a view to ensure that the Governor is not conferred with the power of exercising a pocket veto under the scheme of Article 200, and hinder the law-making process in the State without the existence of any reasonable grounds. While the decision in Nambudiri (supra) does not make the prescription of such a time-limit by the Court impermissible, the decisions, adverted to above, vest this Court with sufficient power to ensure that the procedure prescribed under Article 200 is followed by the Governor in a constitutionally permissible manner and in line with the principles of parliamentary democracy keeping in mind the nature of the power. Such an approach also ensures that the State governments are not left remediless in cases of malicious, arbitrary or capricious exercise of power by the Governor under Article 200.

246. We also deem it necessary to prescribe a timeline for the discharge of functions by the Governor under Article 200. The Sarkaria and Punchhi Commissions in their reports adopted this view, keeping in mind the importance of an expeditious decision under Article 200 for the smooth functioning of electoral democracy in the States. An elected government gets the mandate of the people for a limited period of five-years within which it is expected to legislate on issues pertaining to the electorate. If the Governor, for whatsoever reasons, exhibits reluctance or lethargy in decision making, particularly when it is concerned with the assent to bills, it severely impacts the ability of the government to act upon its mandate and deliver to the people who brought them into power. Any obstacle created by the Governor, whether advertently or inadvertently, severely impacts the perception of the elected government in the subsequent elections and thereby also negatively affecting their chances of coming back into power. The problem is further exacerbated when the political party in power in the State is different from the one at the Centre, and the Governor should be more cautious and non-partisan in the exercise of his functions in such a scenario. Any deliberate inaction on part of the Governor in assenting to bills or reserving them for the consideration

p. 1135

of the President, thus, has to be viewed as a serious threat to the federal polity of the country and the aggrieved governments cannot be left remediless, desperately waiting for a decision at the hands of the Governor.

247. This Court in State of Punjab (supra) held that the Constitution terms any inaction on part of the Governor as deplorable and that he cannot indefinitely keep the bills passed by the State legislature on a chokehold. The relevant observations read as under: “24. [...] 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.” (Emphasis supplied)

248. It is not unusual for this Court to prescribe time-limits for the discharge of certain functions, even in cases where no specific time-limit has been prescribed. Recently, in Periyammal (Dead) thr. LRs & Ors. v. Rajamani & Anr. Etc. reported in 2025 INSC 329, a two-Judge Bench of this Court, of which one of us (J.B. Pardiwala, J.) was a part, directed all the High Courts to issue directions to all the District Courts to decide pending execution petitions within a period of six- months without fail. The directions read as follows: “75. In view of the aforesaid, we direct all the High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions. Once the data is collected by SLP (C) Nos. 8490, 8491 & 8492 of 2020 Page 77 of 78 each of the High Courts, the High Courts shall thereafter proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the concerned presiding officer would be answerable to the High Court on its administrative side. Once the entire data along with the figures of pendency and disposal thereafter, is collected by all the High Courts,

p. 1136

the same shall be forwarded to the Registry of this Court with individual reports.”

249. We have already discussed that in Keisham (supra), a three-Judge Bench of this Court fixed an outer time-limit of three-months for the Speaker to decide disqualification petitions under the Tenth Schedule. The Court pertinently observed that the said period was fixed “keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is five- years”. This Court has also, in a number of decisions, set down and reiterated that the High Courts must pronounce judgments on reserved matters within a period of six-months. Inaction on part of any constitutional authority being subject to judicial review, it is important that there are reasonably laid down standards of justiciability of such inaction, and the timelines prescribed by us serve that purpose. Even the Constituent Assembly had initially laid down a period of six-weeks for the President to take action on bills submitted to him under Article 111. However, that was later changed to account for any exceptional circumstance that may arise in the discharge of functions by the President or the Governor. However, the expression “six-months” was replaced with “as soon as possible”, which though not determinable, envisages an expeditious disposal of bills, unless in cases where some impossibility exists. The prescription of timelines by us balances the objective of expediency as well as the desirability of having some flexibility in cases of existence of an impossibility in discharge of functions in an expeditious manner. Flexibility in the discharge of a function cannot be allowed to be stretched to an extent that renders the very object underlying such function otiose, resulting into the proverbial snapping of the constitutional machinery.

250. Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the following timelines are being prescribed. Failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts: (i) In case of either withholding of assent or reservation of the bill for the consideration of the President upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith subject to a maximum period of one-month;

p. 1137

(ii) In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three- months; (iii) In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months; In case of presentation of bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month.

251. Failure to comply with the timelines prescribed above would make the inaction on part of the Governor amenable to judicial review. We shall also deal with the necessity of expeditiously disposing of the references under Article 201 by the President in subsequent parts of this judgment.

iv. Whether the Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers?

252. Significant time was spent during the course of the arguments on the key issue of the scope of discretion enjoyed by the Governor in exercise of his powers under Article 200, more particularly, as regards the reservation of bills for the consideration of the President.

253. Mr. Rohatgi, learned Senior Counsel, submitted that the act of the Governor amounts to a subversion of the Constitution. He further emphatically submitted that it indeed amounted to a subversion of the Constitution.

254. He also submitted that there was no discretion available to the Governor under the scheme of Article 200 of the Constitution and the only exception to the same was provided in the second proviso to Article 200 itself. In other words, he contended that the Governor could only reserve a bill against the advice tendered to him by the Council of Ministers, if the bill was of a description as provided in the second proviso. He submitted that in all other cases, the reservation of a bill for the consideration of the President had to take place strictly in accordance with the advice of the Council of Ministers.

p. 1138

255. This argument was also endorsed by Dr. Singhvi, who added that the observations made in B.K. Pavitra (supra) as regards the discretion of the Governor under Article 200 of the Constitution have to be understood in the context of the reservation taking place on the aid and advice of the Council of Ministers.

256. Mr. Dwivedi, placing reliance on the deletion of the expression “in his discretion” from both the substantive part of Article 200 as well the first proviso by the Constituent Assembly, proposed an even stricter interpretation of Article 200. He argued that the deletion of the expression “in his discretion” indicated that the intention of the framers of the Constitution was crystal clear that the Governor should have no semblance of discretion while exercising his powers under Article 200 and he should act in accordance with the advice rendered by the Council of Ministers. He further submitted that it is not just reservation of the bills for the consideration of the President, but the grant of assent, as well as the decision to send the bill back to the State legislature together with a message upon the withholding of assent, which must be taken strictly in accordance with the advice of the Council of Ministers.

257. The Attorney General, per contra, argued that while exercising his powers under Article 200, the Governor is discharging an important constitutional obligation, and even if he does not exercise individual discretion, he may still act against the aid and advice of the Council of Ministers if he is so required to, in the discharge of his constitutional duties.

258. An answer to the aforesaid question cannot be arrived at without first answering the following sub-questions: a. How has the office of the Governor been envisaged by the constitutional scheme? In what manner does he play a dual role in the federal polity of the country? b. Whether the Governor enjoys a certain degree of discretion in discharge of his duties under the Constitution? What is the source of such discretion? c. Does the deletion of the expression “in his discretion” from Article 175 of the Draft Constitution imply that the Governor has no discretion available in the exercise of his powers under Article 200?

p. 1139

a. The Office of the Governor

259. With the enactment of the Government of India Act, 1858, the administration of India transitioned from the East India Company to the British Crown, bringing about a new administrative framework wherein the Governor, as an agent of the Crown, operated under the general supervision of the Governor-General. While this structure prevailed, the Montagu-Chelmsford Reforms of 1919, which culminated into the GoI Act, 1919, marked the early stirrings of responsible government, albeit in a nascent form. Despite this shift, the Governor remained central to the provincial administration, continuing to wield significant authority.

260. The GoI Act, 1935, ushered in the era of provincial autonomy and formally required the Governor to act on the advice of the Ministers who were accountable to the provincial legislature by abolishing the system of dyarchy at the provincial level, while introducing it at the central level. However, the Act also conferred upon the Governor certain special responsibilities, such as maintaining peace and tranquility within the province and safeguarding minority interests. These responsibilities necessitated the exercise of discretion by the Governor in specific matters. Further, the autonomy of the Governor in such cases remained subject to the general superintendence and control of the Governor-General, ensuring oversight over the exercise of his individual judgment.

261. The declaration of Independence brought about a fundamental transformation in the role of the Governor. Until the Constitution came into effect, the provisions of the GoI Act, 1935, as modified by the India (Provisional Constitution) Order, 1947 (for short, the “Adaptation Order”), governed the administration of the country. Significantly, the Adaptation Order omitted the expressions ‘in his discretion’, ‘acting in his discretion’, and ‘exercising his individual judgment’ from the Act, signaling a departure from the colonial framework.

262. One of the key decisions that the framers of the Constitution had to take was to decide the mode of selection of the Governor - whether he should be elected by way of a direct election, or selected from a panel of names suggested by the State legislature, or nominated by the President. While in the early days, the Constituent Assembly leaned towards having an elected Governor, as the framing of the Constitution neared its conclusion, there was increasing support in

p. 1140

favour of having a Governor nominated by the President. Jawaharlal Nehru attributed this shift of opinion to the bitter experience of partition, which, according to him, opened the eyes of the Constituent Assembly to the dangers of separatism and the need for having a political structure which focused more on the character of the nation as a Union of States rather than a federation.

b. Constituent Assembly Debates on the mode of Selection of the Governor

263. The speeches made by some of the members of the Constituent Assembly on Article 155 of the Constitution broadly encapsulate the ideas which were debated and rejected before nomination was selected as the mode of appointment for the Governor.

264. Speaking in favour of appointment of Governors by Presidential nomination, Shri. H.V. Kamath was of the opinion that the concept of an elected Governor would undermine the structure of the country as a Union of States, since a Governor elected directly by the people on the basis of adult suffrage would place more emphasis on India being a federation. However, according to him, “the emphasis today is more upon the Union pattern of our State than upon its Federal aspect”13. He believed that an elected Governor, being a partisan figure, would inevitably clash with the Chief Minister, thereby disrupting the functioning of a cabinet-style government. According to him, the role of a constitutional head should be impartial and symbolic, and the nomination system was better suited to uphold these principles. He further elaborated on the potential tussle that would ensue between an elected Governor and the Chief Minister of the State as follows: “[...] If the Governor were to be elected by the direct vote of all voters in a province he is very likely to be a party- man with strong views of his own, and considering that he will be elected by the whole province—by the entire adult population of the province— he will think that he is a far superior man and a far more powerful man that the Chief Minister or Premier of the State who will be returned from one constituency only, but because he happens to be the

13 8, Constituent Assemb. Deb., (May 30, 1949) 428.

p. 1141

leader of the majority party, he will be nominated Premier by the Governor. There will be two conflicting authorities within the State : one is the Premier, whom, under this Constitution which we are considering today, we have invested with executive authority so far as the State is concerned, and the other is the Governor, who, though the Constitution does not confer on him very substantial powers and functions, will arrogate much to himself, because he will say that “I have been elected by the people of the whole province and as such I am persona gratia with the people and not the Chief Minister”. Therefore, there will be in the administration of the province at every turn—if not at every turn, then very often—points of conflicts or friction between the elected Governor and the elected Chief Minister. Therefore, I think we have done very wisely in deleting or in doing away with the system of election for the Provincial Governor.”14

265. Shri. Hukam Singh, opting for the middle path, acknowledged the difficulties inherent in both pure election and pure nomination for the purpose of appointment of Governors. While agreeing with Shri. H.V. Kamath on the drawbacks of an elected Governor, such as the potential for conflict with the Chief Minister and the high costs involved in conducting elections, he proposed a balanced alternative, suggesting that a panel of candidates be nominated by the State legislature and a Governor be chosen from the said panel. This method, while allowing for some discretion would also ensure public accountability since the merits of those individuals who had been recommended in the panel would be publicly available and if the right person was not chosen, then the selection would also be criticized publicly. In his view, this approach would reduce favoritism, enhance transparency, and provide a safeguard against the abuse of power, striking a middle ground between the extremes of election and direct nomination.

266. Shri. Rohini Kumar Chaudhari opposed the nomination of Governors, cautioning that a Centre-appointed Governor belonging to a different political party than the provincial government could lead to discord and undermine provincial autonomy. The friction that would result

14 8, Constituent Assemb. Deb., (May 30, 1949) 428-429.

p. 1142

from adopting a system wherein Governors are elected would also exist, according to him, when a Governor is nominated, since the nominee of the President would not work in harmonious tandem with the Ministry of the State which belongs to a different political party than the one which enjoys power at the Centre. He argued that electing Governors would ensure that they are more attuned to the needs of all communities, including marginalized groups like tribal populations in States where the Governor would have an even more important role to play. He criticized the reliance on British precedents and advocated for a more democratic process, such as election or selection from a panel, to reflect the will of the people and to also safeguard provincial interests.

267. Shri. Alladi Krishnaswami Ayyar was of the view that since the Governor is merely a constitutional head of the province and the real executive power had been vested in a ministry responsible to the Lower House of the different States, it seemed rather unnecessary, under such circumstances, to adopt the method of election based on universal suffrage for the appointment of the Governors. The nomination of Governors by the President would, in his opinion, mitigate constitutional conflicts and foster harmonious relations between the Governor and the provincial Cabinet. He argued that an elected Governor, deriving authority from universal suffrage, might assert dominance over the Cabinet, leading to significant constitutional risks. He specifically remarked that, “In the normal working of the Government also there is danger of a clash between the Minister and the Governor, whereas the whole basis of the constitutional structure we are erecting depends upon the harmony between the legislature and the executive, and between the executive and the formal head of the Government”.15 Drawing inspiration from the Canadian model, he suggested that the President’s appointment of Governors, guided by the advice of the provincial Cabinet, would ensure stability and sound governance. Furthermore, according to him, “Nowhere does the system of election of the Governor exist where the Institution of responsible government is the main feature of the Constitution”.16 He believed that this system would better serve the interests of the provinces and the nation as a whole.

15 8, Constituent Assemb. Deb, (May 30, 1949) 431. 16 8, Constituent Assemb. Deb., (May 30, 1949) 431.

p. 1143

268. It was his belief that while the method of nomination was the most appropriate one, a convention of appointing Governors in consultation with the State government would grow. This, when read with the other discussions which took place in the Constituent Assembly, indicate that the framers of the Constitution reposed trust that the Governor would not be a cipher of the Central government, would be a person above party politics and would not attempt to override the State government with his actions. He also supported the idea of having nominated Governors on the ground that the intervention of the Governor would be required only in extraordinary situations, and an elected Governor may come in conflict with the provincial Cabinet by trying to override their decisions. His words are reproduced below: “I see no objection to the appointment of the Governor being left to the President of the Union who has necessarily to act on the advice of the Prime Minister and his Cabinet. A convention, of consulting the provincial Cabinet might easily grow up. Such a convention, as the House is aware, has grown up in the appointment of Governors in Canada. In Australia too, though under a different Constitution, a similar convention has grown up and the Governor of a State is appointed on the advice of the provincial Cabinet. […] There is another aspect also which the House might take into consideration. In our Constitution we must try every method by which harmony could be secured between the Centre and the provinces. If you have a person who is not elected by the province or the State but you have a person appointed by the President of the Union with the consent, I take it, of the provincial Cabinet, you will add a close link between the Centre and the provinces and a clash between the provinces and the Centre will be avoided which will otherwise occasionally result. Then there is another point. It is said that the Governor may occasionally have to use his extraordinary powers. This point is more in favour of nomination rather than in favour of election. If the person who is elected on the basis of universal suffrage is to come into clash with the provincial Cabinet and if he is to set himself above the provincial Cabinet, there will be a greater constitutional danger. Even if circumstances arise when intervention by the Governor is necessary it will be

p. 1144

only on extraordinary occasions. Even for that intervention a person who is nominated or appointed by the President with the concurrence of the provincial Cabinet is likely to take far greater care than a person who is elected by the people. On the whole, in the interest of harmony, in the interests of good working, in the interests of sounder relations between the provincial Cabinet and the Governor, it will be much better if we adopt the Canadian model and have the Governors appointed by the President with the convention growing up that the Cabinet at the Centre would also be guided by the advice of the provincial Cabinet.” (Emphasis supplied)

269. Shri. P.S. Deshmukh was of the opinion that there exist a few fundamental considerations which have to be kept in mind while discussing the appointment of the Governor. The first of these fundamental considerations was that, “if we decide that the Governor should be elected by the province on the basis of adult franchise, then it follows logically that he should be a real executive authority. On the other hand, if you want him to be mere figurehead, if you want him to have exactly the same position as he has today under the 1935 Act and which is exactly the position which is assigned to him under the Draft Constitution, you cannot but have him appointed by the President.”17. In light of this, he buttressed his view that Governors must be nominated and not elected. Regarding the concern that adopting a system of nominating the Governor would give undue power to the Prime Minister and the President, he opined that the Prime Minister would also be a popular Prime Minister and that he can only be there as long as he has the support of the Parliament elected by the people at large. Therefore, his view was that we must not hesitate in giving powers of patronage to the Prime Minister or the President. He also expressed concerns about the potential discord between an elected Governor and the Chief Minister or Premier, which could disrupt governance. Apart from the very real possibility of conflicts between the elected Governor and the Chief Minister which necessitated appointment via nomination, he argued, on the other hand that, if there was no conflict and there

17 8, Constituent Assemb. Deb., (May 30, 1949) 433.

p. 1145

was perfect agreement or collusion between the Governor and the Chief Minister, they could agree in defying the Centre altogether and that would put the Centre in a precarious position where they would be completely blocked out from the States. Therefore, he remarked that, “But apart from the conflict, if there is no conflict and there is perfect agreement, if these two gentlemen set the Centre at naught, what will be the position?”18. Hence, in his opinion, the appointment of Governors by the President would maintain a balance of power and ensure some degree of Central influence over provincial matters. He further suggested that Governors should serve at the pleasure of the President, thereby eliminating the need for impeachment provisions and also reinforcing the oversight of the Centre.

270. Shri. Hriday Nath Kunzru highlighted the potential for friction between Governors and their Cabinets, specifically with reference to Article 175 of the Draft Constitution, which has now been adopted as Article 200. By drawing comparisons to the Canadian model, he argued that empowering the President to disallow provincial bills directly by overriding the assent of the Governor within a certain prescribed period of time from the date of such assent, rather than relying on the Governors as intermediaries who refer the bill for the consideration of the President, would centralize responsibility with the Central Executive and reduce conflicts at the provincial level. In his view, this approach would align with the principles of responsible government and ensure smoother governance.

271. Pandit Jawaharlal Nehru emphasized the need to foster unity and avoid separatist tendencies within the nation. He believed that an elected Governor could exacerbate provincial divisions and weaken ties with the Centre. In his opinion, “Nevertheless a certain convention and practice helps or hinders the growth of separatist tendencies. I feel that if we have an elected Governor that would to some extent encourage that separatist provincial tendency more than otherwise. There will be far fewer common links with the Centre.”19 He argued that duplicating the electoral process for the office of Governor would be unnecessary and counterproductive, leading to conflicts, wastage of resources, and disruptive tendencies. Supporting the nomination

18 8, Constituent Assemb. Deb., (May 30, 1949) 434. 19 8, Constituent Assemb. Deb., (May 31, 1949) 455.

p. 1146

of Governors, he asserted that this approach would align with the parliamentary system of democracy and strengthen the relationship between the provinces and the Centre.

c. Constituent Assembly Debates on the Exercise of Discretion by the Governor

272. The other key question which fell for the consideration of the Constituent Assembly was whether any discretion would be made available to the Governor as the constitutional head of the State. Article 163(1) of the Constitution, which describes the nature of such discretionary powers, reads as follows: “(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”

273. To understand the true import and the scope of this discretion which exists with the Governor, it would be apposite for us to look into the Constituent Assembly debates pertaining to this Article in some detail. Article 163 which provides for the Council of Ministers to aid and advice the Governor was earlier numbered as Article 143 under the Draft Constitution. Two amendments were sought to be moved to draft Article 143 on the 1st of July 1949; however, those did not gain the approval of the Constituent Assembly and the original version of draft Article 143 came to be later adopted as Article 163 as we see it today.

274. Of the two amendments, one of which was moved by Shri. H.V. Kamath sought to delete the expression, “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”. Shri. H.V. Kamath was of the opinion that the draft Article had been blindly copied from the GoI Act, 1935, without any mature consideration. He further remarked that, “There is no strong or valid reason for giving the Governor more authority either in his discretion or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers”20. Investing

20 8, Constituent Assemb. Deb., (Jun. 1, 1949) 489.

p. 1147

such wide discretionary powers on the Governor was all the more problematic, according to him, since Governors are nominated to their positions and not elected. No departure from the principles of a constitutional government must be favored except for reasons of emergency and therefore, he advocated for these discretionary powers to be done away with.

275. However, Shri. T. T. Krishnamachari pointed out that there existed specific provisions under the Draft Constitution wherein the Governor was in fact empowered to act in his discretion, irrespective of the advice tendered by his Council of Ministers. Therefore, according to him, there were two ways of drafting which would capture the aforesaid underlying idea: One, would be to make a mention of this exception under draft Article 143 itself and enumerate the specific scenarios where the Governor would be able to exercise his discretion in the subsequent relevant articles or; Two, would be to leave out any mention of this discretionary power under draft Article 143 and only state it in the appropriate article that will follow. In the case of draft Article 143, according to him, it was only that the former method had been followed. Therefore, the general proposition or the default rule would be that “the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion.”21

276. As an illustration, Shri. T.T. Krishnamachari referred to draft Article 188 which related to the proclamation of Emergency in States by the Governor under his discretion. It was his opinion that if such a discretionary power can be given under draft Article 188, there is no harm in the mention of discretion under draft Article 143 either. He understood the scheme of the draft Constitution to mean that unless there is a specific mention of discretion under any subsequent Article, the discretionary power mentioned under draft Article 143 cannot at all be exercised.

277. Shri. Brajeshwar Prasad was not in favor of the amendment that was put forth since he was of the opinion that the Governor should be vested not only with the power to act in his discretion but also with the power to act in his individual judgement. He was of the

21 8, Constituent Assemb. Deb, (Jun. 1, 1949) 491.

p. 1148

view that there was a dearth of leadership in the provinces wherein competent men were not available and unless the Governor is vested with large powers, it would be difficult to effect any improvement in the provincial administration. He went to the extent of saying that though such a procedure may be considered as undemocratic, it would be in the interest of the country. He remarked that, “I cannot allow democracy to jeopardize the vital interests of the country […] The masses who ought to be the rulers of this land are down-trodden and exploited in all ways. Under these circumstances there is no way left open but for the Government of India to take the Provincial administrations in its own hands”22. In his opinion, federalism could not succeed in a country which was passing through a transitory period and therefore, he subscribed to the view that power must be vested at the Centre and as a natural corollary, the Governor must be able to act in his discretion.

278. Shri. Mahavir Tyagi was also in agreement with the view that the Governor must be granted discretion. In his opinion, the State must be kept linked together with the Centre and the Governor would be the agent who guards the Central policy in the provinces/States. There would be certain subject-matters which affect the whole body politic and the provinces/States cannot be left free of the policy at the Centre. Since the policy which is evoked in the Centre must be followed by all the States, and if the Governors were to be in the hands of the provincial Ministers, then there will be various policies in various provinces and ministers of various types having different party labels and programmes would push their own agenda. Therefore, it was his view that, “The Governor being the agency of the Centre would be the only guarantee to integrate the various provinces/States”23. According to him, this is why the Governor’s discretionary powers should not be interfered with. He went on to remark that democratic trends are like a wild beast and that it goes by the whims and fancies of the parties and the masses. There must be some machinery which would keep this wild beast under control. It is in such a reality that the Governor exercising his discretion acts as a guardian of the Central policy on one side and the Constitution on the other.

22 8, Constituent Assemb. Deb., (Jun. 1, 1949) 492. 23 8, Constituent Assemb. Deb., (Jun. 1, 1949) 495.

p. 1149

279. Shri. B.M. Gupta was of the view that if certain powers had to be given to the Governor, our endeavor must be to restrict them as far as possible so that the Governor’s position as a constitutional head may be maintained.

280. Shri. Alladi Krishnaswami Ayyar echoed the stance taken by Shri T.T. Krishnamachari. He stated that, in the first place, a general principle under Article 143 is laid down, namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should normally act on the advice of his ministers. Then, the Article goes on to carve out an exception as regards the matters under which the Governor is required to exercise certain functions under his own discretion. Therefore, it was his conclusion that as long as there are articles under the Constitution which enable the Governor to act in his discretion, the draft Article 143 as it was framed was perfectly in order. In certain circumstances, this exercise of discretion may be to override the Cabinet or to refer to the President. If later on, the Constituent Assembly were to arrive at the conclusion that those subsequent Articles which enable the Governor to act in his discretion in specific cases must be deleted, it would be open to revise draft Article 143. But as long as there are Articles occurring later in the Constitution which permit the Governor to act in his discretion and not on ministerial responsibility, the present draft Article 143 was drafted rightly.

281. The only other question, in his opinion, was to see whether the Constituent Assembly had to first make a provision under draft Article 143 that the Governor shall mandatorily act on ministerial responsibility and then go on to provide “Notwithstanding anything contained in Article 143, [...] he can do this” or that “Notwithstanding anything contained in Article 143, he can act in his discretion” in the subsequent relevant Articles. However, he favored the method of drafting that had already been adopted i.e., to provide in draft Article 143 itself that the Governor shall always act on ministerial responsibility excepting in particular or specific cases where he is empowered to act in his discretion. If, of course, the Constituent Assembly came to the conclusion that in no case the Governor shall act in his discretion, and that he shall in every case act only on ministerial responsibility, then there will be a consequential change to this Article.

p. 1150

282. Pandit Thakur Das Bhargava adopted the notion that the Governor “shall be a guide, philosopher and friend of the Ministry as well as the people in general, so that he will exercise certain functions some of which will be in the nature of unwritten conventions and some will be such as will be expressly conferred by this Constitution.”24 The Governor’s role would transcend party politics and he would look at the Minister and the State government from a detached standpoint. He would also be able to influence the ministers and members of the legislature in such a manner that the administration would run smoothly. In such a circumstance, to say that he is merely a dummy, an automaton or a dignitary without powers would be gravely wrong. According to his conception of a constitutional Governor, the Governor would have to accept the advice of his ministers in many matters but there may also exist many other matters in which such an advice will either be unavailable or wherein he will not be bound to accept that advice. Another illustration, according to him, of when the Governor would act in his discretion would be under draft Article 147 (Article 167 as it stands today) where the Governor can exercise his power of calling for certain information from the Chief Minister. Under this Article, the Governor is competent to ask the Chief Minister to place any matter before the Council of Ministers which only one minister might have decided. When he calls for such information, he will be acting in the exercise of his discretion and may call for any kind of information with a view to control and restrain the ministry from undertaking irresponsible acts. Therefore, he remarked that, “In my opinion taking the Governor as he is conceived to be under the Constitution, he will exercise very important functions and therefore it is very necessary to retain the words relating to his discretion in article 143”25.

283. Shri. Rohini Kumar Chaudhuri put forth the alternate view that it is always better to be governed by the will of the people than to be governed by the will of a single person who could act in his discretion. He remarked that, “If this Governor is given the power to act in his discretion there is no power on earth to prevent him from doing so. He can be a veritable King Stork.”26. Furthermore,

24 8, Constituent Assemb. Deb., (Jun. 1, 1949) 497. 25 Ibid. 26 8, Constituent Assemb. Deb., (Jun. 1, 1949) 499.

p. 1151

the draft Article 143 itself states that wherever the Governor thinks that he is acting in his discretion, he cannot be questioned. According to him, in this day and age, we must not countenance such a state of affairs.

284. While concluding the debate on draft Article 143, Dr. B. R. Ambedkar elaborated that the main and crucial question under this draft Article was whether the Governor must have certain discretionary powers or not. During the course of the debate, it was pointed out that the retention of discretionary powers in the Governor was contrary to responsible government in the States/provinces. It was also stated that the same mimicked the GoI Act, 1935, which was largely assailed as being undemocratic. However, Dr. B. R. Ambedkar was of the undoubted view that “the retention in or the vesting the Governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government.”27 He cited Section 55 of the Canadian Constitution which read as follows: “Section 55. – Where a Bill passed by the House of Parliament is presented to the Governor-General for the Queen’s assent, he shall, according to his discretion, and subject to the provisions of this Act, either assent thereto in the Queen’s name, or withhold the Queen’s assent or reserve the Bill for the signification of the Queen’s pleasure.”

285. He conveyed that the Canadians and the Australians had not found it necessary to delete these provisions even in this day and age and that they were quite satisfied with its retention. This, he argued, was demonstrative of the fact that the grant of such a discretion to the Governor is fully compatible with a responsible government. If they had felt otherwise, they had the fullest right to abrogate this provision and would have done so. Therefore, the existence of a provision vesting a certain amount of discretion in the Governor cannot be questioned. Furthermore, the draft Article reads that, “Except in so far as he is by or under this Constitution” and not that “except wherever he thinks that he should exercise this power of discretion

27 8, Constituent Assemb. Deb., (Jun. 1, 1949) 500.

p. 1152

against the wishes or against the advice of the ministers”28. Therefore, the clause is very limited in nature and would have to be read in conjunction with such other Articles which specifically reserve the discretionary power for the Governor. It must not be construed as a general clause which gives the Governor the power to disregard the advice of his ministers in any matter in which he finds that he could disregard their opinion.

286. Now moving on to how an Article providing for a certain amount of discretionary powers to the Governor is to be framed, Dr. B. R. Ambedkar elaborated that there are several ways in which the same can be done. One way could be to omit the words from draft Article 143 and to add to draft Articles 175 (presently Article 200), 188, or such other provisions, an express mention which vests the Governor with discretionary power. Those Articles would then mention that notwithstanding draft Article 143, the Governor would have a certain discretionary power. Another way would be to state in draft Article 143 itself that “except as provided in draft Articles 175, 188 etc.”, the Governor shall act in accordance with the aid and advice of the Council of Ministers with the Chief Minister at the head. However, irrespective of what method of drafting is adopted, the essential point that would remain is that the Governor’s discretionary power must be acknowledged in some form.

287. Dr. B. R. Ambedkar was open and quite willing to concede to the position of those members who were of the view that the last portion of clause (1) of draft Article 143 must be amended to mention the specific Articles under which the Governor shall exercise discretion, if at that stage of the Constituent Assembly debates the provisions intended for such vesting were already determined. The difficulty was that the Constituent Assembly had not yet arrived at a stage where they could discuss draft Articles 175 or 188, nor had they exhausted all the possibilities of other provisions being made which vested the Governor with discretionary power. If all those possibilities were already known, draft Article 143 could have been amended and those specific Articles could have been mentioned or listed out. Therefore, Dr. B. R. Ambedkar was firmly of the view that no wrong could be done if the words as they stood in the draft Article were retained.

28 8, Constituent Assemb. Deb., (Jun. 1, 1949) 501.

p. 1153

288. While acknowledging that there exists a material difference between draft Article 61(1) (Article 74(1) as it stands today) relating to the executive functions of the President vis-à-vis his Ministers and the draft Article 143, Dr. B. R. Ambedkar elucidated that it was not the intention of the drafters to vest any discretionary power upon the President. It is because the provincial governments are required to work in subordination to the Central government and in order to ensure that they do act in such subordination, the Governor would reserve certain matters, thereby giving the President an opportunity to see that they are broadly in compliance with the policy of the Central government. Through this mechanism, the President would be able to ensure that the rules under which the provincial governments are supposed to act, according to the Constitution, are observed. Therefore, the vesting of discretionary powers in the post of the Governor was considered crucial to enable this administrative dialogue between the Centre and the provinces.

289. What flows from a study of the Constituent Assembly debates concerning the appointment of the Governor and the scope of his discretionary powers is that the Governor plays a very crucial role in the political structure of the country. He is the bridge between the governments at the Central and State level, the proverbial buckle which ties the States with the Centre. The Punchhi Commission Report also acknowledged this dual role of the Governor – one as the custodian of the Constitution in the States and a representative of the Union, and the other as the constitutional head of the State and a “friend, philosopher and guide” of the State government as well as the people. The position of the Governor and how it differs from that of the President were discussed by Dr. B. R. Ambedkar as we have elaborated in the preceding paragraphs. This difference was also taken note of by Krishna Iyer J., in his opinion in Samsher Singh (supra) as we will discuss subsequently. We are of the firm view that this unique position of the Governor must be kept in mind whenever we set out to interpret any provision of the Constitution pertaining to any gubernatorial powers or functions. It is not terminologies like “federal”, “quasi-federal” or “unitary” which should guide our interpretation of the Constitution. In turn, the words and ideas of the wise artisans, who carefully weaved the fabric of the Constitution with threads borrowed from across the world after dying them in colors uniquely Indian, that we should look towards, when in doubt

p. 1154

about the fundamental ideas of our Constitution. The framers of the Constitution were cognizant of the fact that vesting the Centre with excessive powers would not be healthy for the country’s polity. In this regard we may refer to the observations made by the Sarkaria Commission – “there is considerable truth in the saying that undue centralization leads to blood pressure at the Centre and anemia at the periphery. The inevitable result is morbidity, and inefficiency. Indeed, centralization does not solve but aggravates the problems of the people.” Therefore, the curtailing of the powers of the Governor under the Constitution as distinguished from the GoI Act, 1935 was done keeping in mind that the Centre does not arrogate all powers to itself by utilizing the Governor as an intermediary of the Centre at the State.

290. Arijit Pasayat, J., in his dissenting opinion in the decision of this Court in Rameshwar Prasad (supra), observed thus on the role of the Governor: “270. As noted above, the Governor occupies a very important and significant post in the democratic set-up. When his credibility is at stake on the basis of allegations that he was not performing his constitutional obligations or functions in the correct way, it is a sad reflection on the person chosen to be the executive head of a particular State. A person appointed as a Governor should add glory to the post and not be a symbolic figure oblivious of the duties and functions which he has and is expected to carry out. It is interesting to note that the allegations of favouritism and mala fides are hurled by other parties at the Governors who belonged or belong to the ruling party at the Centre, and if the Governor at any point of time was a functionary of the ruling party. The position does not change when another party comes to rule at the Centre. It appears to be a matter of convenience for different political parties to allege mala fides. This unfortunate situation could have been and can be avoided by acting on the recommendations of the Sarkaria Commission and the Committee of the National Commission to review the working of the Constitution in the matter of appointment of Governors. This does not appear to be convenient for the parties because they want to take advantage of

p. 1155

the situation at a particular time and cry foul when the situation does not seem favourable to them. This is a sad reflection on the morals of the political parties who do not lose the opportunity of politicising the post of the Governor. Sooner the remedial measures are taken would be better for democracy.

271. It is not deficiency in the Constitution which is responsible for the situation. It is clearly attributable to the people who elect (sic appoint) the Governors on considerations other than merit. It is a disturbing feature, and if media reports are to be believed, Raj Bhavans are increasingly turning into extensions of party offices and the Governors are behaving like party functionaries of a particular party. This is not healthy for democracy.

272. The key actor in the Centre-State relations is the Governor who is a bridge between the Union and the State. The founding fathers deliberately avoided election to the office of the Governor, as is in vogue in the USA to insulate the office from linguistic chauvinism. The President has been empowered to appoint him as executive head of the State under Article 155 in Part VI, Chapter II. The executive power of the State is vested in him by Article 154 and exercised by him with the aid and advice of the Council of Ministers, the Chief Minister as its head. Under Article 159 the Governor shall discharge his functions in accordance with the oath to protect and defend the Constitution and the law. The office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive and giving him an umpire’s role. When a Gandhian economist member of the Constituent Assembly wrote a letter to Gandhiji of his plea for abolition of the office of the Governor, Gandhiji wrote to him for its retention; thus, the Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitutional deadlock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crisis would

p. 1156

be resolved in the State. The Governor thus should play an important role. In his dual undivided capacity as head of the State he should impartially assist the President. As a constitutional head of the State Government in times of constitutional crisis he should bring about sobriety. The link is apparent when we find that Article 356 would be put into operation normally based on the Governor’s report. He should truthfully and with high degree of constitutional responsibility, in terms of his oath, inform the President that a situation has arisen in which the constitutional machinery in the State has failed and the Government of the State cannot be carried on in accordance with the provisions of the Constitution, with necessary detailed factual foundation.” (Emphasis supplied)

291. A Constitution Bench of this Court in B.P. Singhal v. Union of India reported in (2010) 6 SCC 331 observed that the Governor is neither an employee of the Union nor the agent of the party in power. The relevant observations are extracted below: “40. It is thus evident that a Governor has a dual role. The first is that of a constitutional head of the State, bound by the advice of his Council of Ministers. The second is to function as a vital link between the Union Government and the State Government. In certain special/emergent situations, he may also act as a special representative of the Union Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly. He is not an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties. There may be occasions when he may have to be an impartial or neutral umpire where the views of the Union Government and the State Governments are in conflict. His peculiar position arises from the fact that the Indian Constitution is quasi-federal in character.” (Emphasis supplied)

p. 1157

292. The question of whether the Governor is bound to act on the aid and advice of the Council of Ministers in all circumstances fell for the consideration of this Court in Samsher Singh (supra). Speaking for the majority, A.N. Ray C.J., observed as follows: “20. Articles where the expression “acts in his discretion” is used in relation to the powers and functions of the Governor are those which speak of special responsibilities of the Governor. These articles are 371-A(1)(b), 371-A(1)(d), 371- A(2)(b) and 371-A(2)(f). There are two paragraphs in the Sixth Schedule, namely 9(2) and 18(3) where the words “in his discretion” are used in relation to certain powers of the Governor. Para 9(2) is in relation to determination of amount of royalties payable by licensees or lessees prospecting for, or extracting minerals, to the District Council. Paragraph 18(3) has been omitted with effect from January 21, 1972.

21. The provisions contained in Article 371-A(1)(b) speak of the special responsibility of the Governor of Nagaland with respect to law and order in the State of Nagaland and exercise of his individual judgment as to the action to be taken. The proviso states that the decision of the Governor in his discretion shall be final and it shall not be called in question.

22. Article 371-A(1)(d) states that the Governor shall in his discretion make rules providing for the composition of the Regional Council for the Tuensang District.

23. Article 371-A(2)(b) states that for periods mentioned there the Governor shall in his discretion arrange for an equitable allocation of certain funds, between the Tuensang District and the rest of the State.

24. Article 371-A(2)(f) states that the final decision on all matters relating to the Tuensang District shall be made by the Governor in his discretion.

xxx xxx xxx

28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers

p. 1158

and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

xxx xxx xxx

54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an administrator of an adjoining Union territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b), 371-A(1)(d) and 371- A(2)(b) and 371-A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this connection, reference may be made to Article 356 which states that the Governor can send a report to the President that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. Again Article 200 requires the Governor to reserve for consideration any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution.

55. In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on

p. 1159

such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.

56. Similarly, Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion, he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State.” (Emphasis supplied)

293. A reading of the observations reproduced above indicates that the Court identified that the Governor was required to act on his discretion when performing his functions, inter alia, under Articles 356 and 200 of the Constitution respectively. However, it is pertinent to note that under Article 200, only the reservation of bills falling under the second proviso was observed by the Court to be an exercise which must be undertaken by the Governor independent of the advice of the Council of Ministers.

294. Furthermore, this Court laid down a general rule that the Governor, in the Cabinet form of government envisaged by the Constitution, acts as a constitutional head performing all his functions and exercising all his powers on the aid and advice of the Council of Ministers, except in a limited area. This limited area of discretion, too, is provided by the Constitution under the specific provisions wherein such exercise of discretion is permissible. The Court gave certain illustrative examples where the expression “acts in his discretion” was used and observed that such provisions indicated that a special responsibility on the Governor has been entrusted upon by the Constitution.

295. It is pertinent to observe the observations made by the Court in paragraphs 54, 55 and 56 of Samsher Singh (supra) which are reproduced above. In paragraph 54, while giving illustrations of the provisions where the Governor is expressly required by the Constitution to act in his discretion, the Court made reference to