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

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does not provide anywhere that withholding of assent can be done simpliciter. Hence, the decision to choose the option of withholding assent after having set into motion the proviso to Article 201 must not be misconstrued to mean that he is exercising an ‘absolute veto’ or a power of a similar nature. We say so because first, the decision has not been arrived at in the first instance without communicating reasons to the State legislature and providing them with an opportunity to reconsider the bill, and secondly, the President is mandated to declare the withholding of assent to the repassed bill with cogent and sufficient reasons at this stage as well.

406. In cases where the reservation is on the ground of repugnancy of the State legislation with a Central legislation, or under one of the provisions where the assent of President has been envisaged for the purpose of enforceability or imparting immunity to the legislation, it would be a matter where the President would decide the question of grant of assent keeping in mind the desirability of having a uniformity in the policy across the country on the subject matter involved. This, as was held in Kaiser-I-Hind (supra), is evident from the fact that the assent under Article 201 is not the same as the assent to be granted under Articles 111 and 201, and the President has been given supremacy under the Constitution as regards the bills covered under Article 201 by virtue of his constituent powers. In this regard, the observations of the Sarkaria Commission may be referred to as guiding principles by the President wherein it was observed thus: “5.10.02 While we agree that the scrutiny by the Union Government need not be confined to the general constitutionality of the Bill or conformity with constitutional provisions under which the Bill has been reserved, we would sound a note of caution that non-conformity of a State Bill to the policy of the Union Government is not always a safe ground for withholding Presidential assent from it. In this connection it is necessary to bear in mind the general principles that underlie the division of legislative powers between the Union and the States with reference to Lists I, II and III of the Seventh Schedule. All matters in the Concurrent List are manifestly of common interest to the Union and the States. The supervisory powers conferred on the Union under Articles 201—

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and 254(2) enable it to secure a broad uniformity in the main principles of the laws on Concurrent List subjects throughout the country. 5.10.03 From a functional angle, all matters in List II cannot be said to be exclusively of State or local concern. Several Entries in List II are either expressly subject to certain entries in List I or overlap to some extent matters in List I or List III. Securing uniformity and coordinating policy on the basic aspects of such matters in List II, having an interface with those in List I, cannot be extraneous to the functions exercised by the President in considering State Bills, under Article 201. 5.10.04 Articles 31A(1), 31C, 288(2) and 304(b) provide for reservation of certain types of State Bills for the consideration and assent of the President. These provisions, read with Article 201—, enable the Union Executive to ensure, on the basic aspects of these special matters, a certain degree of uniformity in the interests of the social and economic unity of the country. Examination of the State Bills of this special category, from the point of their compatibility with the settled policy of the Union, therefore, does not involve any impropriety.

President should not withhold assent merely on consideration of policy differences with respect to matters in List II 5.10.05 Apart from all such matters on which a measure of uniform coordinated policy is desirable, there remains in List II an area which is purely of local or domestic concern to the States. It is with respect to Bills falling within this area of exclusive State concern that utmost caution, circumspection and restraint on the part of the Union Executive is required in the exercise of its supervisory powers under Article 201—. This is all the more necessary if the Bill has been reserved by the Governor in the exercise of his discretion, contrary to the advice of his Ministers. It may not be prudent to veto such a Bill merely on the ground that the legislative policy of the Bill, though otherwise constitutional, does not conform with what the

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Union Government thinks should be its policy with respect to the subject-matter of the Bill. 5.10.06 We recommend that as a matter of convention, the President should not withhold assent only on the consideration of policy differences on matters relating, in pith and substance, to the State List, except on the grounds of patent unconstitutionality such as those indicated in para 5.6.13 above.”

407. Where the ground of reservation of a bill is patent unconstitutionality of a nature described in the exceptional situations in M.P. Special Police (supra), that is where the bill upon becoming law would be a peril to democracy, the decision of the President must be guided by the fact that it is the constitutional courts that have been conferred with the ultimate authority of interpretation of the Constitution and the laws.

408. When a legislation is apprehended to be patently unconstitutional of the nature described in the above paragraph, the courts as the sentinel on qui vive have been empowered by the Constitution to test the vires of such legislation and there is no bar or limitation to the power of judicial review of the courts in this regard. This is in consonance with the constitutional scheme of checks and balances between the three wings of the Government so as to ensure that absolute power does not vest in one authority. Therefore, the power of judicial review by design acts as more than a sufficient safeguard against the enactment of an unconstitutional legislation by the legislature.

409. However, in cases of challenge to legislations duly passed by the legislature and assented to by the executive, the constitutional courts temper their judicial review with the presumption that such legislation is constitutional. This is because the courts deem it appropriate to not interfere with an enactment that has been passed in the wisdom of the legislature and symbolises the political will of our people. It is in this context, that we find it worthwhile to note the remarks of the eminent constitutional jurist, Nani Palkhivala on the object of assent by the executive to a bill – “The object of enacting these provisions [Articles 200 and 201] was perhaps that while the constitutionality of a law can be challenged in a court, its wisdom cannot be and that it would be better to prevent a clearly unconstitutional legislation from becoming law than to have it invalidated by a court later.” However,

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the aforesaid statement should not be construed devoid of its context, more particularly in ignorance of Article 143 of the Constitution which we shall now discuss.

410. We are in agreement that one of the object of Article 201 is also to prevent a bill that is perilous to democratic principles. However, we are also of the view that a bill appearing to be unconstitutional must be assessed by a judicial mind. It is for this reason that both the Sarkaria Commission and the Punchhi Commission categorically recommended the President to seek the opinion of this Court under Article 143 in respect of bills that may be apprehended to be patently unconstitutional.

411. Article 143 confers on the President the power to consult this Court any time when it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it. Therefore, the President is not just precluded but constitutionally expected to refer the question of vires of a bill to this Court as the apex judicial institution to ascertain the constitutionality thereof and accordingly enable the President to take action in respect of the said bill under Article 201.

412. We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the Governor to refer bills to the constitutional courts for their advice or opinion thereupon. Under the scheme of the Constitution as we see it, there is only one possible way for the Governor to ascertain the palpable constitutionality of a bill, which is by way of reserving it for the consideration of the President who in turn is then expected to invoke Article 143. The Constitution is not a maze, but a labyrinth. Although both may semantically appear to be one and the same, yet there is a very fine but discernible difference between the two. The difference lies in the fact that in a maze one may lose their way within the multiple overlapping paths, with the possibility of each of them leading to a dead-end, however in a labyrinth one eventually finds the way and in the process also come out more enlightened. Similarly, any questions emanating

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from the Constitution or pertaining thereto such as the constitutional vires of a law must be uncovered through the foresightedness of our Constitution. Wherever, a bill is reserved by the Governor for the President on the ground of patent unconstitutionality of the nature wherein the exercise of discretion by the Governor is permissible under Article 163(1), the Constitution expects the President to be the soothsayer, easing the sails for the Governor.

413. This very same constitutional obligation cast on the President is also provided in Article 154H of the Constitution of Sri Lanka wherein if the Governor is of the opinion that a statute enacted by a provincial council is unconstitutional, then he may refer the bill to the President who in turn is obligated to make a reference to the Supreme Court of Sri Lanka for obtaining pronouncement on the constitutional vires of such bill. Where the Supreme Court holds the statute to be constitutional, then the Governor is bound to grant assent. A similar framework is followed in the Republic of Kiribati where Section 66 of the Constitution of Kiribati allows the Beretitenti, who is the constitutional head of the State, to withhold assent to a bill only if he believes that such bill is inconsistent with the constitution. In such a case, he may return the bill back to the Parliament however, if the bill is passed again then the only option left with the Beretitenti is to either assent or to refer its vires to the High Court for a declaration. If the court declares the bill to be constitutional then the assent must be granted forthwith.

414. The object of Article 143 in context of reference of bills, whose constitutionality is under consideration by the President under Article 201, has been explained by the N.L. Untwalia, J., In Re: The Special Courts Bill, 1978 reported in (1979) 1 SCC 380. The relevant portion of his judgment is reproduced below: “143. [...] I see no harm in adopting the method of giving some suggestions from the Court which may obliterate a possible constitutional attack upon the vires of a Bill. It may not be necessary or even advisable to adopt such a course in all References under Article 143 of the Constitution. But if in some it becomes expedient to do so, as in my opinion in the instant one it was so, I think, it saves a lot of public time and money to remove any technical lacuna from the Bill if the Government thinks that it can agree to

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do so. Of course the Bill by itself is not a law. It would be a law when passed by the Parliament. But even at the stage of the Bill when opinion of this Court is asked for, it seems to me quite appropriate in a given case to make some suggestions and then to answer the Reference on the footing of acceptance by the Government of such of the suggestions as have been accepted. [...]” (Emphasis supplied)

415. The view taken In Re: Special Courts (supra) was that consultative jurisdiction under Article 143 may avoid any possible challenges to the vires of a bill if it becomes an Act. On basis of the dictum in the said reference, we are of the considered view that constitutional courts are not precluded from making suggestions or opining about the constitutional validity of a bill before the same becomes a law. This is because preventing a patently unconstitutional bill from being enacted saves not only public resources but also respects the wisdom of the legislature by providing the constitutional functionaries associated with the process of passage of a legislation, to review the bill and take appropriate actions. However, the approach of prevention before cure cannot be stretched to such extent, that the very process of reservation becomes a resort for thwarting the very legislative powers of the States. The President’s recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government’s approach to bills reserved under Article 200.

416. The approach to be adopted by the courts in answering references under Article 143 in respect of reserved bills also requires a perusal of constitutional provisions viz. Articles 31A, 31C, 254, 288, 360, etc. that place a requirement of assent to a bill by the President, either expressly or by necessary implication. The scope of these Articles is largely centred around social, economic and political objectives that are sought to be achieved by a State. The necessity for Presidential assent in case of legislations under these Articles is for enabling the Central government to streamline policies and ensure uniformity in socio-economic and welfare measures across States. In contemplation of the bills under these Articles, the central government, more often than not, has policy considerations in mind and the reasons for assent or withholding thereof may not be on purely legal grounds.

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417. It is in such situations that the court has to be mindful as to whether the reference received from the President under Article 143 pertains to pure legal questions regarding interpretation of the Constitution or questions that are in the nature of a policy consideration. In case of the latter, the Supreme Court, having regard to the relevant facts and circumstances, can refuse to express its advisory opinion upon being satisfied that the questions presented to it are purely socio-economic or political questions and have no relation to the Constitution.

418. The exercise of a self-imposed restraint by the court in matters involving purely political considerations is in consonance with the doctrine of political thicket, that is, the courts do not venture into areas of governance in which the Constitution gives a prerogative solely to the executive. For instance, the question whether a State legislation repugnant to a central law should be assented to by the President or not under Article 254(2) is largely a policy decision on part of the Union Government. In such matters, the court has its hands tied and does not attempt to encroach into the functions of the executive wing.

419. However, in certain exceptional circumstances, the Governor may reserve a bill for consideration of the President on grounds that the bill is perilous to the principles of democracy and an interpretation of the Constitution is necessary to ascertain whether such legislation should be granted assent or not. In such cases where a bill has been reserved majorly on the grounds of not being in consonance with the constitutional principles and involves questions of constitutional validity, the executive is supposed to exercise restraint. It is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143. We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill.

420. Since the constitutionality of a bill is a matter which falls within the exclusive domain of the courts, the opinion rendered by the Supreme Court under Article 143 holds high persuasive value and should ordinarily be accepted by the legislature and the executive. We are

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no strangers to the arguments as regards the non-binding nature of the advisory jurisdiction of this Court and that even though a bill may be referred to this Court by the President under Article 143, yet the opinion delivered thereunder may not be heeded to. However, merely because the jurisdiction under Article 143 is not binding does not undermine the principles used by this Court to determine the constitutionality of the bill. This Court in Re Special Courts (supra) has held thus: “34. Learned counsel for the interveners who oppose the reference urged as one of the planks of attack on the reference that it is futile for us to consider the constitutional validity of the Bill because whatever view we may take, it will still be open to the Parliament to discuss the Bill and to pass or not to pass it as it pleases. This argument proceeds upon an unrealistic basis, its assumption being that the Parliament will not act in a fair and proper manner. True, that nothing that we say in this opinion can defer the Parliament from proceeding with the Bill or dropping it. That is because, no court will issue a writ or order restraining the Parliament from proceeding with the consideration of a Bill pending before it. But we cannot assume, what seems to us to be unfair to that august body, that even if we hold that the Bill is unconstitutional, the Parliament will proceed to pass it without removing the defects from which it is shown to suffer. Since the constitutionality of the Bill is a matter which falls within the exclusive domain of the courts, we trust that the Parliament will not fail to take notice of the court’s decision.” (Emphasis supplied)

421. In our considered view, the only reason for which the legislative or the executive wing may not take note of the opinion delivered by the Supreme Court under Article 143 is when the grounds on which a State bill was reserved for the consideration of the President, are not purely legal but also involve certain policy considerations, which may outweigh the issue of constitutionality. In such cases, if the President acts contrary to the advice of this Court and withholds assent to a bill, he must record cogent reasons and materials that justify not granting assent.

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422. A lack of reasons or even insufficiency thereof may do violence to the concept of ‘limited government’ on which the edifice of our Constitution has been built. The whys and wherefores of the President’s actions provide a basis for judicial review and allow the courts to assess the validity of the decision as well as ensure accountability between the three pillars of government which is in consonance with the idea of checks and balances in the constitutional set-up of our country.

423. In this context, we are of the considered view that the expression of intention by the President through a declaration of reasons supporting his actions under Article 201 is of paramount importance and this Court is not inhibited in any manner to make a presumption that the President and by extension, the Central government, may not have acted in a bona fide manner at the time when it exercises its powers of judicial review.

424. We would also like to make a reference to Rule 48 of the Tamil Nadu Government Business Rules, 1978. The said Rule provides that whenever there is legislative proposal for a subject matter falling within the Concurrent List, the concerned administrative department should consult the Ministry of Home Affairs, whenever possible. Similar requirement is laid down for the legislations falling under Articles 31A, 31B and 31C of the Constitution. The rules read as follows: “(2) If a Bill which is proposed to be introduced in the Legislature falls within the concurrent Legislative Field, the administrative department principally concerned shall, whenever possible, consult the Ministry of Home Affairs of the Government of India on the proposed legislation. Consultation with the Government of India shall also be necessary in cases where a Bill may seek to amend a law falling within the concurrent legislative field, even though such law applies only to the State of Tamil Nadu. Such consultation should be made after the stage indicated in clause (1). (3) If a Bill which is proposed to be introduced in the Legislature attracts the provisions of clause (2) of Article 31, clause (1) of Article 31-A or Article 31-C, of the Constitution or it is a Bill on Land Re-forms, the Administrative department principally concerned with the subject matter shall consult the Ministry of Home Affairs

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of the Government of India before the introduction of the Bill (in the Legislature: Provided that the procedure in sub-rule (2) or sub-rule (3) need not be followed when the need for action is so urgent that prior consultation is not possible. In such cases, Ministry of Home Affairs of the Government of India shall be informed as soon as possible.”

425. Thus, as a matter of prudence, the States should enter into pre-legislation consultation with the Central government before introducing legislations on matters pertaining to those provisions of the Constitution where the assent of the President may be required. Likewise, the Central government, should consider the legislative proposals sent by the State governments with due regard and expediency. Such a practice reduces friction between Centre-State relations and also ensures that future roadblocks are overcome in the beginning itself, thereby promoting public welfare.

vii. On Exercise of Article 142.

426. Article 142 of the Constitution empowers this Court, in the exercise of its jurisdiction to, pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

427. A three-Judge Bench of this Court in A.G. Perarivalan (supra) was dealing with the inaction on the part of the Governor of Tamil Nadu in deciding the remission petition of the petitioner therein. Despite the resolution passed by the State government in favour of granting remission to the petitioner, the Governor first kept the matter pending with him for a long duration and thereafter, without taking a decision thereupon, referred the same to the President.

428. The Court, taking into consideration the huge delay caused by inaction on the part of the Governor, and also the adverse impact of such inaction on the liberty of the petitioner therein, exercised its powers under Article 142 of the Constitution and deemed the petitioner to have served his sentence and ordered his release forthwith. The Court observed thus: “Given that his petition under Article 161 remained pending for two-and-a-half years following the recommendation

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of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith.” (Emphasis supplied)

429. The Court, while summarizing its observations, further observed that the reference made by the Governor to the President had no constitutional backing and therefore the reference having been declared erronoeus, and the Council of Ministers having advised in the favour of remission, there was no requirement to remand the matter to the Governor for taking a decision thereupon. The observations read thus: “38.3. The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two-and-a-half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby “the Governor is but a shorthand expression for the State Government” as observed by this Court [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112].”

430. Coming to the facts of the present case, the Governor first withheld the ten bills under question and later despite the said Bills being repassed by the State legislature and presented before him again under the first proviso to Article 200, still reserved them for the consideration of the President. We have elaborated in detail that owing to the clear language in which the first proviso is couched, there would never arise, except in extraordinary situations, any occasion for the Governor to reserve a reconsidered bill for the consideration of the President. The said bills, in the absence of any message given by the Governor under the first proviso, were taken up for reconsideration by the State Assembly and passed in their original form, and presented to the

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Governor for his assent. Thus, undoubtedly, it was not open to the Governor to reserve the bills for the consideration of the President and he ought to have granted assent.

431. Considerable time has elapsed since these ten Bills were originally passed and presented to the Governor for assent. Two out of the ten Bills even date back to 2020. It is important to keep in mind that the tenure of the State legislature is of five years and the representatives are accountable to their electorate as regards the enactment of legislations addressing the issues faced by the electorate. At the end of every five years, the elected representatives have to go back to their electorate and provide a report card, based upon which the people, in whom the ultimate sovereignty rests, cast their votes. Bills, if kept pending for long despite their passage by the State legislature, militate against this very fundamental, essential to the sustenance of a representative democracy based on direct elections.

432. The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides. There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court. In such a situation, it is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by us in this judgment. Article 142 empowers this Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, we deem it absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers. No meaningful purpose would be served by keeping the bills, some of which have already been pending for incredulously long periods, pending for more time. Therefore, we deem the assent to have been granted.

433. Constitutional authorities are creatures of the Constitution and are bound by the limitations prescribed by it. No authority, in exercise of its powers, or to put it precisely, in discharge of its duties, must attempt to breach the constitutional firewall. The office of the Governor is no exception to this supreme command. Whenever there is an attempt by any authority to move beyond the bounds of the Constitution, this

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Court has been entrusted with the responsibility to act as the Sentinel on the qui vive and bring back the authority within the constitutionally permissible limits by exercising judicial review. We are not exercising our power under Article 142 in a casual manner, or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor - first in exhibiting prolonged inaction over the bills; secondly in declaring a simplicter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round - were all in clear violation of the procedure envisaged under the Constitution, that we have decided to declare the deeming of assent to the ten bills, considering it to be our constitutionally bounden duty. In our view, that is the only way to ensure that complete justice is done with the parties without any delay, and without possibility of any further delay due to any inaction on the part of the Governor, or lack of deference on his part to this judgment.

H. CONCLUSION

434. In light of the aforesaid discussion, we answer the questions of law formulated by us as under: (I) In discharge of his functions under Article 200, the Governor has three options to choose from when a bill passed by the State legislature is presented to him – i. First, to assent; ii. Secondly, to withhold assent; or iii. Thirdly, to reserve the bill for the consideration of the President. (II) The first proviso to Article 200 should be read in conjunction with the option of withholding of assent provided in the substantive part of Article 200. It is not an independent course of action and has to be mandatorily initiated by the Governor in cases where the option of withholding of assent is to be exercised. The decision of this Court in State of Punjab (supra) lays down the correct position of law in this regard. (III) The expression “the bill falls through unless the procedure under the first proviso is followed” as used in Valluri Basavaiah

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Chowdhary (supra) signifies that once the Governor declares withholding of assent and returns the bill to the House or Houses, the bill would lapse or fall through unless the House or Houses reconsider the bill in accordance with the suggestions made by the Governor in his message and present it to him after repassing. The expression “unless the procedure under the first proviso is followed” cannot be construed to mean that the Governor exercises discretion in setting the machinery prescribed under the first proviso in motion. Once the Governor exercises the option of withholding assent, he is under an obligation to follow the procedure prescribed in the first proviso “as soon as possible”. (IV) The decision of this Court in State of Punjab (supra) cannot be said to be per incuriam. The observations made in the decision as regards attaching of the first proviso with the option of withholding of assent are supported by the observations made in Valluri Basavaiah Chowdhary (supra). (V) Neither the concept of ‘pocket veto’ nor that of ‘absolute veto’ finds place within the constitutional scheme and mechanism envisaged under Article 200 of the Constitution. The substantive part of Article 200 consciously uses the expression “shall declare” to signify that there is no scope of inaction, and whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein. Further, the expression “as soon as possible” in the first proviso permeates Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them. Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simpliciter withholding of assent, meaning thereby that ‘absolute veto’ is also impermissible under Article 200. (VI) It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency. It is trite to say that Article 200 occupies an important role of giving the bills passed by the State legislature the authority of an Act. Without the procedure envisaged under Article 200, the

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bills remain mere pieces of paper, skeletons without any flesh or lifeblood flowing through their veins, mere documentation of the aspirations of the people without any possibility of bringing them to fruition. (VII) As a general rule, it is not open for the Governor to reserve a bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso. The use of the expression “shall not withhold assent therefrom” appearing in the first proviso places a clear embargo on the Governor and is a clear enunciation of the requirement that the Governor must assent to a bill which is presented to him after complying with the procedure laid down in the first proviso. The only exception to this general rule is when the bill presented in the second round is materially different from the one presented to the Governor in the first instance, as discussed in paragraph 204 of this judgment. In such a scenario, it would be open for the Governor to choose from the three options provided in the substantive part of Article 200. (VIII) In the facts of the present case, the reservation by the Governor of the ten Bills for the consideration of the President in the second round was illegal, erroneous in law and is thus liable to be set aside. As a result, any subsequent action taken upon the said Bills by the President also does not survive and is thus set aside. (IX) The Bills, having been pending with the Governor for an unduly long period of time, and the Governor having acted with clear lack of bona fides in reserving the Bills for the consideration of the President, immediately after the pronouncement of the decision of this Court in State of Punjab (supra), are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered. (X) There is no expressly specified time-limit for the discharge of the functions by the Governor under Article 200 of the Constitution. Despite there being no prescribed time-limit, Article 200 cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State.

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(XI) The use of the expression “as soon as possible” in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent. (XII) The settled position of law is that where no time-limit for the exercise of a power is prescribed, the same must be exercised in a reasonable time period. Guided by the decisions of this Court in A.G. Perarivalan (supra) and Keisham (supra), we find that it is no more res-integra that the courts are well- empowered to prescribe a time-limit for the discharge of any function or exercise of any power which, by its very nature, demands expediency. (XIII) Prescription of a general time-limit by this Court, within which the ordinary exercise of power by the Governor under Article 200 must take place, is not the same thing as amending the text of the Constitution to read in a time-limit which would fundamentally change the procedure and mechanism stipulated by Article 200. Prescription of such time-limits within the scheme of Article 200 is with a view to lay down a determinable judicial standard for ascertaining the reasonable exercise of such power and to curtail any arbitrary inaction. This Court while prescribing a time-limit for the exercise of power, is guided by the inherent expedient nature of the procedure prescribed under Article 200. (XIV) Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the following timelines are being prescribed. Failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts: (i) In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith, subject to a maximum period of one-month; (ii) In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three-months;

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(iii) In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months; (iv) In case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month. (XV) As the general rule, the Governor in exercise of his functions under Article 200 is required to abide by the aid and advice tendered by the Council of Ministers. The only exceptions to this rule can be traced to the second proviso to Article 200 and Article 163(1) of the Constitution. Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion, would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review. (XVI) We declare the view taken in B.K. Pavitra (supra) to be per incuriam to the extent of the following two observations made therein – First, that the Constitution confers discretion upon the Governor insofar as the reservation of bills for the consideration of the President is concerned and; Secondly, that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny. The removal of the expression “in his discretion” from Section 75 of the GoI Act, 1935 when it was being adapted as Article 200 of the Constitution clearly indicates that any discretion which was available to the Governor under the GoI Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution. The decision of B.K. Pavitra (supra) is not in consonance with the observations made by the larger bench decision of this Court in Samsher Singh (supra). The majority opinion in Samsher Singh (supra) in paragraph 28 observed that “Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council

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of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion” At the cost of repetition, we again reiterate “and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers”. The decision in Samsher Singh (supra) illustrated certain provisions of the Constitution which expressly required the Governor to exercise his powers in his discretion. The second proviso to Article 200 was one such illustration. Thus, it is amply clear from the dictum in Samsher Singh (supra) that the seven-Judge Bench, after taking into consideration the scheme of Article 200, observed that the second proviso to Article 200 was the only instance where the Governor had been entrusted with the power to act in his own discretion. Subsequent Constitution Bench decisions in M.P. Special Police (supra) and Nabam Rebia (supra) clarified that besides the instances where the Governor has been expressly conferred with discretionary powers, there may still be certain exceptional circumstances wherein it would be legitimate for him to act in his own discretion as indicated by us in paragraph

300. However, the general rule remains that the Governor acts upon the aid and advice of the State Council of Ministers. Under Article 200 of the Constitution, the Governor does not possess any discretion in the exercise of his functions and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows: (i) Where the bill is of a description as provided under the second proviso to Article 200; (ii) Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law; (iii) Where the bill is of a nature that if allowed to take effect then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril.

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The observations made in B.K. Pavitra (supra) that “a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200” do not take into consideration the decision of Samsher Singh (supra) and is for this reason per incuriam. It failed to consider that Article 200 which had been duly considered by Samsher Singh (supra) was found to contain only one instance where the exercise of discretion was expressly provided, that being the second proviso thereto. Besides this, as already aforestated, it failed to notice the removal of the expression “in his discretion” from Section 75 of the GoI Act, 1935 which ultimately culminated into Article 200. (XVII) Under Article 201, 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 to be a condition precedent to a State legislation becoming enforceable or for the purpose of securing some immunity to 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 President mandatory. As we have also discussed, there may be certain other situations where by peril to fundamental principles of representative democracy, the Governor may, in exercise of his discretion, reserve a bill for the consideration of the President. (XVIII) There is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of his functions under Article

201. The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill. The constitutional scheme does not, in any manner, provide that a constitutional authority can exercise its powers under the Constitution arbitrarily. This necessarily implies that the withholding of assent under Article 201 is to be accompanied by the furnishing of reasons for such withholding. We cannot say for a moment that the President would be allowed to not exercise the proviso to Article 201 and not communicate reasons for the withholding of assent

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to the State legislature, as doing so would make the very inclusion of the proviso in Article 200 redundant. Thus, the proviso to Article 201 could be said to attach with the option of withholding of assent. (XIX) The position of law is settled that even where no time-limit is prescribed for the exercise of any power under a statute, it should be exercised within a reasonable time. The exercise of powers by the President under Article 201 cannot be said to be immune to this general principle of law. Keeping in mind the expedient nature of the provision and having regard to the reports of Sarkaria and Puncchi Commissions, as well as the Memorandum dated 04.02.2016 issued by the Ministry of Home Affairs, we 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 would have to be recorded and conveyed to the concerned State. (XX) Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to this Court in exercise of his powers under Article 143 of the Constitution. (XXI) Judicial review and justiciability are not synonymous concepts. The power of judicial review in a written constitution is implicit. Unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. On the other hand, justiciability relates to a particular field falling within the purview of the power of judicial review. (XXII) The determining factor in deciding whether a power would be subject to judicial review is the subject-matter of such power and not its source. Indra Sawhney (supra) observed

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that the yardstick of subjecting an act or a decision to judicial review is not whether it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or the rights under Part III of the Constitution. The Governor, wherever he acts in his discretion under the Constitution, does so by virtue of his position as the constitutional and formal head of the State. It has been held in a catena of decisions that exercise of any power under the Constitution must conform to the limits set by the Constitution itself. Article 200 is no exception to this general rule. (XXIII) In light of this, the observations made by this Court in Hoechst (supra) that the assent of the President is non-justiciable, cannot be stretched to mean that as a general rule, the exercise of powers by the Governor under Article 200 in his discretion would also be immune from judicial review. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards. (XXIV) We summarise our findings on judicial review of the exercise of power by the Governor under Article 200 and the exercise of power by the President under Article 201 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

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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 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

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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 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

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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. (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

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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.

435. For all the foregoing reasons we have reached the following conclusion: a. The reservation of the ten Bills which are the subject-matter of challenge in the present petition by the Governor for the consideration of the President on 28.11.2023 after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 as explained by us hereinabove is declared to be erroneous in law, non-est and thus, is hereby set-aside. b. As a result of the above, any consequential steps that might have been taken by the President on these ten Bills is equally non-est and is hereby set-aside. c. Having regard to the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent and in view of the scant respect shown by the Governor to the decision of this Court in State of Punjab (supra) and other extraneous considerations that appear to be writ large in the discharge of his functions, we are left with no other option but to exercise our inherent powers under Article 142 of the Constitution for the purpose of declaring these ten Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023.

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436. We are in no way undermining the office of the Governor. All we say is that the Governor must act with due deference to the settled conventions of parliamentary democracy; respecting the will of the people being expressed through the legislature as-well as the elected government responsible to the people. He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes. In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, wisdom and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be impelled keeping in mind the dignity of the high constitutional office that he occupies.

437. The Governor before he assumes office undertakes an oath to discharge his functions to the best of his ability in order to preserve, protect and defend the Constitution and the rule of law, along with avowing to devote himself to the service and well-being of the people of the State. Therefore, it is imperative that all his actions be guided in true allegiance to his oath and that he faithfully executes his functions that he is entrusted with by and under the Constitution. There is a reason why a specific reference is made to the well-being of the people of the State in his oath, there is a reason why he is sworn in to pledge himself to the service of the same people; the Governor as the constitutional head of the State is reposed with the responsibility to accord primacy to the will and welfare of the people of the State and earnestly work in harmony with the State machinery, as his oath not only makes this mandate anything but clear but rather also demands it of the Governor owing to the intimate and delicate nature of the functions that he performs and the potency of the ramifications that could ensue or be unleashed upon the State. Due to this, the Governor must be conscious to not create roadblocks or chokehold the State Legislature in order to thwart and trade the will of the people for political edge. The members of the State Legislature having been elected by the people of the State as an outcome of the democratic expression are better attuned to ensure the wellbeing of the people of the State. Hence, any action contrary to the express choice of the people, in other words, the State legislature would be a renege of his constitutional oath.

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438. Before we part with the matter, we find it apposite to observe that constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers. When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built.

439. We take this opportunity to quote Dr. B.R. Ambedkar’s concluding speech in the Constituent Assembly, which is as relevant today as it was in 1949 – “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot”.

440. It is our duty as the highest constitutional court to recognize such evil and increasingly strengthen our initiative to remove them. In the last, we may say with the utmost responsibility and all the humility at our command that it is only when the constitutional functionaries exercise their powers by and under the Constitution that they show deference to the people of India who have given the Constitution to themselves.

441. The soul of India is its Constitution. Our Republic, the foresight of dynamic visionaries. What a great edifice, they built, ensuring sovereignty with democratic values. The Constitution is our bedrock ensuring our safety and security. It outlines a process that keeps us rooted in values. We read it for reference and for every policy decision. Without it, we would be lost and make many mistakes. It is now seventy-five years old, but we still keep turning to it, why? Because it guarantees our rights and sets benchmarks for our responsibilities. The laws and rules that uplift all people sprout from its pristine womb, welfare of all is its primary concern, but its sanctity and safety should be our prime concern.

442. We would also like to refer to a snippet of history from the days of infancy of the Constitution and the Indian Republic, which has

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been narrated in the “Eminent Parliamentarians Monograph Series on Dr. Rajendra Prasad” published by the Lok Sabha Secretariat in 1990 (pp. 102). In the matter concerning the constitutional role of the President in legislative processes, an issue arose during the deliberations on the Hindu Code Bill, wherein the first President of India, Dr. Rajendra Prasad, expressed reservations and sought to assert his independent authority to withhold assent to the legislation. A reference was made to the first Attorney General for India, M.C. Setalvad, who clarified that the role of the President under the Indian Constitution was analogous to that of the British monarch and he was expected to serve as a constitutional figurehead. The Attorney General opined that the President does not possess the authority to act contrary to the advice of the Council of Ministers. The opinion of the Attorney General was, with respect and magnanimity, accepted by the President and thus the ensuing controversy between the Prime Minister and the President was laid to rest.

443. Such was the commitment shown by the stalwarts to upholding the spirit of the Constitution.

444. We hope and trust that the Governor and the State Government would work in tandem and harmoniously keeping the interests and well-being of the people as their paramount consideration.

445. We direct the Registry to send one copy each of this judgment to all the High Courts and the Principal Secretaries to the Governors of all States.

446. In the result, the present writ petition stands disposed of in the aforesaid terms.

447. Pending application(s), if any, stand disposed of.

Result of the case: Writ Petition disposed of.

ukund P Unny, Hony. Associate Editor (Verified by: Liz Mathew, Sr. Adv.)