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

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Articles 356 and 200 respectively. In the context of Article 200, the Court observed that the limited area where express discretion has been conferred upon the Governor falls under the second proviso. Thereafter, in paragraph 55, the Court elaborated upon the exercise of discretion by the Governor under Article 356. In paragraph 56, the Court elaborated upon the exercise of discretion under Article 200 and observed that Article 200 “indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers”. It is important to read the observations made in paragraph 56 along with paragraph 54 of the judgment. A conjoint reading of these two paragraphs, it becomes clear, without a cavil of doubt, that the second proviso to Article 200 is an instance under the Constitution where the Governor has been conferred with the power to act in his discretion and even against the advice of the Council of Ministers. However, the logical sequitur to this is that under Article 200, there is no scope for the Governor acting in his discretion other than the second proviso.

296. Speaking for himself and P.N. Bhagwati J., the redoubtable Krishna Iyer J., in Samsher Singh (supra) observed as follows: “100. The first broad proposition of the appellants is that the President —and the Governor — are not just constitutional cousins of the British Queen, but real wielders of power, bestowed on them expressly by the terms of the text, almost next of kin to their American counterparts with similar designations. The issue is so fundamental that its resolution is necessary to know not only who can declare a probationer’s fitness but who can declare a war in national defence or proclaim a breakdown of the State constitutional machinery or assent to a Bill passed by Parliament. For, if under Article 311 the President must be personally satisfied for certain small steps he must surely be individually convinced regarding the far more momentous spectrum of functions he is called upon to discharge under a big bunch of other provisions. And this reasoning regarding disposal of gubernatorial business or discharge of official responsibilities will equally apply to Governors.

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113. If the ‘inner voice’ of the founding fathers may be any guide, it is proved beyond reasonable doubt that the President and, a fortiori, the Governor enjoys nothing more and nothing less than the status of a constitutional head in a Cabinet-type Government — a few exceptions and marginal reservations apart.

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139. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Article 74 has no discretionary powers; the latter too has none, save in the tiny strips covered by Articles 163(2), 371-A(1)(b) and (d), 371-A(2)(b) and (f), VI Schedule, para 9(2) [and VI Schedule, para 18(3), until omitted recently with effect from January 21, 1972]. These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to Ministerial advice. The practice of sending periodical reports to the Union Government is a pre-constitutional one and it is doubtful if a Governor could or should report behind the back of his Ministers. For a Centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the Cabinet or to interfere in the administration directly — these are unconstitutional faux pas and run counter to Parliamentary system. In all his constitutional ‘functions’ it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untramelled by the State Ministers’ acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions.

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154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well- known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith’s statement [ Constitutional and Administrative Law — by S.A. De Smith — Peguin Books on Foundations of Law] regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course — a highly improbable contingency — or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the

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measure once it had been assented to, prudence would suggest the giving of assent.” (Emphasis supplied)

297. Interestingly, as can be seen from the paragraphs reproduced above, while describing the limited nature of the scope of exercise of discretion by the President and the Governor, Krishna Iyer, J., referred to an excerpt on how refusal of royal assent to a bill passed by the Parliament could only be done on the advice of the Ministers and not on the personal discretion of the monarch, regardless of how controversial the monarch found the bill to be. He further observed that the discretionary powers of the Governor existed only where they were expressly spelt out in the Constitution, and even the exercise of such discretion was remote-controlled by the Union Ministry.

298. Referring to the decision in Samsher Singh (supra), Krishna Iyer J., in Maru Ram v. Union of India reported in (1981) 1 SCC 107, again, reiterated the position of the President and the Governor as figureheads in the constitutional scheme. However, he observed that they acted in accordance with the aid and advice of the Council of Ministers “save in a narrow area of power” and that the “Governor vis-à-vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161”, thereby implying that there is a small area of discretion available with the Governor, which however does not include Article 161. The relevant observations are reproduced hereinbelow: “61. [...] It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor-General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this Court having authoritatively laid down the law in Shamsher Singh case [Shamsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814]. So, we agree, even without reference to Article 367(1) and Sections 3(8)

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(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis-à-vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.” (Emphasis supplied)

299. A Constitution Bench of this Court while dealing with the issue of discretionary powers of the Governor in M.P. Special Police (supra) and explaining the import of Article 163(2) of the Constitution, observed that even if discretion was not expressly granted upon the Governor by a specific provision of the Constitution, it was open to him to act in his discretion in certain exceptional situations where by reason of threat to democratic principles, he could not act on the advice of the Council of Ministers. The relevant observations are reproduced hereinbelow: “8. The question for consideration is whether a Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of Ministers for offences under the Prevention of Corruption Act and/or under the Penal Code, 1860.

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11. Mr Sorabjee submits that even though normally the Governor acts on the aid and advice of the Council of Ministers, but there can be cases where the Governor is, by or under the Constitution, required to exercise his function or any of them in his discretion. The Constitution of India expressly provides for contingencies/cases where the Governor is to act in his discretion. Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2) and 18(3) of the Sixth Schedule are some of the provisions.

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However, merely because the Constitution of India expressly provides, in some cases, for the Governor to act in his discretion, can it be inferred that the Governor can so act only where the Constitution expressly so provides? If that were so then sub-clause (2) of Article 163 would be redundant. A question whether a matter is or is not a matter in which the Governor is required to act in his discretion can only arise in cases where the Constitution has not expressly provided that the Governor can act in his discretion. Such a question cannot arise in respect of a matter where the Constitution expressly provides that the Governor is to act in his discretion. Article 163(2), therefore, postulates that there can be matters where the Governor can act in his discretion even though the Constitution has not expressly so provided.

12. […] Thus, as rightly pointed out by Mr Sorabjee, a seven-Judge Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognised that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognised that there may be situations where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.

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19. Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety

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the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.

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32. If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where a prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.” (Emphasis supplied)

300. The decision in this case was a step forward from the general rule laid down by the larger Bench in Samsher Singh (supra). However, what is essential to note is that the Court did not dilute the general rule laid down earlier, and only allowed for a very limited scope of discretion for the Governor in certain exceptional situations in light of Article 163(2). The extraordinary nature of the exceptional situations envisaged by the Court can be gauged from the use of the expressions “peril to democracy or democratic principles”, “bias is inherent and/or manifest in the advice of the Council of Ministers”, “Council of Ministers disables itself or disentitles itself” and “there would be a complete breakdown of the rule of law”. Whenever the situation arises for the Governor to exercise discretion in discharge of a function which is ordinarily to be exercised upon the aid and advice of the Council of Ministers, it is these exceptional circumstances that the Governor must take into account before rejecting the aid and advice tendered to him. Courts too, when judicially reviewing the exercise of discretion by the Governor in such cases, must be guided by the situations as described in the decision in M.P. Special Police (supra). Article 200, being a provision where the Governor must act on ministerial advice as a general rule, the aforesaid exposition would squarely apply to

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this provision as well, thereby severely curtailing any possibility of exercise of discretion by the Governor.

301. Another Constitution Bench of this Court in Nabam Rebia (supra) had the occasion to discuss at length the nature of the position of the Governor in the constitutional scheme, along with the source and scope of his discretionary powers. The Court held that the discretionary powers of the Governor could be traced back to Article 163(1), that is, he could act in exercise of his discretionary powers only where expressly provided for under the Constitution, or where the interpretation of a constitutional provision could not be construed otherwise, or in cases where this Court has declared the exercise of powers to be done by the Governor in his discretion notwithstanding ministerial advice. Further, the Court held that the finality expressed under Article 163(2) was only in respect of those situations where the exercise of discretion by the Governor was permissible under the framework of Article 163(1) and any exercise of discretion beyond the jurisdiction provided by the Constitution would be subject to judicial review. The relevant observations are reproduced hereinbelow: “147.1 [...] Article 163 further warrants that the Governor would exercise his functions, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The above edict is not applicable, in situations where the Governor is expressly required to exercise his functions, “[...] by or under this Constitution…”, “… in his discretion”. The question that will need determination at our hands is, whether the underlying cardinal principle, with reference to the discretionary power of the Governor, is to be traced from Article 163(1) or from Article 163(2). [...] All in all, it is apparent, that the Governor is not assigned any significant role in the executive functioning of the State. 147.2. [...] Insofar as the legislative process is concerned, the only function vested with the Governor is expressed through Article 200 which, inter alia, provides that a Bill passed by the State Legislature, is to be presented to the Governor for his assent. And its ancillary provision, namely, Article 201 wherein a Bill passed by the State Legislature and presented to the Governor, may be reserved by the Governor for consideration by the President. [...] All in all, it

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is apparent that the Governor is not assigned any significant role even in the legislative functioning of the State.

148. The above position leaves no room for any doubt that the Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the State Executive and the State Legislature. The interpretation placed on Article 163(2), on behalf of the respondents, has just that effect, because of the following contentions advanced on behalf of the respondents. Firstly, whenever a question arises, whether in discharging a particular function, the Governor can or cannot act in his own discretion. According to the respondents, the discretion of the Governor, on the above question, is final. Secondly, since the provision itself postulates, that “… the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion …”, according to the respondents, makes the Governor’s orders based on his own discretion, immune from judicial review. Accepting the above position, will convert the Governor into an all- pervading super-constitutional authority. This position is not acceptable because an examination of the executive and legislative functions of the Governor, from the surrounding provisions of the Constitution clearly brings out that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State. The position adopted on behalf of the appellants, on the other hand, augurs well in an overall harmonious construction of the provisions of the Constitution. Even on a cursory examination of the relevant provisions of the Constitution, we are inclined to accept the contention advanced on behalf of the appellants.

149. In our considered view, a clear answer to the query raised above, can inter alia emerge from the Constituent Assembly Debates with reference to draft Article 143, which eventually came to be renumbered as Article 163 in the Constitution. It would be relevant

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to record that from the queries raised by H.V. Kamath, T.T. Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to the same by Dr B.R. Ambedkar, it clearly emerges that the general principle with reference to the scope and extent of the discretionary power of the Governor, is provided for through Article 163(1). It also becomes apparent from Article 163(1), which provides for the principle of Ministerial Responsibility. The crucial position that gets clarified from a perusal of the Constituent Assembly Debates, arises from the answer to the query, whether the Governor should have any discretionary power at all? The Debates expound, that the retention of discretionary power with the Governor was not, in any way, contrary to the power of responsible Government, nor should the same be assumed as a power akin to that vested with a Governor under the Government of India Act, 1935. And from that, emerges the answer that the retention and vesting of discretionary powers with the Governor, should not be taken in the sense of being contrary to, or having the effect of negating the powers of responsible Government. Significantly, with reference to the Governor’s discretionary powers, it was emphasised by Dr B.R. Ambedkar, that: (CAD Vol. 8, p. 501) “The Hon’ble Dr B.R. Ambedkar.— … The clause is a very limited clause; it says: ‘except insofar as he is by or under this Constitution’. Therefore, Article 163 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my Hon’ble friend ….” In our considered view, the Constituent Assembly Debates leave no room for any doubt that the Framers of the Constitution desired to embody the general and basic principle, describing the extent and scope of the

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discretionary power of the Governor, in clause (1) of Article 163, and not in clause (2) thereof, as suggested by the learned counsel for the respondents.

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154. We are, therefore, of the considered view that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise. We, therefore, hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e. where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.

155. We may, therefore, summarise our conclusions as under: 155.1. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1). 155.2. Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.

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155.3. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise. 155.4. Fourthly, in situations where this Court has declared that the Governor should exercise the particular function at his own and without any aid or advice because of the impermissibility of the other alternative, by reason of conflict of interest. 155.5. Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.” (Emphasis supplied)

302. This Court in State of Gujarat v. R.A. Mehta reported in (2013) 3 SCC 1 placing reliance on the decision in B.P. Singhal (supra) observed that the expression “required” appearing under Article 163(1) indicated that it is only in situations where there is express stipulation or necessary implication that the Governor can act in his own discretion. The term “required” also indicates an element of compelling necessity. The Court also observed that Article 200 was one such provision where the Governor is expected to act upon ministerial advice and not in his discretion. The relevant observations are reproduced hereinbelow: “35. However, the power to grant pardon or to remit sentence (Article 161), the power to make appointments including that of the Chief Minister (Article 164), the Advocate General (Article 165), the District Judges (Article 233), the Members of the Public Service Commission (Article 316) are in the category where the Governor is bound to act on the aid and advice of the Council of Ministers. Likewise, the power

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to prorogue either House of Legislature or to dissolve the Legislative Assembly (Article 174), the right to address or send messages to the Houses of the Legislature (Article 175 and Article 176), the power to assent to Bills or withhold such assent (Article 200), the power to make recommendations for demands of grants [Article 203(3)], and the duty to cause to be laid every year the annual budget (Article 202), the power to promulgate ordinances during recess of the Legislature (Article 213) also belong to this species of power. Again, the obligation to make available to the Election Commission, requisite staff for discharging functions conferred upon it by Article 324(1) and Article 324(6), the power to nominate a member of the Anglo-Indian community to the Assembly in certain situations (Article 333), the power to authorise the use of Hindi in proceedings in the High Court [Article 348(2)], are illustrative of the functions of the Governor, qua the Governor.

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49. The exceptions carved out in the main clause of Article 163(1), permit the legislature to entrust certain functions to the Governor to be performed by him, either in his discretion, or in consultation with other authorities, independent of the Council of Ministers. The meaning of the words “by or under” is well settled. The expression “by an Act”, would mean by virtue of a provision directly enacted in the statute in question and that which is conceivable from its express language or by necessary implication therefrom. The words “under the Act”, would in such context, signify that which may not directly be found in the statute itself, but which is conferred by virtue of powers enabling such action(s) e.g. by way of laws framed by a subordinate law-making authority competent to do so under the parent Act. (Vide Indramani Pyarelal Gupta v. W.R. Natu [AIR 1963 SC 274].)

50. This Court in Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] held : (SCC p. 82, para 57) “57. The expression ‘required’ found in Article 163(1) is stated to signify that the Governor

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can exercise his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that the expression ‘by or under the Constitution’ means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made ‘under’ the Constitution.”” (Emphasis supplied)

d. The decision of this Court in B.K. Pavitra (supra) is per incuriam

303. Placing reliance on the aforesaid decision in Nabam Rebia (supra), this Court in B.K. Pavitra (supra) while dealing with the reservation of bills for the consideration of the President under Article 200 observed thus: “66. Where a Bill is not a Money Bill, the Governor may return the Bill for reconsideration upon which the House or Houses, as the case may be, will reconsider the desirability of introducing the amendments which the Governor has recommended. If the Bill is passed again by the House (or Houses as the case may be), the Governor cannot thereafter withhold assent. The second proviso to Article 200 stipulates that the Governor must not assent to a Bill but necessarily reserve it for the consideration of the President if the Bill upon being enacted would derogate from the powers of the High Court in a manner that endangers its position under the Constitution. Save and except for Bills falling within the description contained in the second proviso (where the Governor must reserve the Bill for consideration of the President), a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200. Aside from Bills which are covered by the second proviso, where the Governor is obliged to reserve the Bill for the consideration of the President, the substantive part of Article 200 does

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not indicate specifically, the circumstances in which the Governor may reserve a Bill for the consideration of the President. The Constitution has entrusted this discretion to the Governor. The nature and scope of the discretionary power of the Governor to act independent of, or, contrary to aid and advice of Council of Ministers under Article 163 was discussed in Nabam Rebia [Nabam Rebia and Bamang Felix v. Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1] , J.S. Khehar, J. (as the learned Chief Justice then was) held thus : (SCC p. 159, para 154) “154. We are, therefore, of the considered view that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise.” Dipak Misra, J. (as the learned Judge then was), observed thus : (SCC p. 244, para 375) “375. [...] The Governor is expected to function in accordance with the provisions of the Constitution (and the history behind the enactment of its provisions), the law and the rules regulating his functions. It is easy to forget that the Governor is a constitutional or formal head—nevertheless like everybody else, he has to play the game in accordance with the rules of the game—whether it is in relation to the Executive (aid and advice of the Council of Ministers) or the Legislature (Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly). This is not to say that the Governor has no powers—he does, but these too are delineated by the Constitution either specifically or by necessary implication.”

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67. The Framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns in regard to the validity of the legislation. The entrustment of a constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship. In a federal structure, the conferment of this constitutional discretion is not intended to thwart democratic federalism. The State Legislatures represent the popular will of those who elect their representatives. They are the collective embodiments of that will. The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the Governor about the constitutional legitimacy of the Bill which has been passed.

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71. These decisions are specifically in the context of Article

254. Article 254(1) postulates inter alia, that in a matter which is governed by the Concurrent List, a law which has been enacted by the Legislature of a State shall be void to the extent of its repugnancy with a law enacted by Parliament. Clause (2) of Article 254 obviates that consequence where the law has been reserved for the consideration of the President and has received assent. Article 254(1) is made subject to clause (2), thereby emphasising that the assent of the President will cure a repugnancy of the State law with a law enacted by Parliament in a matter falling in the Concurrent List. It is in this context, that the decisions of this Court hold that

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the assent of the President should be sought in relation to a repugnancy with a specific provision contained in a Parliamentary legislation so as to enable due consideration by the President of the ground on which assent has been sought. Article 200 contains the source of the constitutional power which is conferred upon the Governor to reserve a Bill for the consideration of the President. Article 254(2) is an illustration of the constitutional authority of the Governor to reserve a law enacted by the State Legislature for consideration of the President in a specified situation — where it is repugnant to an existing law or to a Parliamentary legislation on a matter falling in the Concurrent List. The eventuality which is specified in Article 254(2) does not exhaust the ambit of the power entrusted to the Governor under Article 200 to reserve a Bill for the consideration of the President. Apart from a repugnancy in matters falling in the Concurrent List between State and Parliamentary legislation, a Governor may have sound constitutional reasons to reserve a Bill for the consideration of the President. Article 200, in its second proviso mandates that a Bill which derogates from the powers of the High Court must be reserved for the consideration of the President. Apart from Bills which fall within the description set out in the second proviso, the Governor may legitimately refer a Bill for consideration of the President upon entertaining a legitimate doubt about the validity of the law. By its very nature, it would not be possible for this Court to reflect upon the situations in which the power under Article 200 can be exercised. This was noticed in the judgment of this Court in Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] . Excluding it from judicial scrutiny, the Court held : (SCC pp. 100-101, para 86) ‘86. [...] There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case,

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it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny by the courts. In the instant case, the Finance Bill which ultimately became the Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt that it was necessary to reserve it for the assent of the President. We have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent.’” (Emphasis supplied)

304. This Court in B.K. Pavitra (supra) took the view that the Constitution has entrusted the Governor with the discretion of reserving a bill, presented to him for assent, for the consideration of the President. It also held that the exercise of the power of reservation of bills for the consideration of the President could be done by the Governor contrary to the aid and advice tendered by the Council of Ministers. The Court observed that such an important responsibility having been conferred upon a constitutional functionary, its discharge was expected to be undertaken upon careful reflection and with statesmanship, and in a manner that does not thwart democratic federalism. On the nature of bills which may be reserved for the consideration of the President, the Court held that it was impossible to lay down with certainty all the situations wherein such a reference may be warranted.

305. We find ourselves in disagreement with the view taken in B.K. Pavitra (supra) that the Constitution confers a discretion upon the

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Governor insofar as the reservation of bills for the consideration of the President is concerned. We say so because the removal of the expression “in his discretion” from Section 75 of the GoI Act, 1935 when it was being adapted as Article 200 of the Constitution, clearly indicates that any discretion which was available to the Governor under the GoI Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution. The views expressed by the members of the Constituent Assembly, which are recorded in the debates that took place on Article 175 of the Draft Constitution, also indicate the same29. We are also of the view that the same is also in alignment with the fundamental tenets of responsible government in a parliamentary democracy. The only exception to the general principle of the Governor adhering to the aid and advice tendered by the Council of Ministers can be traced to Article 163(1) and the second proviso to Article 200.

306. Pertinently, the Court in B.K. Pavitra (supra) failed to take into consideration the larger Bench decisions in Samsher Singh (supra) and M.P. Special Police (supra). As we have discussed above, paragraphs 54 to 56 of the decision in Samsher Singh (supra) make it clear beyond any doubt that there is no express requirement under the Constitution for the exercise of discretion by the Governor in discharge of his functions under Article 200, except to the limited extent of the second proviso where the expression “in his opinion” is employed for the Governor. This is also apparent from the conscious decision of the Constituent Assembly in removing the expression “in his discretion” while enacting Article 200. Thus, the only express stipulation where the Governor may exercise discretion for reservation of bills is in the second proviso to Article

200. Even when looked at from the perspective of necessary implication, the discretion of the Governor in reserving the bills for the consideration of the President can be said to be present only in those cases where the Constitution has envisaged a mandatory approval of the Government, before the law can become enforceable in the State. The Sarkaria Commission mentioned three categories where reservation of a bill for the consideration of the President is envisaged:

29 9, Constituent Assemb. Deb. (Aug 1, 1949) 59-62; 10, Constituent Assemb. Deb. (Oct. 17, 1949) 392-394.

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a. First, where the bill pertains to the second proviso of Article 200, Article 288(2) or Article 360(4)(a)(ii) of the Constitution, reservation for the President is a mandatory condition as the bill will not become effective without his assent; b. Secondly, where the bill pertains to Articles 31A(1) or 31C, presidential assent is compulsory for securing immunity from the operation of Articles 14 and 19. Similarly, where the law is repugnant to a Union legislation on a Concurrent list subject- matter, presidential assent is required to make the law effective in the State. Further, laws made under Article 304(b) would not be enforceable if they were introduced without the previous sanction of the President and having been introduced and passed by the State legislature, have not received the assent of the President. This position can be derived from a reading of Article 255; c. Thirdly, there may be laws falling outside the aforesaid categories which may be reserved by the Governor for the President. However, the scope of discretion in such category of laws would be extremely limited and only when an exceptional situation of the nature described by this Court in M.P. Special Police (supra) and in Nabam Rebia (supra) as explained by us in paragraph 300 of this judgment arises that there would be scope for the Governor to reserve the bill for the consideration of the President.

307. While construing the role of the Governor in the context of Article 200, we must keep in mind that such a role has been envisaged not to supplant the opinion of the Council of Ministers, but to infuse it with his wisdom. The role of a friend, philosopher and guide which a Governor is to play under the Constitution is played by him at various stages of administrative and legislative functioning of the State. Article 167 makes it mandatory for the Chief Minister to share with the Governor, inter alia, the proposals of legislations that the government wishes to introduce in the State legislature. This means that the Governor is made well aware of any legislation that the State government is planning to enact much before it is introduced in the State legislature and sent to him for assent. Thus, the advisory role of the Governor is best played by engaging with the Council of Ministers even before the legislation is introduced in the State legislature. He

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is well within his rights, and in fact, it is his bounden duty to put to use his experience and wisdom by making constructive suggestions to the Cabinet regarding the legislative proposals. The Council of Ministers would also do good to take into consideration the advice of the Governor and deliberate upon it so that the legislation and ultimately, public interest is benefitted.

308. However, once the bill is passed by the State legislature, and presented to the Governor for assent, he must act on the aid and advice of the Council of Ministers as a general rule and only in exceptional situations which have been illustrated in paragraph 300 of this judgment, should he reserve it for the consideration of the President. A look at Rule 48 of the Tamil Nadu Government Business Rules, 1978 makes it clear that once a draft bill is approved by the Minister-in-Charge, a copy of it is supplied to the Governor. Rule 48 reads thus: “48. (1) If the tentative draft Bill is approved by the Minister in charge, it shall be circulated to the other Ministers and a copy supplied to the Governor and unless the Chief Minister directs otherwise, the tentative draft Bill shall be brought before a meeting of the Council. Proposals for any substantial or important amendments in the draft Bill after its approval shall also be dealt with similarly.”

309. After circulation of the bill to the Governor, any suggestions made by the Governor may be looked into and incorporated. Thereafter, a final copy of the bill as approved by the Law Department is also circulated to the Governor. Rule 51(b) which provides for it reads thus: “b) The originating Department shall also prepare a notice of motion to introduce a Bill and shall, after obtaining the signature of the Minister in charge, forward the notice to the Secretary to the Chamber of the Legislature to which it is proposed to introduce the Bill. The department will be in charge of the Bill in all its subsequent stages. The originating department, shall while giving notice of motion to the Assembly or Council Department submit a copy of the Bill as finalised by the Law Department to the Governor.”

310. As our discussion on the Constituent Assembly debates also reveals, the option of withholding of assent, was believed by the framers,

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would be invoked in very rare circumstances where the Council of Ministers discover some error in the legislation or desire to incorporate certain changes to it so as to meet with the popular opinion outside the House. The framers did not expect that the Governor would, as a matter of routine, declare the withholding of assent to bills casually. The deletion of the expression “in his discretion” from the first proviso is also an unmistakable indication of the intent of the framers in vesting no discretion in the Governor as regards the withholding of assent and returning of the bill along with suggestions for the introduction of amendments.

311. B.K. Pavitra (supra) made a reference to paragraph 375 of the decision in Nabam Rebia (supra) to support the idea that the Governor is entrusted with discretion in the exercise of his powers under Article 200. However, it is pertinent to note that in the said paragraph, the Court observed that “The Governor is expected to function in accordance with the provisions of the Constitution (and the history behind the enactment of its provisions)”. The history behind the enactment of Article 200 is loud and clear and speaks for itself as regards the intention of the framers of the Constitution, as we have discussed in detail.

312. What also needs to be remembered is that whenever a provision of the Constitution prescribes for the assent of the President for the purpose of enforceability or securing immunity, any State government would, in all likelihood, advice the Governor to reserve the bill for the consideration of the President. Even the Tamil Nadu Government Business Rules, 1978 prescribe the procedure for pre-consultation with the Central government whenever a subject-matter falling in the Concurrent list or certain other constitutional provision, is being legislated upon. As we have also discussed, the position settled by Kaiser-I-Hind (supra) is that the reference to the President needs to be detailed and specific so as to enable him to undertake an effective “consideration” of the reserved bill. In the practical working of a Cabinet form of government, it is the Council of Ministers who would be best equipped to make such detailed references to the President, and the Governor would act as the bridge connecting the two. It is only in rare cases, where in spite of the evident requirement for the President’s assent in order to make the bill effective as an Act (as observed in paragraph 86 of Hoecsht (supra)), the Council of Ministers has failed

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to advice the Governor to reserve the bill for the President, should the Governor decide to reserve the bill on his own motion.

313. Reference must also be made at this point to the observation made by this Court in Valluri Basavaiah Chowdhari (supra) wherein it was observed thus: “19. The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except in the case of a “Money Bill”, withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article

201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent when the Bill is reconsidered and passed by the Assembly. The second proviso to that article makes the reservation for consideration of the President obligatory where the Bill would, “if it becomes law”, derogate from the powers of the High Court. Thus, it is clear that a Bill passed by a State Assembly may become law if the Governor gives his assent to it, or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. The Governor is, therefore, one of the three components of a State legislature. The only other legislative function of the Governor is that of promulgating Ordinances under Article 213(1) when both the Houses of the State legislature or the Legislative Assembly, where the legislature is unicameral, are not in session. The Ordinance-making power of the Governor is similar to that of the President, and it is co-extensive with the legislative powers of the State legislature.” (Emphasis supplied)

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314. As discussed earlier, D.D. Basu has also taken a similar view in his commentary on the Constitution of India30. The position prevailing in a number of international jurisdictions as discussed in the preceding parts of this judgment, also lends credence to this view.

315. The deletion of the expression “in his discretion” both from the substantive part of Article 200 as well as from the first proviso to it signifies that the intention of the framers of the Constitution was to ensure that the ordinary exercise of the Governor’s function under Article 200 was to be in accordance with the aid and advice tendered to him by the Council of Ministers. The view expressed by Shri. Brajeshwar Prasad that the Governor should be conferred with some veto to negate an unsound legislation was expressly rejected by the Constituent Assembly. Further, it was explained by Mr. T.T. Krishnamachari that the first proviso was in the form of a saving clause where the Council of Ministers could ask the Governor to hold up a bill in which certain errors were discovered subsequent to its passage in the House(s), or to suitably respond to the popular sentiment expressed after such passage. Pertinently, during the course of the debates, it was observed by Dr. B. R. Ambedkar that in a responsible form of government, there can be no room for the Governor to act in his discretion.

316. The deletion of the words “in his discretion” from Section 75 of the GoI Act, 1935 before adapting it as Article 200 of the Constitution must be understood in the right context. The GoI Act, 1919 introduced an element of provincial autonomy in the administration of the country, however, the Governor remained at the center of administration having reserve as well as emergency powers. With the advent of the GoI Act, 1935, the dyarchy at the provincial level was abolished, but the Governor, as the agent of the British Crown, continued to have the discretion to veto any legislation passed by the provincial legislature. The Governor could also in his discretion reserve any bill for the consideration of the Governor-General. This power of the Governor was to be essentially exercised in accordance with the directions of the Governor-General. However, with the dawn of independence, and the framing of the Constitution, the model of governance which was adopted allowed the States to be supreme in

30 5, Durga Das Basu, Commentary on the Constitution of India 6318 (LexisNexis 2009).

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their respective fields, with certain powers having been reserved for the Union to ensure the integrity of the nation and uniformity of policy in certain key areas. The Governor was no more required to have an all-pervasive control over the State and their responsibility towards the Union was to the extent of ensuring that the administration in the State was being done in conformity with the principles enshrined in the Constitution. It is in this context that the power of the Governor to submit a report to the President under Article 356 and also the power under Article 200 to reserve a bill for the consideration of the President, is to be understood.

317. The Governor under the constitutional scheme is no longer envisaged as the Governor under the GoI Act, 1935, having the ultimate power to veto any legislation and subvert the collective will of the people being expressed through the legislature. If the power to withhold assent to bills or to reserve them for the consideration of the President is construed as falling within the exclusive discretionary domain of the Governor, who would be free to decide a course of action notwithstanding the aid and advice of the Council of Ministers, it would have the potential of turning him into a super-constitutional figure, having the power to bring to a complete halt, the operation of the legislative machinery in the State. The Governor cannot be vested with such a power, the exercise of which would enable him to collude with the Union Cabinet and ensure the death of any and all legislation initiated by the State merely by reserving it for the consideration of the President, who under Article 201 is not bound to give assent to any legislation reserved for his consideration.

318. Thus, we are of the view that the Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows: a. Where the bill is of a description as provided under the second proviso to Article 200; b. Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision;

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c. Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril as described in M.P. Special Police (supra).

319. Exception (a) as mentioned above is one which is expressly provided by the Constitution to fall within the ambit of discretionary powers of the Governor. Exception (b) flows from a reading of those provisions which require the mandatory assent of the President to a bill passed by the State legislature and thus are to be construed in light of the observations made in Nabam Rebia (supra) as instances “where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise.” Exception (c) has to be construed and understood in the context of the observations made by this Court in M.P. Special Police (supra) as covering such “situations where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice.”

v. Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 of the Constitution could be said to be subject to judicial review? If yes, what are the parameters for such judicial review? “Be your ever so high, the law is above you” ~ Thomas Fuller

320. We have extensively discussed in the preceding section that the Governor under the scheme of Article 200 would, as a general rule, be expected to act on the aid and advice of the Council of Ministers as provided for under Article 163(1). The deletion of the expression “in his discretion” by the framers of the Constitution during the course of adapting Section 75 of the GoI Act, 1935 into Article 200, is a clear indication of their intent to make the ordinary exercise of powers of the Governor under Article 200 subject to the aid and advice of the Council of Ministers. However, the aforesaid ordinary exercise of power by the Governor is subject to certain exceptions where the Governor may act in his own discretion, contrary to the advice of the Council of Ministers. There are two broad circumstances under which it would be permissible for the Governor to act in his own discretion under Article 200:

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a. Where the Governor is by or under the Constitution required to act in his discretion. The only situation in which such exercise of discretion has been explicitly laid down in the Constitution is the second proviso to Article 200, that is, where, in the opinion of the Governor, the bill, if assented to, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill by the Constitution; b. Where the Governor is by necessary implication required to act in his own discretion. This would include: (i) Where a bill attracts such a provision of the Constitution which requires the mandatory assent of the President for securing immunity or making the law enforceable. Exercise of discretion is permissible in these cases. For instance, Article(s) 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. (ii) Situations where the exceptional conditions as described in M.P. Special Police (supra) and Nabam Rebia (supra) are applicable i.e., the State Council of Ministers has disabled or disentitled itself; possibility of complete breakdown of the rule of law or by reason of peril to democracy/ democratic principles respectively, as a consequence of which an action may be compelled which, by its nature is not amenable to ministerial advice.

321. The question which naturally follows is whether the exercise of discretion by the Governor, in the exceptional situations as discussed aforesaid, would be amenable to judicial review. The importance of this question lies in the high constitutional importance of the role which the Governor plays under Article 200. The Governor, by choosing to act in his discretion under Article 200, has the power to thwart the entire legislative machinery of the State by reserving a bill for the consideration of the President. He also has the power to significantly delay the grant of assent to a bill by withholding assent and returning the same to the State legislature under the first proviso to Article 200 of the Constitution.

322. It was contended by the petitioner that no exercise of power under the Constitution could be said to be beyond the scope of judicial review as every authority, howsoever high, is expected to perform its functions within the constitutional framework. It was submitted that if

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the exercise of powers by the Governor under Article 200 is held to be outside the scope of judicial review, then that would render him to be a super-constitutional figure in the State, who would be able to override the legislature and the government elected by the people, at his whims and fancies and without any checks and balance.

323. Refuting the contention of the petitioner, the Attorney General for India placed reliance on the decisions of this Court in Hoechst (supra), Kaiser-I-Hind (supra), and B.K. Pavitra (supra) to argue that the grant of assent under Articles 200 and 201 respectively has been previously held to be non-justiciable by this Court.

324. Essentially, the questions that fall for our consideration are as follows: (i) First, whether the discharge of functions by the Governor under Article 200 of the Constitution, in his discretion could be said to be immune from judicial review? (ii) Secondly, whether the withholding of assent by the President under Article 201 of the Constitution, could also be said to be beyond the scope of judicial scrutiny? (iii) Thirdly, if the aforesaid discharge of functions is subject to judicial review, whether such discharge of functions could be said to be non-justiciable in light of the decisions of this Court in Hoechst (supra), Kaiser-I-Hind (supra), and B.K. Pavitra (supra)?

325. Samsher Singh (supra) in paragraph 54 observed that “The discretion conferred upon the Governor means that as the constitutional or formal head of the State the power is vested in him”. We have also discussed in detail, in the preceding sections, that the source of all discretion for the Governor is to be found within Article 163(1) of the Constitution alone. Thus, what falls for us to decide is whether the exercise of this constitutional power by the Governor could be said to be amenable to judicial review where such exercise is assailed on the ground that it transgresses the boundaries set by the Constitution. This Court has had the occasion of discussing the concept of judicial review in a catena of cases. We are of the view that for a better exposition and enlightenment on this issue, it would be prudent and beneficial to make a reference to all these decisions.

326. In Maru Ram (supra) this Court speaking eruditely through the inimitable Krishna Iyer, J., observed that all public power including

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constitutional powers of pardon, commutation and release under Articles 72 and 161 of the Constitution respectively, cannot run riot or be exercisable irrationally or arbitrarily. Any action under these provisions must be informed by the finer canons of constitutionalism. In his words, “the rule of law, under our constitutional order, transforms all public power into responsible, responsive, regulated exercise informed by high purposes and geared to people’s welfare”. It held that all the powers entrusted by the Constitution must, in its exercise, eschew any form of arbitrariness and stem from an intelligible and well-reasoned criterion that is predicated on an earnest purpose. It further categorically held that – “while constitutional power is beyond challenge, its actual exercise may still be vulnerable” – to judicial review. In the last, Krishna Iyer, J., further cautioned that such power ought not to be vulgarized or abused by personal vanity and the notions of those exercising such powers. The relevant observations read as under: “62. An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order.

63. The jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned Solicitor-General and, if we may say so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism. [...] It is the pride of our constitutional order that all power, whatever

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its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.

xxx xxx xxx

65. Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. While constitutional power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricious criteria will void the exercise. For example, if the Chief Minister of a State releases everyone in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive. [...] Push this logic a little further and the absurdity will be obvious. No constitutional power can be vulgarised by personal vanity of men in authority. Likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that he has completely reformed himself, the power of remission under Articles 72/161 may ordinarily be exercised and a refusal may be wrong-headed. If, on the other hand, a brutal murderer, bloodthirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. [...]” (Emphasis supplied)

327. This Court, speaking through nine-Judges in Indra Sawhney v. Union of India reported in (1992) Supp (3) SCC 217 held that the yardstick

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of subjecting an act or a decision to judicial review is not whether it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or the rights under Part III of the Constitution. The Court further held that the doctrine of political thicket does not apply in the Indian constitutional framework. It is not that the courts avoid entering into a political question because of the doctrine of separation of power, but because of desirability of avoiding entering into a political question. The relevant observations are reproduced hereinbelow: “557 [...] The political questions doctrine, however, does not mean, that anything that is tinged with politics or even that any matter that might properly fall within the domain of the President or the Congress shall not be reviewable, for that would end the whole constitutional function of the court” [ Samuel Krislov : The Supreme Court in the Political Process, p. 96]. Under our Constitution, the yardstick is not if it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or has potential of constitutional repercussions as enforcement of an assured right, under Chapter III of the Constitution, by approaching courts is itself a fundamental right. The “constitutional fiction” of political question, therefore, should not be permitted to stand in way of the court to, “deny the Nation the guidance on basic democratic problems” [ C. Herman Pritchett : The American Constitution, p. 154 (quoted in The Judicial Review of Legislative Acts by Dr Chakradhar Jha, p. 355)] . Avoidance of entering into a political question may be desirable and may not be resorted to, “not because of doctrine of separation of power or lack of rules but because of expediency” [ Charles Gordon Post, pp. 129-130 : The Supreme Court Questions (quoted in ‘The Judicial Review of Legislative Acts’ by Dr Chakradhar Jha, p. 351)] in larger interest for public good but legislatures, too, have, “their authority measured by the Constitution”. Therefore absence of norms to examine political question has rarely any place in the Indian constitutional jurisprudence [...]” (Emphasis supplied)

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328. Further, this Court in B.P. Singhal (supra) upon examining a catena of decisions on the scope and evolution of the power of judicial review of the courts observed that, although under the English Law, the prerogative powers of the monarch such as the power to make treaties, grant mercy or to dissolve the parliament etc. are traditionally not subject to judicial review due to the very nature of such powers falling outside the expertise and competence of the courts, yet such preclusion of the power of judicial review is by no means a blanket rule. It observed that even prerogative powers, insofar as the questions of legality, rationality or procedural propriety are concerned, would always be amenable to judicial review, because the safeguarding of such considerations in the exercise of any prerogative powers is the domain, responsibility and duty of the courts as the sentinel on the qui vive. Placing reliance on the decision of this Court in State of Rajasthan v. Union of India reported in (1977) 3 SCC 592 it held that the courts, as the protector and ultimate interpreter of the Constitution, not only have the power but an obligation to determine the power conferred on each branch of the government, the extent and limits of such powers and whether the exercise of such power exceeds those limits or not, irrespective of whether such powers are the exclusive prerogative of any one branch of the government or such questions are inherently political in complexion. The relevant observations read as under: “72. The traditional English view was that prerogative powers of the Crown conferred unfettered discretion which could not be questioned in courts. Lord Ruskill attempted to enumerate such prerogative powers in Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] : (AC p. 418) “[...] Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject-matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded

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or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.” However, the contemporary English view is that in principle even such “political questions” and exercise of prerogative power will be subject to judicial review on principles of legality, rationality or procedural impropriety. [See decision of House of Lords in: R. (Bancoult) v. Secy. of State for Foreign & Commonwealth Affairs (No. 2) [(2009) 1 AC 453 (HL)] .] In fact, De Smith’s Judicial Review (6th Edn. 2007, p. 15) states: “Judicial review has developed to the point where it is possible to say that no power— whether statutory or under the prerogative—is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review.”

73. In State of Rajasthan v. Union of India [(1977) 3 SCC 592] , this Court (Bhagwati, J. as he then was) held: (SCC pp. 660-62, para 149) “149. … But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. … the Court cannot fold its hands in despair and declare ‘Judicial hands off’. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. … This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch

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of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. … Where there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. … The Court cannot and should not shirk this responsibility, [...]” In the said decision, Chandrachud, J. (as he then was) observed thus: (SCC p. 645, para 132) “132. [...] They may not choose to disclose them but if they do, as they have done now, they cannot prevent a judicial scrutiny thereof for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed. I am inclined to the opinion that the Government cannot claim the credit at the people’s bar for fairness in disclosing the reasons for the proposed action and at the same time deny to this Court the limited power of finding whether the reasons bear the necessary nexus or are wholly extraneous to the proposed action. The argument that ‘if the Minister need not give reasons, what does it matter if he gives bad ones’ overlooks that bad reasons can destroy a possible nexus and may vitiate the order on the ground of mala fides.”

329. Furthermore, B.P. Singhal (supra) categorically held that unlike England, all powers that have been conferred upon the President and

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the Governor by the Constitution are not a matter of prerogative but a constitutional responsibility and its exercise, a matter of performance of an official duty of the highest sanctity, and thus, unquestionably amenable to judicial review. It observed that the sufficiency of the attending facts and circumstances necessitating the exercise of such powers is to be decided by the President or the Governor. However, the question of whether such exercise is predicated upon all relevant cogent materials and falls within the limitations of the constitutional scheme and is not a result of an arbitrary or malafide exercise, would be subject to the judicial review of the courts. Placing reliance on Maru Ram (supra) it held that the exercise of such powers by the President only carries with it a notional presumption of a careful and proper exercise based on objective considerations, but, by no stretch of imagination can it be construed to confer an immunity from judicial review. It further explained, in the context of Article 72 of the Constitution, the standard of judicial review that the courts are expected to apply when scrutinizing the exercise of such power by the President. It held that where reasons have been given for the exercise of such power, there the courts may interfere only if the reasons are based on irrelevant or extraneous considerations. However, where no reasons have been given, there the courts may interfere only if the exercise is vitiated by a flawed understanding of the ambit of such power by misjudgment or is otherwise arbitrary, discriminatory or malafide. The relevant observations read as under: - “76. This Court has examined in several cases, the scope of judicial review with reference to another prerogative power—power of the President/Governor to grant pardon, etc. and to suspend, remit or commute sentences. The view of this Court is that the power to pardon is a part of the constitutional scheme, and not an act of grace as in England. It is a constitutional responsibility to be exercised in accordance with the discretion contemplated by the context. It is not a matter of privilege but a matter of performance of official duty. All public power including constitutional power, shall never be exercisable arbitrarily or mala fide. While the President or the Governor may be the sole judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must

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be found in the Constitution itself. The Courts exercise a limited power of judicial review to ensure that the President considers all relevant materials before coming to his decision. As the exercise of such power is of the widest amplitude, whenever such power is exercised, it is presumed that the President acted properly and carefully after an objective consideration of all aspects of the matter. Where reasons are given, the Court may interfere if the reasons are found to be irrelevant. However, when reasons are not given, the Court may interfere only where the exercise of power is vitiated by self-denial on wrong appreciation of the full amplitude of the power under Article 72 or where the decision is arbitrary, discriminatory or mala fide (vide Maru Ram v. Union of India [(1981) 1 SCC 107 : 1981 SCC (Cri) 112] , Kehar Singh v. Union of India [(1989) 1 SCC 204 : 1989 SCC (Cri) 86] , etc.).” (Emphasis supplied)

330. In Keisham (supra), this Court had held that a Speaker acting under the Tenth Schedule of the Constitution would be duty bound to decide the disqualification petitions made before him within a reasonable time and that any failure in exercising this jurisdiction conferred upon him or reluctancy in acting in a time-bound manner would be a fit ground for the courts to engage in an exercise of judicial review of his actions, irrespective of the fact that it is the Speaker who has the prerogative to adjudicate such petitions. It held that even where the jurisdiction of the courts to embark upon an examination on the merits of such prerogative powers has been ousted, the same does not curtail or inhibit the power of judicial review over the manner of exercise or non-exercise of such prerogative powers.

331. Similarly, in A.G. Perarivalan (supra), this Court reiterated that any inexplicable or inexcusable non-exercise of a prerogative or sovereign power would be amenable to judicial review and that the manner of exercise of such powers by the Governor could not be said to be impervious to judicial scrutiny.

332. From the above exposition of law, it becomes clear as a noon day, that no exercise of power under the Constitution is beyond the pale of judicial review. Thus, we find no reason to exclude the discharge

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of functions by the Governor or the President under Articles 200 and 201 of the Constitution respectively.

333. It could be argued that the decision taken by the Governor under Article 200 would be shielded from the scrutiny of the courts by virtue of the immunity accorded under Article 361 of the Constitution. However, in this regard, we may only refer to the observations made by this Court in Rameshwar Prasad (supra) which leaves no doubt that the immunity enshrined in Article 361 of the Constitution does not preclude or prohibit the courts in any manner from looking into the actions of the Governor which by necessary implication would include his actions under Article 200 as well. The relevant observations are as follows: “173. A plain reading of the aforesaid article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any court for the exercise and performance of their powers and duties. Most of the actions are taken on the aid and advice of the Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala fides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal mala fides are made [...]” (Emphasis supplied)

334. The High Court of Madras in S. Ramakrishnan v. State of Tamil Nadu reported in 2020 SCC OnLine Mad 5207 was in seisin of a similar issue involving a bill passed by the State Legislative Assembly which remained pending for two months before the Governor for grant of assent. When the High Court posed a question as regards the

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inaction on the part of the Governor, the Advocate General referred to Article 361 of the Constitution. The Court interpreted Article 361 in light of Article 200 and observed that the protection granted to the Governor under the Constitution was to perform his constitutional duties expeditiously. It also underscored the obligation of the courts to perform their constitutional duties and subjecting unconstitutional actions to judicial scrutiny in public interest. The relevant observations are as follows: “6. A perusal of Article 200 - Assent to Bills, would reveal that the Constitutional Authority has to take a decision, if a Bill is presented for Assent, as soon as possible. The protection has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly and there would not be any situation, wherein they would be called for to give explanation or they will be questioned by the Court of law.

7. When situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the Public. It is well settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, this Court has to do its constitutional duties and to address the situation. However, this Court is of the opinion that such a situation would not arise to pass any order in this matter.” (Emphasis supplied)

335. Thus, what is discernible from above is that the discharge of functions by the President or the Governor as constitutional and formal heads is undoubtedly subject to judicial review by virtue of it being an exercise of their constitutional powers. However, could it at the same time be said that nevertheless it would be improper for the courts to examine such actions of the President or the Governor as the actions are essentially political in nature and hence non-justiciable for the reason that no judicial standard can be evolved for the scrutiny of such actions. In this regard, we may make reference to certain decisions rendered by this Court as well as few landmark decisions of other international jurisdictions.

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336. In Minerva Mills v. Union of India reported in (1980) 3 SCC 625, this Court held that the jurisdiction of courts is not ousted merely because a question has a political colour. Every constitutional question, irrespective of the political complexion or make thereof, falls within the jurisdiction of the courts. The Court held that whether the legislature or the executive has acted within the limits of its authority or not, is for the courts to decide. The relevant observations are as follows: “98. It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issues: vide Gomellion v. Lightfoot [364 US 339 (1960) : 5 L Ed 2d 110] and Baker v. Carr [369 US 186 (1962) : 7 L Ed 2d 663]. The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it. This is also the view taken by Gupta, J., and myself in State of Rajasthan v. Union of India [(1977) 3 SCC 592 : AIR 1977 SC 1361]. I pointed out in my judgment in that case and I still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare “judicial hands off”. So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before, I repeat again that the Constitution is suprema lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it

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has to act within the limits of its authority and whether it has done so or not is for the court to decide. The court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the court to intervene. Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and furtherance of constitutional values. The court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court [...]” (Emphasis supplied)

337. The nine-Judge Bench decision of this Court in S.R. Bommai (supra) observed that the concept of justiciability is not synonymous with judicial review. It noted that even while exercising the power of judicial review, courts can decline to exercise such power as being non-justiciable. It categorically observed that though judicial review may be avoided on questions of political nature, yet legal questions camouflaged with a political cloak will be justiciable. The relevant observations have been reproduced hereinbelow: “201. Judicial review must be distinguished from justiciability. The two concepts are not synonymous. The power of judicial review goes to the authority of the court, though in exercising the power of judicial review, the court in an appropriate case may decline to exercise the power as being not justiciable. The Constitution is both the source of power as well as it limits the power of an authority, ex necissitate. Judiciary has to decide the source, extent, limitations of the power and legitimacy in some cases of the authority exercising the power. There are no hard and fast fixed rules as to justiciability of a controversy [...]

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258. Justiciability is not a legal concept with a fixed content, nor is it susceptible of scientific verification. Its use is the result of many pressures or variegated reasons. Justiciability may be looked at from the point of view of common sense limitation. Judicial review may be avoided

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on questions of purely political nature, though pure legal questions camouflaged by the political questions are always justiciable. The courts must have judicially manageable standards to decide a particular controversy. Justiciability on a subjective satisfaction conferred in the widest terms to the political coordinate executive branch created by the constitutional scheme itself is one of the considerations to be kept in view in exercising judicial review [...]” (Emphasis supplied)

338. This Court in A.K. Kaul v. Union of India reported in (1995) 4 SCC 73 also elucidated the distinction between judicial review and justiciability. It observed that, in a written Constitution, the bounds within which the various organs of the State are delineated, the same implicitly casts a duty upon the courts to test the validity of every action of such constitutional organ, through judicial review, to ensure that such exercise of power is within the confines of the Constitution. It thus, held that the power of judicial review of the courts would be available in respect of exercise of all powers by any authority under the Constitution unless expressly excluded. It further held that, although judicial review is the norm, yet the unavailability of judicially manageable standards in certain aspects of the power, whose exercise is in question, may render the judicial review of such exercise of power non-justiciable. It explained that justiciability refers to the question whether a particular field could be said to fall within the purview of the power of judicial review. The relevant observations are as follows: “12. It is, therefore, necessary to deal with this question in the instant case. We may, in this context, point out that a distinction has to be made between judicial review and justiciability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the

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Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power. This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable.” (Emphasis supplied)

339. This Court in Epuru Sudhakar v. Govt. of A.P. reported in (2006) 8 SCC 161, speaking in the context of Articles 72 and 161 of the Constitution respectively, observed that the determining factor in deciding whether a sovereign or prerogative power would be subject to judicial review is the subject-matter of such power and not its source. It held that the exercise of every prerogative power is subject to the rule of law and the rule of law cannot be made subservient to political expediency. The Court defined that ‘manageable standards’ refer to certain discernible standards expected in a functioning democracy. It also held that exercise of any prerogative power cannot be placed in a straitjacket formula and manageable standards would vary depending on the nature of the power. The relevant observations are as follows: “66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-

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matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of “Government according to law”. The ethos of “Government according to law” requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”

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69. In conclusion, it may be stated that, there is a clear symmetry between the constitutional rationale for review of statutory and prerogative power. In each case, the courts have to ensure that the authority is used in a manner which is consistent with the Rule of Law, which is the fundamental principle of good administration. In each case, the Rule of Law should be the overarching constitutional justification for judicial review. The exercise of prerogative power cannot be placed in straitjacket formula and the perceptions regarding the extent and amplitude of this power are bound to vary. However, when the impugned decision does not indicate any data or manageable standards, the decision amounts to derogation of an important constitutional principle of Rule of Law.” (Emphasis supplied)

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340. In Regina (Miller) v. Prime Minister (Lord Advocate and others intervening) reported in [2019] 3 WLR 589, the Supreme Court of the United Kingdom was dealing with the justiciability of the power of prorogation. It was held that, although the courts cannot decide political questions, yet, the fact that a dispute arises from a matter of political controversy would not restrain the courts completely from looking into it, in exercise of judicial review. It further noted that almost all decisions by the executive have a political hue to them, yet, the courts in the past have exercised a supervisory jurisdiction. The Court held that a threat to parliamentary sovereignty constitutes as a significant ground for justiciability of prerogative powers.

341. In the seminal decision of Baker v. Carr, reported in 1962 SCC OnLine US SC 40, the Supreme Court of the United States of America examined whether questions of legislative apportionment were essentially political questions and hence, not justiciable. The Court in this case laid down six heavily overlapping indicia of a non- justiciable matter. These were as follows: (i) a textually demonstrable constitutional commitment of the issue to another political branch; or (ii) a lack of judicially discoverable and manageable standards for resolving it, or (iii) a need to make an initial policy determination clearly for non-judicial discretion, or (iv) the impossibility of a decision by the court without expressing lack of respect due to co-ordinate branches of Government; or (v) an unusual need for unquestioning adherence to a political decision already made; or (vi) the potentiality for embarrassment from multifarious pronouncements by various departments on one question. It was emphatically held that, save the aforesaid considerations, no other issue is liable for dismissal on ground of a lack of justiciability.

342. Before proceeding further, we deem it appropriate to refer to all the aforesaid decisions of this Court where the justiciability of assent has been discussed. The first in line is the Constitution Bench decision in Kameshwar Singh (supra) where M.C. Mahajan, J., (as his lordship then was), in the context of Article 31A of the Constitution, observed that the assent of the President, once given to a bill reserved for his consideration, is non-justiciable. The relevant observations are as follows: “266. [...] The provisions of Article 31(2) therefore, do not stand repealed by Article 31-A. On the other hand, they are kept alive. The difference is that persons whose properties

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