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

fall within the definition of the expression “estate” in Article 31-A are deprived of their remedy under Article 32 of the Constitution and the President has been constituted the sole judge of deciding whether a State law acquiring estates under compulsory power has or has not complied with the provisions of Article 31(2). The validity of the law in those cases depends on the subjective opinion of the President and is not justiciable. Once the assent is given, the law is taken to have complied with the provisions of Article 31(2).” (Emphasis supplied)

343. The aforesaid observations would indicate that the grant of assent by the President to a State legislation falling under Article 31A was held to be non-justiciable only on the ground that the first proviso to Article 31A confers the power on the President to take a decision as regards whether assent is to be granted or not.

344. The next decision where the justiciability of assent was discussed is the decision of the three-Judge Bench in Hoechst (supra) wherein, inter alia, one of the grounds of challenge to the legislation under consideration was that since the subject matter of the bill fell under List II of the Seventh Schedule, there was no occasion for the Governor to have reserved the bill for the consideration of the President. It is on this ground that the subsequent grant of assent by the President was called into question. Negativing the contention, the Court observed thus: “86. There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. A Bill which attracts Article 254(2) or Article 304(b) where it is introduced or moved in the Legislative Assembly of a State without the previous sanction of the President or which attracted Article 31(3) as it was then in force, or falling under the second proviso to Article 200 has necessarily to be reserved for the consideration of the President. There may also be a Bill passed by the State Legislature where there may be a genuine doubt about

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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, 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)

345. It is important to note that the aforesaid observations were made by this Court in response to the argument that the grant of assent by the President, in a case where it was not necessary for the Governor to reserve the bill for the consideration of the President, would vitiate the assent given by the President. On the contrary, the case at hand involves a totally different factual situation wherein the State Government is aggrieved by the reservation of bills by the Governor in exercise of his discretion and not in accordance with the aid and advice of the Council of Ministers. The further grievance of the petitioner is that such reservation of bills by the Governor is not guided by constitutional principles but is impelled by lack of bonafides and political reasons. The applicability of the ratio laid down in the aforesaid decisions of Kameshwar Singh (supra) and Hoechst (supra) and also the other decisions of this Court as regards the questions of justiciability and judicial review, would have to be decided keeping in mind the peculiar facts of the case at hand which we have been called upon to deal with.

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346. The decision in Hoechst (supra) was referred to in the decision of this Court in Bharat Sevashram Sangh v. State of Gujarat reported in (1986) 4 SCC 51 wherein one of the challenges to the validity of the legislation was that the bill had received conditional assent from the President, and such partial or conditional assent not being permissible under the Constitution, was thus erroneous in law. While the Court referred to the observations made in Hoechst (supra), it also looked into the materials on record and arrived at a conclusion that there was no infirmity in the grant of assent by the President. Therefore, it cannot be said that the decision of the Court was based on the non-justiciability of assent alone as the Court arrived at the finding after the actual satisfaction on the validity of assent upon a perusal of the relevant materials. The relevant observations are reproduced below: “6. The contention relating to the alleged invalidity of the assent given by the President is formulated by the learned counsel for the petitioners/appellants thus. The Bill was passed by the legislature of the State on February 15, 1973 and it was immediately thereafter forwarded to the Governor for his assent. The Governor reserved the Bill for the consideration of the President under Article 200 of the Constitution and the subsequent events according to the learned counsel showed that the President did not either give his assent or withhold his assent as contemplated under Article 201 of the Constitution but he gave a qualified or conditional assent which was not contemplated under Article 201 of the Constitution. It is argued that since the President did not give absolute assent but only a qualified or conditional assent the Bill in question had not become a law. In reply to these averments in the petitions the Under Secretary to the Government of Gujarat, Education Department has stated in his counter-affidavit that the Bill was presented to the Governor of Gujarat after it was passed by the Assembly. The Governor of Gujarat reserved the Bill for the consideration of the President under Article 200 of the Constitution since he felt that in view of clause 33 of the Bill which provided for taking over of the management of a school for a limited period in public interest it was necessary to reserve the Bill

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for the consideration of the President. Accordingly the Bill was referred to the President. At the meeting held in the Ministry of Home Affairs, Government of India on August 3, 1973 to discuss the Bill it was suggested by the representatives of the Central Government that the provisions of the Bill which did not exclude institutions established or administered by the minorities from their scope were repugnant to Article 30 of the Constitution and therefore the Bill should be suitably amended. It was also suggested to the representatives of the State Government that it would be better to carry out the requisite amendments by promulgating an ordinance. Accordingly the draft of the ordinance which was ultimately promulgated as Ordinance 6 of 1973 was forwarded for the instructions of the President under Article 213(1) of the Constitution. Thereafter the draft of the Ordinance and the Bill were both considered by the President and he assented to the said Bill and issued instructions as required by the proviso to Article 213 of the Constitution for the promulgation of the said Ordinance on September 28, 1973. Accordingly the said Bill became law on its publication on the very same day. The Ordinance was issued on September 29, 1973. In the circumstances it cannot be said that the assent which was given by the President was conditional. The records relating to the above proceedings were also made available to the court. On going through the material placed before us we are satisfied that the President had given assent to the Act and it is not correct to say that it was a qualified assent. The Act which was duly published in the official Gazette contains the recital that the said Act had received the assent of the President on September 28, 1973. Moreover questions relating to the fact whether assent is given by the Governor or the President cannot be agitated also in this manner. [...]” (Emphasis supplied)

347. Hoechst (supra) was also referred to and relied upon by this Court in B.K. Pavitra (supra) wherein it was observed that owing to the

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sovereign nature of the power of the Governor to reserve a bill for the consideration of the President under Article 200, it would not be possible for this Court to reflect upon the situations in which such a power of reference may be exercised by the Governor. It was further observed by the Court that the decision in Hoechst (supra) has excluded the exercise of this power from the scope of judicial scrutiny. The relevant observations read as under: - “71. [...] 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] [...]

72. Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] is an authority for the proposition that the assent of the President is non-justiciable. Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] also lays down that even if, as it turns out, it was not necessary for the Governor to reserve a Bill for the consideration of the President, yet if it was reserved for and received the assent of the President, the law as enacted cannot be regarded as unconstitutional for want of “proper” assent.

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73. The above decisions essentially answer the submissions which were urged by Dr Dhavan. The law as propounded in the line of precedents adverted to above must negate the submissions which were urged on behalf of the petitioners. Once the Bill (which led to the Reservation Act, 2018) was reserved by the Governor for the consideration of the President, it was for the President to either grant or withhold assent to the Bill. The President having assented to the Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the President is non-justiciable. [...]” (Emphasis supplied)

348. We find it difficult to express our agreement with the view taken in B.K. Pavitra (supra) that the exercise of power to reserve a bill for the consideration of the President by the Governor is beyond the pale of judicial scrutiny, even in cases where it is exercised in his own discretion and against the aid and advice of the Council of Ministers. We have discussed in the previous sections of this judgment that the Governor under Article 200 is ordinarily expected to act in accordance with the aid and advice of the Council of Ministers, and it is only in certain very exceptional situations that he should resort to the exercise of discretion. Further, the limits of such discretion are to be derived from Article 163(1). The exercise of such discretion by the Governor, if excluded from judicial scrutiny, would militate against the fundamental constitutional principle that exercise of all power must be within the confines of the Constitution. Absolute exclusion of judicial scrutiny would also confer upon the Governor an absolute power to disregard the will of the people expressed through the State legislature and government. While it is true that there may be situations in which the exercise of discretion by the Governor under Article 200 would be permissible, this does not imply that this Court would be precluded from determining the legality and propriety of the exercise of such discretion in a given case. In fact, it is owing to the impossibility of the task of exhaustively charting out such situations wherein discretion would be allowed to be exercised, that it becomes all the more crucial for the power of judicial review to exist with the courts. This would keep in line any bonafide action on the part of the Governor which is disguised under the garb of legitimate exercise of discretion.

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349. The two-fold observations in B.K. Pavitra (supra) vesting the Governor with unfettered discretion to reserve bills for the consideration of the President under Article 200, and at the same time excluding such exercise of discretion from judicial scrutiny essentially has the effect of safeguarding the actions of the Governor in a lead casket which cannot be permeated even in cases of breach of the constitutional framework within which the Governor is expected to function.

350. The Constitution Bench in Kaiser-I-Hind (supra) had the occasion to consider in detail whether the assent of the President sought with regard to a State law would be limited only to the repugnancy of the laws to which the attention of the President was drawn to whilst seeking his assent or would such assent be qua all other laws enacted by the Parliament to which the State law in question may also be repugnant to. In other words, whether the assent granted by the President to a State legislation would be deemed to be an assent qua all earlier enactments made by the Parliament on the subject. This Court whilst answering the aforesaid question in the negative, held that the “consideration” by the President and his “assent” under Article 254(2) is limited to the proposal made by the State government and, the State legislation would prevail only qua the laws for which repugnancy was pointed out and the “assent” of the President was sought for. The Court, inter alia, held that the words “reserved for consideration” indicate the requirement of an active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by the Parliament and the necessity of having such a law in the State, keeping in mind the peculiar facts, the attending circumstances and the backdrop in which such law was made by the State government. Similarly, the word “consideration” indicates the requirement of careful thinking and due application of mind regarding the necessity of having a State law which is repugnant to the law(s) made by the Parliament. Lastly, the term “assent” implies an expressed agreement of mind to what is proposed by the State i.e., knowledge of the President as to the repugnancy between the State law and the earlier law(s) made by Parliament on the same subject-matter, as well as agreement to the reason and attending circumstances, regarding the necessity of having such State law.

351. As regards justiciability, it was held by the Court that the examination of the records to ascertain the extent to which assent was sought for,

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would not amount to deciding whether assent was rightly or wrongly given. Thus, it could not be said that the Court was determining the validity of the assent granted by the President. The relevant observations made by M.B., Shah J.,, speaking for the majority, are reproduced below: “25. In our view, for finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the assent is rightly, wrongly or erroneously granted. The consideration by the Court is limited to the extent that whether the State has sought assent qua particular earlier law or laws made by Parliament prevailing in the State or it has sought general assent. In such case, the Court is not required to decide the validity of the “assent” granted by the President. In the present case, the assent was given after considering the extent and nature of repugnancy between the Bombay Rent Act and the Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted by the President, the State law would prevail qua earlier other law enacted by Parliament for which no assent was sought for nor which was reserved for the consideration of the President.

xxx xxx xxx

29. We further make it clear that granting of assent under Article 254(2) is not exercise of legislative power of the President such as contemplated under Article 123 but is part of the legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court.” (Emphasis supplied)

352. Doraiswamy Raju, J., in a concurring opinion, laid strong emphasis on the requirement that a reference to the President for the purpose

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of Article 254(2) must be precise and specific as regards the extent of protection sought for the State legislation. He observed that keeping in mind the serious implications of the grant of assent of the President to a repugnant State law, the making of such reference to the President cannot be exercised in a routine manner. He further observed that the non-justiciability of the assent of the President would not preclude the constitutional courts from examining the sufficiency and justifiability of the predominance sought for the State legislation over the Central legislation. The relevant observations are reproduced below: “72. [...] The exception engrafted in clause (2) to enable the State law to prevail in that State, the legislature of which has enacted it, notwithstanding its repugnancy, as above, as long as both the laws deal with a concurrent subject, will enure to its benefit, “if it has been reserved for the consideration of the President and has received his assent”, under the said provision of the Constitution of India. Thus, the sweep of mandate and serious nature of the result flowing from the assent renders, in my view, the very exercise of power by the President and the attendant formalities whereof, as of great significance and vitally important, and not a mere routine or mechanical exercise. Despite such assent having been obtained, power of Parliament to enact, at any time, any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the legislature of the State, with the assent envisaged under clause (2) of Article 254 has also been conserved and preserved in the proviso to the said clause. In substance, Parliament has undisputed power to undo the effect or consequences flowing from the Presidential assent obtained under clause (2), by enacting a subsequent law creating once more a “repugnancy” and thereby override or repeal impliedly, to the extent of such repugnancy, the State law.

73. The assent of the President envisaged under Article 254(2) is neither an idle or empty formality, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague,

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general or indefinite — in the terms sought for to claim that once sought and obtained as well as published, a curtain or veil is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not really what should and ought to have been, to claim the protection envisaged under clause (2) in respect of a particular State law vis-à-vis or with reference to any particular or specified law on the same subject made by Parliament or an existing law, in force. The repugnancy envisaged under clause (1) or enabled under clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there is a legislation or legislative provision(s), covering and operating on the same field or identical subject-matter made by both the Union and the State, both of them being competent to enact in respect of the same subject-matter or legislative field, but the legislation by Parliament has come to occupy the entire field. Necessarily, in the quasi-federal structure adopted for the nation, predominance is given to the law made by Parliament and in such circumstances only the State law which secured the assent of the President under clause (2) of Article 254 comes to be protected, subject of course to the powers of Parliament under the proviso to the said clause. Therefore, the President has to be apprised of the reasons at least as to why his assent is being sought, the need or necessity and the justification or otherwise for claiming predominance for the State law concerned. This itself would postulate an obligation, inherent in the scheme underlying as well as the very purpose and object of seeking the assent under clause (2) of Article 254, to enumerate or specify and illustrate the particular Central law or provision with reference to which the predominance is desired. The absence of any standardized or stipulated form in which it is to be sought for, should not detract the State concerned, to disown its obligation to be precise and specific in the extent of protection sought having regard to the serious consequences which thereby inevitably follow i.e. the substitution of the Union law in force by the State law, in the territorial limits of the State concerned, with

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drastic alteration or change in the rights of citizen, which it may, thereby bring about.

74. The mere forwarding of a copy of the Bill may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with reference to which, the predominance is claimed or purported to be claimed. The deliberate use of the word “consideration” in clause (2) of Article 254, in my view, not only connotes that there should be an active application of mind, but also postulates a deliberate and careful thought process before taking a decision to accord or not to accord the assent sought for. If the object of referring the State law for consideration is to have the repugnancy resolved by securing predominance to the State law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirabilities involved therein, though may not be obliged to write a judgment in the same manner, the courts of law do, before arriving at a conclusion to grant or refuse to grant or even grant partially, if the repugnancy is with reference to more than one law in force made by Parliament. Protection cannot be claimed for the State law, when questioned before courts, taking cover under the assent, merely asserting that it was in general form, irrespective of the actual fact whether the State claimed for such protection against a specific law or the attention of the President was invited to at least an apprehended repugnancy vis-à-vis the particular Central law. In the teeth of innumerable Central laws enacted and in force on concurrent subjects enumerated in List III of the Seventh Schedule to the Constitution, and the hoard of provisions contained therein, artificial assumptions based on some supposed knowledge of all those provisions and the presumed regularity of official acts, cannot be blown out of proportion, to do away with an essential exercise, to make the “assent” meaningful, as if they are empty formalities, except at the risk of rendering Article 254

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itself a dead letter or merely otiose. The significant and serious alteration in or modification of the rights of parties, both individuals or institutions resulting from the “assent” cannot be overlooked or lightly brushed aside as of no significance, whatsoever. In a federal structure, peculiar to the one adopted by our Constitution it would become necessary for the President to be apprised of the reason as to why and for what special reason or object and purpose, predominance for the State law over the Central law is sought, deviating from the law in force made by Parliament for the entire country, including that part of the State. When this Court observed in Gram Panchayat of Village Jamalpur v. Malwinder Singh [(1985) 3 SCC 661] that when the assent of the President is sought for a specific purpose the efficacy of the assent would be limited to that purpose and cannot be extended beyond it, and that if the assent is sought and given in general terms so as to be effective for all purposes different considerations may legitimately arise, it cannot legitimately be contended that this Court had also declared that reservation of the State law can also be by mere reference to Article 254(2) alone with no further disclosures to be made or that with mere forwarding of the Bill, no other information or detail was either a permissible or legalized and approved course to be adopted or that such course was held to be sufficient, by this Court, to serve the purpose of the said article. The expression “general terms” needs to be understood, in my view, a reference to a particular law as a whole in contrast to any one particular or individual in the said law and not that, it can be even without any reference whatsoever. The further observation therein, (SCC p. 669, para 12) “not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act on the vesting of evacuee properties but, his assent was sought for a different, specific purpose altogether”, would belie any such claim. Per contra, it would only reinforce the principle that the consideration as well as

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the decision to accord consent should be a conscious one, after due application of mind, relevant and necessary for the purpose. Though, submission of a thesis on the various aspects of repugnancy involved may not be the requirement, the reservation for “consideration” would necessarily obligate an invitation of the attention of the President as to which of the pre-existing Central enactments or which provisions of those enactments are considered or apprehended to be repugnant, with reference to which the assent envisaged in Article 254(2) is sought for. This becomes all the more necessary also for the reason that the repugnancy in respect of which predominance is sought to be secured must be shown to exist or apprehended, on the date of the State law and not in a vacuum to cure any and every possible repugnancy in respect of all laws — irrespective of whether it was in the contemplation or not of the seeker of the assent or of the President at the time of “consideration” for according assent.

75. This Court has, no doubt, held that the assent accorded by the President is not justiciable, and courts cannot spell out any infirmity in the decision arrived at, to give the assent. Similarly, when the President was found to have accorded assent and the same was duly published, it cannot be contended that the assent was not really that of the President, as claimed. It is also not given to anyone to challenge the decision of the President according assent, on merits and as to its legality, propriety or desirability. But that is not the same thing as approving an attempt to draw a blanket or veil so as to preclude an examination by this Court or the High Court as to the justifiability and sufficiency or otherwise of the protection or predominance claimed for the State law over the law made by Parliament or the existing law, based upon the assent accorded, resulting at times in substantial alteration, change or modification in the rights and obligations of citizen, including the fundamental rights. When the Constitution extends a form of protection to a repugnant State law, permitting predominance and also to hold the field in the place of the law made by the Centre, conditioned upon the reservation of the State law

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for consideration of the President and obtaining his assent, it is to be necessarily viewed as an essential prerequisite to be effectively and meticulously fulfilled before ever availing of the protection and the same cannot be viewed merely as a ceremonial ritual. If such a vitally essential procedure and safeguard is to be merely viewed as a routine formality which can be observed in whatever manner desired by those concerned and that it would be merely enough, if the assent has been secured howsoever obtained, it would amount to belittling its very importance in the context of distribution of legislative powers and the absolute necessity to preserve the supremacy of Parliament to enact a law on a concurrent topic in List III, for the entire country. It would also amount to acceptance of even a farce of compliance to be actual or real compliance. Such a course could not be adopted by courts except by doing violence to the language, as well as the scheme, and the very object underlying Article 254(2).

76. Different provisions of the Constitution envisage the grant of assent by the President as well as the Governor of a State. Article 111 provides for the assent of the President to a Bill passed by the Houses of Parliament, in the same manner in which Article 200 empowers the Governor of a State in respect of a Bill passed by the Legislative Assembly or by the Houses of the legislature where there is a Legislative Council in addition to the Assembly. Parliament for the Union consists of the President and two Houses as the legislature of States consists of the Governor and the House or Houses, as the case may be (vide Articles 79 and 168). The policy-making executive power of the Union also vests with the President, as the executive power of the State vests with the Governor, and those powers have to be exercised with the aid and advice of the Council of Ministers, for the Union headed by the Prime Minister and for the State to be headed by the Chief Minister. The President or the Governor, as the case may be, as and when a Bill after having been passed is presented, may accord assent or as soon as possible thereafter return the Bill to the Houses with a message requesting to reconsider

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the Bill or any provisions thereof, including the introduction of any amendment as recommended in his message and if thereafter the Houses on reconsideration of the Bill, pass the Bill again with or without amendment and present the same for the assent, the President/Governor, as the case may be, shall not withhold his assent. Being an exercise pertaining to expression of political will, apparently, the will of the people expressed through the legislation passed by their elected representatives is given prominence by specifically providing for a compulsory consent or assent. The same could not be said with reference to the “assent” of the President envisaged under Articles 31-A, 31-C, 254(2) and 304(b) of the Constitution. In my view, the “assent” envisaged in these articles by the very nature and character of the powers conferred constitute a distinct class and category of their own, different from the normal “assent” envisaged under Articles 111 of the President or Article 200 of the Governor. Article 201 also would indicate that even when for the second time the Houses of the State Legislature pass the Bill and present for “consideration”, there is no compulsion for the President to accord assent. Therefore, the reservation of any Bill/Act for the “consideration” of the President for according his assent, keeping in view, also the avowed object envisaged under Article 254(2), renders it qualitatively different from the ordinary assent to be given by the President to a Bill passed by Parliament or that of the Governor to a Bill passed by the legislature(s) of the State concerned.

77. The assent of the President or the Governor, as the case may be, is considered to be part of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill passed could not be considered to be an Act or a piece of legislation, effective and enforceable and not to extend the immunity in respect of procedural formalities to be observed inside the respective Houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside and besides those formalities. The powers

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actually exercised by the President, at any rate under Articles 31-A, 31-C, 254(2) and 304(b) are a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the fundamental rights of citizens and federal structure of the country’s polity as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or an overriding effect over that Central enactment of Parliament to which no specific reference of the President at all has been invited to. This, in my view, is a must and an essential requirement to be satisfied; in the absence of which the “consideration” claimed would be one in a vacuum and really oblivious to the hoard of legislations falling under the Concurrent List in force in the country and enacted by Parliament. To uphold as valid the claim for any such blanket assent or all-round predominance over any and every such law — whether brought to the notice of the President or not, would amount to legitimization of what was not even in the contemplation or consideration on the basis of some assumed “consideration”. In order to find out the real state of affairs as to whether the “assent” in a given case was after a due and proper application of mind and effective “consideration” as envisaged by the Constitution, this Court as well as the High Court exercising powers of judicial review are entitled to call for the relevant records and look into the same. This the courts have been doing, as and when considered necessary, all along. No exception therefore could be taken to the High Court in this case adopting such a procedure, in discharge of its obligations and exercise of jurisdiction under the Constitution of India.” (Emphasis supplied)

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353. It is pertinent to note that it was observed by Doraiswamy, J., that the assent of the President under Article 254(2) is not of the same nature as the assent of the President or the Governor under Article 111 and 200 of the Constitution respectively. He placed strong emphasis on the use of the expression “consideration” in Article 254(2) to hold that such a consideration by the President would be meaningless in the absence of a clear and specific reference made to him pointing out the repugnancy between the Central law and the proposed State law.

354. While the observations made in Kaiser-I-Hind (supra) as regards the import of the expression “consideration” were in the context of Article 254(2), the same would apply to every bill reserved for the consideration of the President under Article 201 as the expression “consideration” finds a mention in Article 201 as well. Thus, the reservation for the consideration of the President must be accompanied by a reference which contains specific details as regards the purpose why the consideration of the President is sought.

355. The reason why this Court in Kaiser-I-Hind (supra) insisted that the requirement of delineating the reasons necessitating the reservation of a bill by the Governor rests upon the State government is because it is the State through its Council of Ministers who are objectively better equipped in doing so, by virtue of the fact that the genesis of such bills is normally spearheaded by the Council of Ministers. Their close involvement in the deliberations that culminated into the bill, their crucial role as part of the members of the house of legislature and them being reposed with the responsibility of overall governance and well-being of the State, provides them the necessary expertise to assign robust reasons in making a reference. The State Council of Ministers being uniquely positioned to understand the legislative requirements of the State, the policy imperatives prevailing therein, and the socio-economic conditions demanding redressal, can better voice the reasons that ought to accompany such a reference which the Governor otherwise may not be capable of reasonably and comprehensively ascertaining if not for the aid and advice of the council of ministers.

356. It is in this background that we are of the view that the Governor would be duty bound to give careful deference to the aid and advice of the State Council of Ministers and only in the limited of exceptional

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circumstances may he deviate from such advice tendered to him, subject to the reference being in tune with the aforesaid principles enunciated in the preceding paragraphs.

357. We have given some thought to the observations made in the aforesaid decisions as regards the non-justiciability of the assent of the President. As per the settled principles of parliamentary democracy across the world, the grant of assent to legislations is construed as a power of the head of state which is to be exercised only upon the aid and advice of the Council of Ministers. As per Articles 74(2) and 163(3) of the Constitution respectively, the question whether any, and if so what, advice was tendered by the Ministers to the President or the Governor, shall not be inquired into by any court. A perusal of Articles 111, 200 and 201 respectively makes it clear that no reasons are required to be provided by the President or the Governor for according assent to bills. However, if the President or the Governor exercise the option of withholding of assent under Article 111 or 200 respectively, then there is a requirement to communicate the reasons for such withholding in the form of a message to the House or Houses of the legislature. Similarly, as has been discussed with great emphasis in Kaiser-I-Hind (supra), if there is any reservation of Bills for the consideration of the President by the Governor, then the same must be reflected by way of a specific and clear reference providing details as to why the reservation has been made so as to enable the President to “consider” the desirability of according assent to the bill so reserved.

358. The grant of assent to a bill is an exercise which generally takes place on the aid and advice of the Council of Ministers, and assenting to the bill is the only practically possible course of action available to the constitutional heads in most of the common law jurisdictions. The grant of assent may not be justiciable because, there exists an unavailability of any material upon which the courts may be able to undertake a judicial scrutiny. However, the same would not be the case as regards the withholding of assent or reservation of the bill for the consideration of the President, which can only be exercised upon furnishing of detailed reasons for the same.

359. The majority opinion of the Court in Kaiser-I-Hind (supra) held that the legislative procedure to be followed before the enactment of a legislation would always be amenable to judicial review and thus

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it would be open to the Courts to examine the reference which is made by the State government to the President seeking his assent. Applying the same logic, it could be said that the reservation of bills by the Governor for the consideration of the President is also part of legislative procedure and thus the Courts would not be precluded from examining such reference to determine its legality and its constitutional veracity.

360. In the Canadian decision in Galati (supra) the grant of royal assent to a bill was held as non-justiciable on the ground of separation of powers, the grant of assent having been characterised as a legislative act. However, it must be kept in mind that the characterisation of the grant of assent as a legislative act was in the context of the well settled constitutional convention of a responsible government that assent must be granted in accordance with the advice of the Prime Minister. Further, as we have discussed in the preceding paragraphs, it is not the source of power, but the contents thereof which determine the scope of judicial review under the Constitution.

361. On the contrary, Anne Twomey writes that in cases where a Constitution is prescriptive, and a constitutional breach is involved, a court is more likely to hold the breach to be a justiciable issue, even if it relates to the grant of assent to a bill. She refers to the opinion of Millhouse, J. in Re Constitutional Reference No 1 of 2008 reported in [2009] 1 LRC 453, which held that where a country has a written Constitution, the courts always have the jurisdiction to remedy breaches of the Constitution. The said decision was also accepted by the Court of Appeal of Vanuatu in Republic of Vanuatu v Carcasses reported in [2010] 2 LRC 264 which held that while a court will not otherwise inquire into or adjudicate upon issues arising in Parliament, it would be empowered to interpret and determine whether there has been a breach of a constitutional right.

362. As described in Kaiser-I-Hind (supra), the role of the President under Article 201 is a sui-generis one, tailor made to fit the quasi- federal constitutional scheme. The role of the Governor in reserving bills for the consideration of the President is also intrinsically linked with this constituent role of the President. It was also observed that the grant of assent is considered a legislative act only for the limited purpose that without it a bill cannot become law and also for extending immunity to certain formalities to be followed within the

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legislature. This immunity does not extend to other aspects of the legal procedure which fall beyond the ambit of these limited formalities. Thus, compliance with the prescribed legislative procedure leading up to assent is open to judicial scrutiny in appropriate cases. Further, as we have discussed in the preceding paragraphs, the reservation of bills for the consideration of the President by the Governor is warranted only in certain limited situations.

363. The observations in the aforesaid decisions as regards the non- justiciability of the assent of the President under Article 201 cannot be construed to mean that the withholding of assent and reservation of bills by the Governor under Article 200, as well as withholding of assent by the President under Article 201 are beyond the scope of judicial review. The observations of non-justiciability of assent of the President under Article 201 can be explained in light of the assent under Article 201 being predominantly a matter of federal policy of the Union government. On certain subject matters prescribed in various provisions of the Constitution, and on subject matters falling in the Concurrent List, the Constitution has accorded primacy to the Centre over the States. On issues of repugnancy, for illustration, it is only on the approval of the President, that a State law which is repugnant to a Central legislation can become enforceable. No obligation is placed on the President to grant assent under Article 201 and it is to be decided by the President on the aid and advice of the Union Council for Ministers. It is in view of this position and for the limited extent of judicially manageable standards of evaluation that the assent under Article 201 has been described as non-justiciable.

364. However, the same is not the case when the courts have to consider the withholding of assent or reservation of bills by the Governor under Article 200. Our discussion on the scope of discretion available to the Governor makes it clear that the Governor exercises discretion in a very limited domain when discharging his functions under Article 200. He may reserve the bills for the consideration of the President only for achieving certain predetermined purposes and his personal views, disliking for the policy, or the views of the Union government are not grounds on which he may reserve a bill under Article 200. The nature of constitutional function prescribed for the Governor under Article 200 being such, the exercise of such function can be subjected to judicial review on the standard of being within constitutional bounds. Reserving a bill for the consideration of the

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President is a part of the legislative procedure and must invariably be subjected to judicial review in cases where the constitutionally prescribed procedure is not complied with, or misused.

365. The discharge of functions by the President under Article 201 stands on a different footing than that of the Governor under Article 200. While there is no political hue to the limited discretion conferred upon the Governor under Article 200, and any exercise of such discretion has to be solely on constitutional grounds, the grant of assent under Article 201 has an element of political hue by virtue of the fact that the President under Article 201 has been given the prerogative to decide whether the grant of assent in certain cases would be desirable or not. However, at the same time, what must be remembered is that it is only in those areas where the primacy has been given to the Union would this political consideration be permissible. Additionally, this political hue is not owing to the difference in opinion or political views of the governments at the Centre and the State but is attributable to the desirability of vesting the Union government to exercise certain discretion in matters pertaining to broader issues where uniformity in national policy may be desirable. In such a case, the scope of justiciability under Article 201 would be limited to questions of arbitrariness, malafides and inaction.

366. As a logical sequitur of the above, any exercise of Article 201 in a manner which does not align with this fundamental object underlying Article 201 would be liable to a greater degree of judicial scrutiny. Thus, wherever a bill which falls within the exclusive domain of the State legislature is being referred to the President for his consideration on the ground that it attracts one of the exceptional situations where the Governor may exercise his discretion as mentioned in paragraph 300 of this judgment, it would not be open to the President to withhold assent without ascribing reasons as regards the doubt raised by the Governor to such a bill. In such a case, the ideal course for the President would be to obtain legal opinion as regards the bill, in appropriate cases, by making reference to this Court under Article 143, and only thereafter declare the grant or withholding of assent. Where the grounds of withholding of assent are not concerned with policy areas in which the Union has primacy, the courts would have a greater degree of judicial scrutiny. We say this because on questions of legality, it is the constitutional courts which have been conferred with the power of arriving at a final decision and the object

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of Article 201 is not to thwart the legislative procedure of the States by withholding of assent even in areas falling within the exclusive domain of the States on grounds of legality.

367. We summarise our findings on the judicial review of the exercise of power by the Governor under Article 200 and by the President under Article 201 of the Constitution as follows: a. Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. Such a challenge can broadly be made on the following grounds: (i) Where the reservation is on the ground that the bill is of a description falling under the Second Proviso to Article 200 of the Constitution, it may be assailed on the ground that the bill or any provision thereof does not so derogate from the powers of the High Court so as to endanger the position which that court is designed by the Constitution to fill. The Governor while reserving a bill on this count shall be expected to provide clear reasons and also point to the specific provision(s) of the bill which, in his opinion, attract the Second Proviso. This question being purely of a legal nature would be completely justiciable and the competent court would be, after a proper adjudication, fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action. If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action. (ii) Where the reservation is on account of the bill attracting any provision of the Constitution wherein the assent of the President is a condition precedent for the proper enactment and enforceability of such a bill as a law (such as under Article 364A2) or for the purpose of securing any immunity (such as under Article 31A) or overcoming any repugnancy that may exist qua a Central Legislation (under Article

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254(2)), then the Governor is expected to make a specific and clear reference to the President properly indicating the reasons for such reservation and inviting his attention as described in Kaiser-I-Hind (supra). Such a reservation can be assailed by the State Government, if the reference made by the Governor either fails to indicate the reasons for such reservation as discussed above or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. Then such a reservation would be liable to be set aside. This question being purely of a legal nature would be completely justiciable and the competent court would be after a proper adjudication fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be fit case for issuance of a writ in the nature of mandamus to the Governor for appropriate action. If however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action. (iii) Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M.P. Special Police (supra) and Nabam Rebia (supra) then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pinpointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law. The Governor while making such a reference should also indicate his subjective satisfaction as to why the aforesaid consequences that may ensue cannot be possibly curtailed or contained by taking recourse to the constitutional courts of the country. It shall be open to the State Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or

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motivated by extraneous considerations. This being a question completely capable of being determined by the constitutional courts, would be fully justiciable. (iv) Reservation of a bill on grounds other than the ones mentioned above, such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set-aside forthwith on that ground alone. This will also encompass reservation of a bill by the Governor after having already exercised the option of withholding of assent in terms of Article 200 except in such exceptional circumstance as mentioned in paragraph 204 of this judgment. (v) Where the Governor exhibits inaction in making a decision when a bill is presented to him for assent under Article 200 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 250 of this judgment then it shall be open to the State Government to seek a writ of mandamus from a competent court against the Governor directing expeditious decision on the concerned bill as is the mandate of the Constitution, however, it is clarified that the Governor may successfully resist such a challenge on providing sufficient explanation for the delay caused. b. Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court. Such a challenge can broadly be made on the following grounds: (i) Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner. Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint.

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(ii) Where a State bill has been reserved by the Governor, in his discretion, for the consideration of the President on the ground that the bill appears to be patently unconstitutional for placing the principles of representative democracy in peril, the withholding of assent by the President would, in ordinary circumstances, involve purely legal and constitutional questions and therefore be justiciable without any impediments imposed by the doctrine of political thicket. In such cases, it would be prudent for the President to obtain the advisory opinion of this Court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides. (iii) Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court.

368. We summarise our findings on the judicial review of the exercise of power by the President under Article 201in withholding assent to a bill as follows: a. Where the bill which is under consideration is pertaining to a provision of the Constitution where primacy has been given to the Union government in taking a decision keeping in consideration the desirability of having certain uniform standards of national policy, then the limited grounds of judicial review would be based on arbitrariness, malafides, etc. b. Where the bill which is under consideration pertains to a subject matter or domain within which State legislature has been accorded primacy, and the reservation of the bill is by the Governor contrary to the aid and advice of the State Council of Ministers, then in exercise of judicial review the courts would be competent to look into the reasons for withholding of assent and whether they are legally tenable or not, besides the grounds of malafides and arbitrariness, etc.

369. We clarify that the possible situations illustrated by above are not meant to be exhaustive and in the specific facts of a given case,

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the courts may evolve new standards of judicial scrutiny to ensure that the constitutionally prescribed procedure is adhered to in letter and spirit.

vi. What is the manner in which the President under Article 201 of the Constitution is required to act once a Bill has been reserved for his consideration by the Governor under Article 200 of the Constitution?

370. As we have discussed, Article 200 provides three courses of action to the Governor when a bill is presented to him - to assent, to withhold assent or to reserve the bill for the consideration of the President. If he declares assent, then the bill becomes an Act of the State legislature. If he withholds assent, then the procedure prescribed under the first proviso springs into motion. However, the procedure which is to be followed once a bill is reserved for the consideration of the President is provided in Article 201 of the Constitution. Article 201 was adopted without any debate in the Constituent Assembly on 01st August, 1949. It reads as follows: “201. Bills reserved for consideration. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.”

371. A plain reading of Article 201 indicates that once a bill is reserved by the Governor for the consideration of the President, the President has two options to choose from - he may either assent to the bill, which would bring the legislative process to a conclusion and

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the bill would become an act, or he may withhold his assent to the bill.

372. The proviso to Article 201 provides that in case of bills other than money bills, the President may direct the Governor to return the bill to the State legislature together with a message as is mentioned in the first proviso to Article 200. Once the bill is so returned, the State legislature is required to reconsider the bill in light of the suggestions of the President within a period of six months and if the Bill is passed again, with or without amendments, it shall be presented again to the President for his consideration.

373. There are some features of Article 201 which are markedly different from Articles 111 and 200. The proviso to Article 111 as well as the first proviso to Article 200 mandate the President and the Governor respectively to assent to a bill which has been reconsidered by the Parliament and State legislature respectively and presented to them for the second time. However, the proviso to Article 201 does not place any such obligation on the President to mandatorily accord assent to a bill which is placed before him after reconsideration by the State legislature. This is evident from the absence of the expression “shall not withhold assent therefrom” in the proviso to Article 201. This is also brought out from the difference between the language employed in Articles 111 and 200 vis-a-vis that employed in Article

201. The first proviso to Article 111 uses the expression “and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent”. Similarly, the first proviso to Article 200 also uses the expression “and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent”. However, the proviso to Article 201 uses the expression “and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration”. Instead of the expression “for assent”, the proviso to Article 201 uses the expression “for his consideration” thereby indicating that the President is not bound to accord assent to a bill even when it is presented to him for the second time. In other words, the object behind presentation of the bill for the second time after reconsideration under Articles 111 and 200 respectively is to obtain assent, whereas under Article 201, the object of the presentation is to yet again present the bill for the consideration of the President.

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374. Further, the proviso to Article 201 places an obligation on the State legislature to reconsider the bill in accordance with the suggestions of the President within a period of six months from the date of receipt of the message containing the suggestions. There is no similar obligation on the Parliament or the State legislature to reconsider the bill within a stipulated time period under Articles 111 and 200 respectively. This absence of this six-month time period under Articles 111 and 200 respectively could also be seen as an indication of the primacy which is accorded to the Parliament and State Legislature as regards the bill which is presented for assent under the said provisions. They may choose to repass the Bill after taking into account the message which has been sent without being bound by the rigours of a time- limit. This is because it is they who ultimately decide whether the bill would see the light of day or not, as far as Articles 111 or 200 are concerned. As discussed by us in the preceding paragraphs, under Articles 111 and 200 respectively, the bill would only “fall through” if the Parliament or the State Legislature chooses or elects not to repass the concerned bill after it has been returned to them and the trust of expediency has been reposed on the constitutional head of the country and State, being the President and the Governor respectively. However, under Article 201, the prescription of the time-limit of six months for the State legislature to reconsider the bill returned to them, is indicative of the fact that the requirement to act expediently is also placed on the State legislature.

375. Any symptoms of lethargy exhibited by the State legislature which is the recipient of a bill sent after the procedure under Article 201 is adopted, is viewed strictly by the Constitution. Here, inaction by the State legislature or delayed action by them in terms of repassing of the bill would cause the bill to “fall through” instead. The consequences of the failure to act promptly and in a punctual manner is more grave and severe for the State legislature under Article 201 since the premise is that the occasion for the reservation of a bill for the consideration of the President by the Governor may arise where a constitutional provision makes the assent of the President a condition precedent to a State legislation becoming enforceable or for the purpose of conferring some immunity upon the State legislation. Such a requirement can be found in Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. The second proviso to Article 200 also makes reservation for the consideration of the

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President mandatory. As we have also discussed, there may be certain other legitimate situations where the Governor may, in exercise of his discretion, reserve a bill for the consideration of the President. The matters attracting the aforesaid provisions require the procedure in Article 201 to be initiated since they pertain to areas wherein the Centre could be said to have precedence or an edge over the State governments. This is because the considerations herein involve questions pertaining to the larger economic policy of the Union, safeguarding the fundamental rights of citizens and maintaining the integrity of the country as a whole. For example, the uniformity of policy across States for matters falling under the Concurrent List would be a valid arena wherein the interest of the Union might need to be paid heed to in comparison with those of the States. Hence, a higher degree of the power of scrutiny of the President would be implicit in such matters and he, having consulted the Union Council of Ministers, could be said to have the final say which has the effect of overriding those wishes of the State legislature.

376. The special object fulfilled by Article 201 and the important position it occupies in maintaining the quasi-federal structure of the country has been explained in detail by this Court in Kaiser-I-Hind (supra) as follows: “76. [...] The same could not be said with reference to the “assent” of the President envisaged under Articles 31-A, 31-C, 254(2) and 304(b) of the Constitution. In my view, the “assent” envisaged in these articles by the very nature and character of the powers conferred constitute a distinct class and category of their own, different from the normal “assent” envisaged under Articles 111 of the President or Article 200 of the Governor. Article 201 also would indicate that even when for the second time the Houses of the State Legislature pass the Bill and present for “consideration”, there is no compulsion for the President to accord assent. Therefore, the reservation of any Bill/Act for the “consideration” of the President for according his assent, keeping in view, also the avowed object envisaged under Article 254(2), renders it qualitatively different from the ordinary assent to be given by the President to a Bill passed by Parliament or

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that of the Governor to a Bill passed by the legislature(s) of the State concerned.

77. [...] The powers actually exercised by the President, at any rate under Articles 31-A, 31-C, 254(2) and 304(b) are a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the fundamental rights of citizens and federal structure of the country’s polity as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or an overriding effect over that Central enactment of Parliament to which no specific reference of the President at all has been invited to. This, in my view, is a must and an essential requirement to be satisfied; in the absence of which the “consideration” claimed would be one in a vacuum and really oblivious to the hoard of legislations falling under the Concurrent List in force in the country and enacted by Parliament. [...]” (Emphasis supplied)

377. Dr. K.C. Markandan writes that Article 201 seeks to serve the same purpose in the legislative sphere as Article 365 seeks to do in the administrative sphere, namely, make the Constitution “unfederal” in character, to establish the fact that the distribution of legislative power between the Centre and the States is not on an exclusive basis but that the exercise of legislative power of the State is subject to the overall responsibility of the Centre and its legislative ambit. He states that no other explanation can justify the inclusion of this provision in the Constitution.31

31 K.C. Markandan, Centre State Relations The Perspective 120 (ABS Publications 1986).

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378. It is in such a background and context that the prescription of the six-month time limit upon the State legislature for re-passing the Bill and presenting it before the President for his consideration assumes more significance. Non-adherence or any absence of deference to this time-limit would prove to be detrimental to the cause of the State itself since the balance of power is inherently skewed in favour of the Union on such matters. Having said so, and also conscientiously discussed by us in the preceding paragraphs, this is why the reference by the Governor of bills for the consideration of the President must be strictly by and under the strength of clear provisions of the Constitution.

379. The features of Article 201 which have been the cause of differences in Centre-State relations over the years are as follows: a. There is no time-limit within which the President is required to declare the grant or withholding of assent under Article 201 once the bill is reserved for his consideration by the Governor. Unlike Articles 111 and 200 respectively, the expression “as soon as possible” is also not used. Owing to this, a number of bills enacted by the legislatures of various States remain pending with the President awaiting a decision. b. There being no obligation upon the President to mandatorily assent to a bill under Article 201, if a bill is reserved for the consideration of the President by the Governor acting in his discretion, then it has the effect of rendering the enactment of the bill by the State legislature nugatory, if the President keeps the bill pending with him or declares the withholding of assent to such a bill.

380. As regards the issue of delay under Article 201, as we have discussed in the preceding paragraphs, the Sarkaria Commission observed that the delay in the expeditious disposal of bills reserved for the consideration of the President was one of the major causes of strain in Centre-State relations. It also recommended that definite timelines must be adopted for facilitating the efficient disposal of references under Article 201. The timelines suggested by the Commission are indicated in paragraph 120 of this judgment.

381. Besides prescribing timelines, the Commission also suggested that the reference being made by the Governor must be self-contained

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and contain all necessary information. We have discussed that the same was also observed by this Court in Kaiser-I-Hind (supra) in the context of references being made under Article 254(2). The reading of a timeline in Article 201 was also suggested by the Punchhi Commission.

382. While the language of Article 201 does not provide for any timelines within which the President is required to act, the absence of a time limit cannot be construed as indicating that the discharge of functions by the President under the said Article can be done without due deference to the important nature of the role they occupy as regards the legislative machinery of the State. Any bill(s) reserved for the consideration of the President cannot become an act unless it receives the assent as is mentioned in Article 201, and thus, long and undue delays in the disposal of references by the President would have the effect of keeping the bill(s), which are an expression of the popular will embodied by the State legislature, in an indefinite and uncertain state of abeyance.

383. Although we are cognisant of the fact that in discharge of his powers under Article 201, the President is expected to “consider” the bill and such “consideration” may be difficult to be bound by strict timelines, yet it cannot be a ground to justify inaction on part of the President.

384. We have discussed in detail in the preceding paragraphs that where no time for the exercise of a power has been stipulated, such power must be exercised in a reasonable time, so as to not render the subject matter nugatory or dilute the purpose sought to be achieved. The delay on part of the President in deciding a reference under Article 201, without any justification or necessity, would fall foul of the basic constitutional principle that the exercise of a power must not be arbitrary and capricious. The implications of inaction being of a serious nature and detrimental to the federal fabric of the Constitution, there should be no scope for unnecessary delay on part of the President under Article 201 as well.

385. At this juncture, we deem it apposite to refer to the office memorandum issued by the Ministry of Home Affairs, Government of India dated 04.02.2016 to all the Ministries/Departments of the Government of India regarding the expeditious disposal of State bills reserved for the assent of the President. The same is reproduced hereinbelow:

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“ Urgent State Bill File No. 23/18/2015-Judl & PP (Part III) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (Judicial & PP Section) NDCG-II Building, 4” Floor Jai Singh Road, New Delhi-110001 The February 4th of 2016 OFFICE MEMORANDUM Subject: Guidelines on State Legislations - regarding. The undersigned is directed to invite to this Ministry’s D.O. letter no: 23/33/1992-Judi dated 22.09.1992 duly conveying the guidelines formulated and approved by the Cabinet for disposal of State legislative proposals. Despite these clear guidelines, it is observed that undue delay is caused in taking a final decision on such Bills.

2. The matter has been recently reviewed and a set of supplementary guidelines for expeditious examination and disposal of State Legislative proposals by the Central Ministries / Departments / State Governments has been formulated. These are stated below for strict adherence: State Bills/Legislative proposals are to be examined in such a way that objections/views of the concerned Central Departments/Ministries, if any, be meaningful as addressing the unreasonable queries/observations delays the entire process. ii). A time limit of maximum 3 months be strictly adhered to for finalizing the Bills after their receipt from the State Governments. iii). The Ministry concerned should communicate their view on substantive issues within 15 days from the date of receipt of communication and if they are not able to communicate, they should mention the reasons for the delay. In case Departments/Ministries are not able to

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communicate their comments/views in a period of one month, it will be construed that they have no comments to offer on the proposal. iv). The substantive issues involved in the Bills should be dealt by the Ministries concerned and issues relating to language/drafting and Bill’s constitutional validity should be checked by the Ministry of Law. v). As regards Ordinances, which are of urgent nature and are promulgated in view of the urgency, presently a time limit of 2 weeks has been permitted to the Ministries/ Departments concerned for offering their views, but often the comments are not received within the prescribed time limit. Hence, as in the case of State Bills, if the Ministries / Departments are not able to communicate their comments/ views on the Ordinances in a period of two weeks, it will be construed that they have no comments to offer on the proposal, and MHA will process in consultation with D/o Legal Affairs of the M/o Law and Justice so as to dispose the Ordinances off within a period of one month from the date of their receipt in the MHA.

3. It is requested that all State Bills / Ordinances be processed in the light of aforesaid guidelines and within the time limit as specified. All the currently pending Bills /Ordinances may be reviewed urgently in terms of above guidelines in order to ensure their disposal within three weeks’ time.

4. The receipt of this letter may kindly be acknowledged. Sd/- Thangkholun Haokip Under Secretary to the Govt. of India Tel./Fax : 011-23438095” (Emphasis supplied)

386. The aforesaid memorandum indicates that the procedure involved after a reference is made to the President by the Governor is that the Union Ministry of Home Affairs as the nodal Ministry would refer the substantive issues involved in the bill to the appropriate Ministry at the Centre which is concerned with the subject matter

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and issues pertaining to the bill’s language, drafting or constitutional validity to the Law Ministry at the Centre. In this process, the Office Memorandum lays down strict guidelines directing the concerned Central Departments or Ministries that the objections or views that they may have to the bill must be meaningful and precise. Such a stipulation has been laid down because the making of unreasonable queries or observations only serves to delay the entire process of consideration of a bill by the President under Article 201. The Ministry concerned with the substantive issues as regards the bill is required to communicate their views to the Home Ministry within 15 days from the date of receipt of the bill. If there is a deviation from the said time restriction, they must assign reasons for the delay that has ensued on their part. The failure to indicate so within a maximum period of one month, is construed strictly and understood to mean that the concerned Ministry may have no comments whatsoever to offer on the proposal. A perusal of the aforesaid also makes it clear that a timeline of three months has been prescribed for the decision on bills reserved for the President. A time limit of three weeks has been prescribed for the disposal of ordinances of an urgent nature.

387. Another office memorandum was issued by the Ministry of Home Affairs to all the States/UTs on the same date in this regard and is reproduced below: “ Urgent State Bill File No. 23/18/2015-Judl & PP (Part III) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (Judicial & PP Section) NDCG-II Building, 4” Floor Jai Singh Road, New Delhi- 110001 The February 4th of 2016 OFFICE MEMORANDUM Subject: Guidelines on State Legislations - regarding. The undersigned is directed to say that the Ministry of Home Affairs is the nodal Ministry for processing and conveying a final decision with respect to State

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Legislations under Article 201 read with Article 254(2) of the Constitution; State Legislations requiring previous sanction of the President under Article 304(b) of the Constitution and Ordinances for the instructions of the President under Article 213(1) etc.

2. On receipt of such a reference, this Ministry examines and seeks the views of the concerned Central Departments/ Ministries. Once the views of the Central Departments/ Ministries concerned are obtained, these are again examined and in case of any objections, the same are shared with the State Government concerned seeking their views/ clarifications so that the Central Departments/Ministries concerned can be apprised of the clarifications of the State Government. This is an integral part of the present processing system. However, it has been observed that State Governments do not send requisite clarifications/views on the comments made by the Central Departments/Ministries and thus, a decision in the matter gets unduly delayed.

3. Recently, the matter has been reviewed and a timeline of maximum three months has been fixed for disposing State Bills/cases of previous instructions/ Ordinances from the date of their receipt from the State Government. A maximum period of one month has been kept for Inter- Ministerial consultation and next one month has been kept for obtaining the comments/clarifications of the State Government on the views as conveyed by the Central Departments/Ministries. Since a time bound disposal of State Legislations etc. is in the interest of the State Governments, it is requested that appropriate instructions may be issued to all concerned to adhere to the timeline of one month for responding to the comments/views of the Central Departments/ Ministries as conveyed by the MHA. If the requisite clarifications/views are not received from the State Government within the stipulated one month’s time, it will be construed that the State Government agrees with the observation and has no comments to offer.

4. It has also been observed that many a time the Bill etc, contains drafting errors and State Governments, despite repeated persuasion, do not withdraw such Bills. Since a

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Bill containing errors cannot be presented to the President, State Governments are requested to kindly verify and check that a Bill is free from any drafting/typographical error. It is also observed that many a time the State Governments agree to make amendments as per the suggestions of Central Ministries/Departments, but still keeps on insisting for assent of the Bill in its original form. It is therefore requested that once the State Government tends to agree with the objections/ views of the Central Departments/ Ministries, the State Government may consider sending a consolidated proposal alongwith suggested amendments/ modifications instead of insisting for assent of the Bill in their original form

4. It is requested that all concerned may be instructed to follow the aforesaid guidelines scrupulously. All the existing cases pending with the State Government may kindly be reviewed in the light of these guidelines in a time-bound manner.

5. The receipt of this letter may kindly be acknowledged. Sd/- Thangkholun Haokip Under Secretary to the Govt. of India Tel./Fax : 011-23438095”

388. The aforesaid memorandum then clarifies that when the appropriate Ministry at the Centre, which is concerned with the substantive issues, makes any objections, the same is then shared with the concerned State government for further seeking their views or clarifications on the matter. This is done with the object of apprising the concerned Central Ministry of the clarifications of the State government on the matter. A time-limit of one month has been prescribed for the same. As aspect of concern highlighted herein was the inaction or delayed action on part of the State government to furnish these relevant clarifications which further has the ripple effect of postponing the decision of the Centre on the matter. It was further prescribed that the State Governments must rectify any drafting or typographical errors pointed out by the Central Government and once the suggestions of the Central Government are accepted, the State governments

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should send a consolidated proposal containing the amendments rather than insisting on the assent to bill in the original form.

389. It becomes clear upon the perusal of the guidelines that in recognition of the urgent and important nature of Article 201, the Central Government has framed clear guidelines as regards the time limits and the manner in which references under Article 201 are expected to be disposed of. The guidelines also lay down that any delay caused in the seeking of clarifications and making of suggestions by any Ministry would have to be explained by furnishing reasons, in the absence of which, it would be assumed that they have no objections. It would be apposite for us to observe here that the idea of imposing timelines on the various stakeholders would not be antithetical or alien to the procedure that surrounds the discharge of constitutional functions under Article 201. The existence of the aforesaid two Office Memorandums further substantiates such an interpretation. Afterall, no memorandum which is contrary to the substance and spirit of Article 201 can be allowed to command any procedure between the Union and the States The factum of its existence and acceptance reveals that the requirement of expeditious or even a strict time-bound action would be consistent with the aim and object of Article 201.

390. The recommendations made by the Sarakaria and Punchhi Commissions respectively and the guidelines framed by the Central government taken collectively indicate the expediency involved in the disposal of references under Article 201 along with the importance of the role of the President. In this backdrop, it must be made clear that the Courts would not be powerless to intervene in cases where the exercise of function by a constitutional authority is not being done within# a reasonable time.

391. We, therefore, deem it appropriate to adopt the timeline prescribed by the Ministry of Home Affairs in the aforesaid guidelines, and prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received. In case of any delay beyond this period, appropriate reasons

# Ed. Note: “within” instead of “without” in terms of subsequent corrigendum.

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would have to be recorded and conveyed to the concerned State. The States are also required to be collaborative and extend co- operation by furnishing answers to the queries which may be raised and consider the suggestions made by the Central government expeditiously.

392. We may now advert ourselves to the question on the nature of the proviso to Article 201 and whether it is intrinsically attached to the option of withholding of assent available to the President under Article 201, similar to how the first proviso is fastened to the option of withholding assent available to the Governor under Article 200. Furthermore, how and in what scenarios would the President resort to directing the Governor to return the bill to the House or Houses together with a message?

393. This Court in State of Punjab (supra) had reached the conclusion that the option of withholding of assent under the substantive part of Article 200 would be tethered to the first proviso thereto, predominantly because of the clear use of the expression “shall not withhold assent therefrom” therein. It is limpid that an identical expression remains absent in the proviso to Article 201. Despite this, we must not lose sight of the fact that it was also authoritatively laid down in the same decision that a proviso may fulfil the purpose of being an exception or, explanation/addition to the substantive provision of a statute. Therefore, despite the absence of a similar expression mandating the President to not withhold assent in the proviso to Article 201, constitutional principles would require us to read the proviso in conjunction with the option of withholding assent which the President is empowered to choose from.

394. We say so because the scheme under which the constitutional heads of both the country and the State respectively are required to operate, does not contemplate the idea of an ‘absolute veto’, thereby meaning that there can be no withholding of assent without furnishing of reasons. This is owing to the fact that the simpliciter withholding of assent both by the President and the Governor would be impermissible within the fundamental principles of a constitutional democracy.

395. Since the notion of ‘simpliciter withholding’ is an anathema to Article 200 of the Constitution, there cannot be any gainsaying that any ‘withholding of assent’ in terms of Article 201 must also only take

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place on the strength of a specific provision of the Constitution that envisages the requirement of assent of the President in the first place i.e., those traceable to instances envisaged under Article(s) 31A, 31C, 254(2), 288(2), 360(4)(i)(a), etc. but also must be accompanied by sound and specific reasons that necessitate the withholding, by clearly outlaying the policy considerations on which such an action is predicated.

396. While in the preceding paragraphs we have elaborated that the Governor does not hold the power to exercise ‘absolute veto’ on any bill, we see no reason why the same standard would also not apply to the President under Article 201 as well. The President is not an exception to this default rule which permeates throughout our Constitution. Such unbridled powers cannot be said to remain in either of these constitutional posts. The only exception that has been carved out by the Constitution as regards the exercise of powers by the Governor and that of the President under Article(s) 200 and 201 of the Constitution is that in the former, the Governor once having withheld assent from a bill would then be bound to assent upon the reconsideration of such bill, whereas in the latter no such compulsion is constitutionally imagined for the President, owing to the very fact that the grant or withholding of assent in terms of Article 201 is not the ordinary law-making procedure so far as the States are concerned, it is an extraordinary situation that only arises wherever policy considerations are involved in an otherwise State legislation but nevertheless having the propensity of a pan-country effect that is necessitated by the very quasi-federal nature of our polity.

397. The natural corollary of the constitutional abhorrence to the notion of simpliciter withholding of assent within our Constitution is that a requirement and responsibility of assigning reasons to the withholding of assent is cast upon the President. What follows from this is that the reasons assigned by the President for withholding of assent must be communicated to the State government concerned. Such an inference is legitimate since there remains no logic in assigning reasons if the same cannot be responded to and addressed by the State government. Putting the State government to proper notice of the reconsiderations or amendments to the bill, which the Council of Ministers at the Centre may have, is also an essential obligation inhered in such situations. In the absence of such communication, there exists a real and grave danger of denying the State government

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the knowledge of the reasons due to which the bill passed by the State legislature had not been assented to. Furthermore, there may exist situations where the State governments may be amenable to some remedial changes or amendments. However, in the absence of any communication, they may be robbed of any chance to undertake those changes and ensure that the bill becomes law in their State. The State governments must not be prevented from entertaining or possibly incorporating the changes or amendments to the bill which was originally referred to the President, solely due to the absence of a transparent information sharing mechanism, which the State government may be said to be entitled to in a federal polity. Entertaining such a dialogue assumes importance since the fulcrum of a healthy Centre-State relations, in a constitutional democracy, is the transparent collaboration and cooperation between the Union and the States.

398. The mandate for an effective and purposeful dialogue has been constitutionally recognised and approved through the proviso to Article

201. Making the exercise of this proviso optional or subjecting it to the discretion of the President to use wherever and whenever he deems fit would deprive the States of an important safeguard which has been clearly laid down in the Constitution. Although we are not oblivious to the fact that the Office Memorandums referred by us above provide an opportunity for the State government to respond to the objections that the concerned Ministry at the Centre may have, we must remember that such an Office Memorandum cannot be used to bypass a procedure already laid down in the text of the Constitution. Furthermore, the sending of objections and receipt of clarifications to and from the State government while the proposed bill is under consideration of the President through the concerned Ministry at the Centre, is to enable and infuse an informed decision making in the entire process to avoid any haste or non-application of mind, before taking any decision of either grant of assent or withholding thereof in the first place.

399. However, at this stage we may clarify, that although the Memorandum mandates that there must be a channel of transparent and purposeful communication between the State Government and the Central Government, yet this does not mean that the requirement of sending a message in terms of the proviso to Article 201 is eliminated. Mere existence of any communication that may take place prior to any

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decision being taken under Article 201 is no reason to shirk the constitutional responsibility of officially communicating the message to the concerned State legislature. There lies a very fundamental difference between the communication envisaged under the Memorandum and that under the proviso to Article 201. The former is only to address any preliminary objections or doubts as regards the proposed bill and which prevent a meaningful decision from being taken by the President under Article 201 whereas under the latter, the idea is to communicate the reasons as to how the President arrived at his decision to withhold assent along with specifying the provisions of the proposed bill that should be reconsidered by the State legislature.

400. In other words, the sending of preliminary objections under the Memorandum cannot be equated to the message under the proviso to Article 201, which is used to communicate the aspects of the proposed bill to be reconsidered and how they may be reconsidered by the State legislature. Unlike the memorandum, the message under Article 201 of the Constitution is of seminal significance inasmuch as it facilitates the repassing of the bill by the State legislature. What emerges from the aforesaid is that when the President declares the withholding of assent of the State legislature’s proposed bill, it would be his constitutionally bounden duty to also set into motion the proviso to Article 201.

401. In short, after due consultation with the State government, the President may either declare assent to the bill or he may declare that he withholds assent thereto. It would not be appropriate for the President to declare withholding of assent without first seeking clarifications from the State government as is mentioned in the guidelines featuring in the Office Memorandums. If, in the course of discussions, the State government expresses willingness to make such changes to the bill as may be suggested by the Central government, then it would be open to the President to seek reconsideration of the bill by invoking the proviso, and upon the bill being re-considered and passed with such changes, the President may grant assent thereto.

402. At this stage, it would be prudent for the President while choosing to withhold assent to the bill and setting the proviso into motion, to address the issues, views, changes, amendments or recommendations

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that he may have comprehensively and in one go. Piecemeal exercise of the proviso to Article 201 must be dissuaded. This is to prevent the endless loop of sending and re-sending of the bill that may ensue between the President acting under the proviso to Article 201 and the House or Houses of the State Legislature. A purposive interpretation of Article 201 does not in any manner envisage a never-ending cycle of communications between the President and the State Government. Such conduct would tantamount to abusing the essence of the proviso which embodies fostering a collaborative spirit between the Union and the States. Therefore, the exercise of the power under the proviso must also be done in good faith and in a bona fide manner.

403. The object underlying Article 201 and the significance it holds for the enforceability of a State legislation would be frustrated if the procedure therein is reduced to an endless cycle of back and forth without any chance for fruition of the aspirations of the people of the State on mere technicalities. Therefore, the President is expected to follow the procedure envisaged under the proviso with a sense of responsibility whenever necessary. In the ordinary course of action, a bill must be sent back for the reconsideration of the State legislature under the proviso to Article 201, only once.

404. After the bill is sent with a message to State legislature by the President and they repass it, with or without amendments, the President would be empowered to take a final call on the giving or withholding of assent on the bill concerned. If he chooses to assent to the bill, it would become law. There is no gainsaying to the fact that the President under Article 201 is conferred with the power to withhold a bill during the second round, without activating any other procedure, effectively bringing the legislative process vis-à-vis that same bill to an end, in contrast to the scheme of Article 200 wherein the Governor must mandatorily accord his assent to a Bill which is presented to him for the second time.

405. However, if he chooses to withhold his assent, the bill will not take birth as law. It must, however, be noted that even during the withholding of assent of a bill received on the second round, the President would be required to assign clear and sufficiently detailed reasons for arriving at such a decision. Even in the second round, he has no power whatsoever to exercise absolute veto, as the Constitution