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Governor’s Subverting Federalism by Withholding Bills
Context:
The Supreme Court will examine whether Governors, by indefinitely delaying crucial Bills and then referring them to the President who acts on the advice of the Centre, are enabling Union interference in State legislative matters and undermining federalism.
More in News:
- The State of Kerala filed a petition highlighting that its Governor kept Bills pending for two years before eventually reserving seven of them for the President’s consideration.
- Earlier petitions filed by Tamil Nadu, Punjab, and Telangana in the Supreme Court also addressed issues with their Governors delaying Bills sent for assent.
- Chief Justice Chandrachud said the court would look into the matter when Governors can refer Bills to the President.
Constitutional Provisions of Governor vis a vis Bills:
- Article 163(2):Discretionary Power of the Governor
- If there is any doubt about whether a matter requires the Governor to act on his own discretion according to the Constitution,
- the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
- Article 200:Assent to Bills
- When a Bill is passed by a State’s Legislative Assembly (or both Houses in states with a Legislative Council), it is presented to the Governor,
The Governor can:
- Assent to the Bill,
- Withhold assent(Absolute Veto), or
- Reserve the Bill for the President’s consideration.
- The Governor must reserve any Bill for the President if it potentially undermines the High Court’s powers.
- The Governor may return a non-Money Bill with recommendations for reconsideration(Suspensive Veto).
- If the Bill is returned, reconsidered, and passed again, the Governor must assent.
Reasons for Empowering the Governor to grant assent to Bills:
The Governor’s power to grant assent to Bills aims to maintain a delicate balance through:
- Check and Balance: The Governor reviews and approves state laws to ensure they do not conflict with Union laws.
- Avoiding Repugnancy: The role prevents state laws from conflicting with national legislation, maintaining legal harmony.
- Safety Valve: It provides a second review of hasty legislation, acting as a safeguard against rushed decisions by the State Government and Legislature.
Issues with Governor Withholding Assent:
- No time limit for giving assent to the Bills passed by the state legislature.
- Alleged Partisan behaviour by the Governor vis a vis opposition ruled state as he is a central government nominee, thus undermining Federalism .
- Denying the people the “benefits of the welfare legislation” .
- Lack of Accountability: As the governor withholds the bill without assigning any reason.
Supreme Court cases
Purushothaman Nambudiri vs State of Kerala (1962):The Supreme Court examined the constitutional powers and discretion of the Governor, especially when assenting to or reserving Bills for the President’s consideration.
- The case emphasised the need to maintain the balance of power between the state executive, legislature, and the Governor,
- ensuring respect for the federal structure of the Constitution and preventing undue interference by the Governor in the state’s legislative domain.
Shamsher Singh vs State of Punjab (1974): The Court held that the phrase “in his discretion” applies only to specific Articles of the Constitution that assign special responsibilities to the Governor and does not extend to Article 200.
In the Nabam Rebia & Bamang Felix case (2016), the Supreme Court clarified that article 163(2) needs to comply with the “aid and advice” of the council of ministers and is under the scope of judicial review.
- The Governor’s actions disrupt the constitutional balance among the three state organs, making the elected executive and the State Legislature’s efforts to draft and pass Bills ineffective and meaningless.
Way forward:
- Sarkaria Commission(1987):
- The Governor should act according to the ministers’ advice under Article 200, except in cases of clear unconstitutionality.
- The Governor should be politically neutral, with no recent political activity or ties to the ruling party.
- Punchhi Commission(2007):The Governor should decide on a Bill within six months.
- 2nd Administrative Reforms Commission(2005):Recommended that the Inter-State Council establish guidelines for the Governor’s discretionary powers.
- National Commission to Review the Working of the Constitution (NCRWC)(2000)headed by Justice M.N. Venkatachaliah. :
- Proposed a four-month deadline for the Governor’s decision on Bills.
- Suggested eliminating the Governor’s power to withhold assent, except as required by the Constitution.
- The Venkatachaliah Commission advised that the Governor’s power to withhold assent should be used only in exceptional cases, based on clear constitutional grounds, and with greater transparency and accountability.
- The Rajamannar Committee recommended that the Governor’s power to withhold assent should be used sparingly, based on clear constitutional grounds, with established guidelines and accountability.
