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

Held: There are only three courses of action available to the Governor to choose from when a bill is presented to him for assent under Article 200 – The first proviso is not an independent fourth course of action but intrinsically attached to the option of withholding of assent – In other words, the first proviso is clarificatory and only elaborates the procedure to be followed in case the option of withholding of assent is invoked by the Governor – The use of the expression “shall” in the substantive part of Article 200 read with the expression “as soon as possible” used in the first proviso indicates that there is no pocket veto available to the Governor while he is exercising the powers under Article 200 – Inaction on part of the Governor to take a decision when a bill is presented to him under Article 200 is grossly violative of the constitutional scheme of expediency which permeates the provision – The Governor, in exercise of his powers under Article 200, also does not possess any absolute veto – He is mandated to take a decision from among the three options that are provided in the substantive part of the Article 200 – In case of withholding of assent, the Governor is bound to follow the procedure prescribed under the first proviso and assent to the bill if it is ultimately presented to him for assent after being repassed by the State legislature – The Governor may also reserve certain bills for the consideration of the President – However, in no case has the Governor been conferred with the power to veto a bill which is presented to him – He is envisaged as an intermediary stop in the journey of the bill towards becoming an Act – When a bill comes to the Governor, he may forthwith assent to it, or postpone the grant of assent by exercising the option of withholding of assent but only for so long till the bill comes back to him after reconsideration, or he may forward the bill to the President whereupon the procedure prescribed under Article 201 is to be followed – Thus, in none of these cases can the Governor permanently keep a bill with him without according assent to it, nor can he declare a simpliciter withholding of assent thereby killing the bill. [Paras 194-198]

Constitution of India – Article 200 – The Governor cannot reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200: Held: There is no scope for the Governor to reserve a bill for the consideration of the President once it is presented to him for reconsideration after compliance with the procedure laid down in the first proviso – The first proviso to Article 200 is a complete code in itself as regards the procedure which is to be followed once the Governor withholds assent and the rest of the article has no applicability thereafter – In light of the language of Article 200, and also keeping in mind its interpretation by this Court in State of Punjab v. Principal Secretary to the Governor of Punjab (2024) 1 SCC 384, there was no room for the Governor to declare a simpliciter withholding of assent without taking recourse to the first proviso as that virtually amounts to the exercise of absolute veto by the Governor, a power which is conspicuously absent from our constitutional scheme. [Paras 204-211]

Constitution of India – Article 200 – Timelines for the Governor to act under Article 200 – Courts can prescribe time limits for the discharge of certain functions, even in cases where no specific time-limit has been prescribed:

Held: 1. Unlike many countries across the globe wherein a provision for deemed assent upon the expiry of the specified time period has been made, there is no such provision in our Constitution – The only manner in which a temporal imperative has been weaved into the scheme of Article 200 is by the use of the expression “as soon as possible” in the first proviso – The said expression, which also appears in Article 111 of the Constitution, was the subject of some debate in the Constituent Assembly – Governor’s inaction with respect to the bills for an unreasonable and prolonged period of time cannot be held to be permissible within our constitutional scheme. [Paras 217-225]

2. Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors. [2020] 2 SCR 132 discussed in the context of the timeline for the Speaker to decide on the petitions seeking disqualifications under the Schedule X of the Constitution – The view adopted by the Court in Keisham Meghachandra (supra) was that the “reasonable period” for deciding such petitions by the Speaker largely depends on the facts of each case yet, where there are no exceptional circumstances, the Speaker should arrive at a decision within an outer time-limit of three-months reiterated – Ram Chand and Ors. v. Union of India and Ors. (1994) 1 SCC

44 discussed wherein it was held that where for exercise of any power no time-limit has been prescribed, such power has to be exercised within a reasonable period of time – AG Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr. (2023) 8 SCC 257 discussed wherein it was held that the inaction of the Governor would be subject to judicial review and in the absence of any cogent reasons for the delay, it would be open to the courts to issue directions for a time-bound decision on a case-to-case basis – Held, what is discernible from a reading of the decisions discussed above is that despite there being no prescribed time-limit for the Governor to take a decision under Article 200, the provision cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State. [Paras 227, 229, 230, 231]

3. Any time limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers – Those timelines no doubt demand the earnest adherence by the Governor, however, these being nothing more than tools upon which scrutiny by judicial review is to be premised, remain as prescriptions within the realm of judicial review alone and do not transgress into the legislative bounds or amount to alteration of the text or authority of Article 200 of the Constitution. [Para 239]

4. Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the following timelines were prescribed: First, if a bill is either withheld or reserved for the President’s consideration based on the aid and advice of the State Council of Ministers, the Governor is expected to act immediately, and in any case, within a maximum period of one month – Second, if assent is withheld contrary to the advice of the State Council of Ministers, the Governor must return the bill with a message within a maximum of three months – Third, if a bill is reserved for the President’s consideration contrary to such advice, the Governor must do so within a maximum period of three months – Finally, when a bill is presented again after reconsideration as per the first proviso, the Governor is required to grant assent without delay, and in any event, within one month – Failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts. [Paras 250-251] Constitution of India – Article 200 – Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers – B.K. Pavitra v. Union of India (2019) 6 SCC 129 held to be per incuriam:

Held: 1. What flows from a study of the Constituent Assembly debates concerning the appointment of the Governor and the scope of his discretionary powers is that the Governor plays a very crucial role in the political structure of the country – He is the bridge between the governments at the Central and State level, the proverbial buckle which ties the States with the Centre. [Para 289]

2. The second proviso to Article 200 is an instance under the Constitution where the Governor has been conferred with the power to act in his discretion and even against the advice of the Council of Ministers – However, the logical sequitur to this is that under Article 200, there is no scope for the Governor acting in his discretion other than the second proviso. [Para 295]

3. This Court in B.K. Pavitra v. Union of India (2019) 6 SCC 129 took the view that the Constitution has entrusted the Governor with the discretion of reserving a bill, presented to him for assent, for the consideration of the President – It also held that the exercise of the power of reservation of bills for the consideration of the President could be done by the Governor contrary to the aid and advice tendered by the Council of Ministers – The Court observed that such an important responsibility having been conferred upon a constitutional functionary, its discharge was expected to be undertaken upon careful reflection and with statesmanship, and in a manner that does not thwart democratic federalism – On the nature of bills which may be reserved for the consideration of the President, the Court held that it was impossible to lay down with certainty all the situations wherein such a reference may be warranted – This view held per incuriam since the removal of the expression “in his discretion” from Section 75 of the Government of India 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 Government of India Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution – Held, the views expressed by the members of the Constituent Assembly, which are recorded in the debates that took place on Article 175 of the Draft Constitution, also indicate the same – The same is also in alignment with the fundamental tenets of responsible government in a parliamentary democracy – The only exception to the general principle of the Governor adhering to the aid and advice tendered by the Council of Ministers can be traced to Article 163(1) and the second proviso to Article 200 – Held, B.K Pavitra (supra) failed to take into consideration the larger Bench decisions in Samsher Singh v. State of Punjab (1974) 2 SCC 831 and M.P. Special Police Establishment v. State of Madhya Pradesh & Ors. (2004) 8 SCC

788. [Paras 303-306]

4. While construing the role of the Governor in the context of Article 200, it must be kept in mind that such a role has been envisaged not to supplant the opinion of the Council of Ministers, but to infuse it with his wisdom – However, once the bill is passed by the State legislature, and presented to the Governor for assent, he must act on the aid and advice of the Council of Ministers as a general rule and only in exceptional situations should he reserve it for the consideration of the President. [Paras 307-308]

5. The option of withholding of assent, as believed by the framers, would be invoked in very rare circumstances where the Council of Ministers discover some error in the legislation or desire to incorporate certain changes to it so as to meet with the popular opinion outside the House – The framers did not expect that the Governor would, as a matter of routine, declare the withholding of assent to bills casually – The deletion of the expression “in his discretion” from the first proviso is also an unmistakable indication of the intent of the framers in vesting no discretion in the Governor as regards the withholding of assent and returning of the bill along with suggestions for the introduction of amendments. [Paras 310, 315, 316]

6. The Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers – The only exceptions to this general rule are: (a) Where the bill is of a description as provided under the second proviso to Article 200,

(b) Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision, and (c) Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril as described in M.P. Special Police (supra). [Paras 318-319]

Constitution of India – Article 200 and Article 201– Actions of the Governor and the President – Amenable to judicial review: Held: 1. The Governor, by choosing to act in his discretion under Article 200, has the power to thwart the entire legislative machinery of the State by reserving a bill for the consideration of the President – He also has the power to significantly delay the grant of assent to a bill by withholding assent and returning the same to the State legislature under the first proviso to Article 200 of the Constitution – The discharge of functions by the President or the Governor as constitutional and formal heads is undoubtedly subject to judicial review by virtue of it being an exercise of their constitutional powers – Decision taken by the Governor under Article

200 would not be shielded from scrutiny of the courts by virtue of the immunity accorded under Article 361 of the Constitution – Held, the power of judicial review of the courts would be available in respect of exercise of all powers by any authority under the Constitution unless expressly excluded. [Paras 333, 335, 338]

2. 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. [Para 358]

3. 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 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 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 Pvt. Ltd. and Anr. v. National Textile Corporation (Maharashtra North) Ltd. and Ors. reported in (2002) 8 SCC 182 – 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 & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly reported in (2016) 8 SCC 1 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 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. [Para 367]

4. 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 therefore, 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 mala fide 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 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. [Para 367]

5. Summary of Court’s findings on the judicial review of the exercise of power by the President under Article 201 in withholding assent to a bill: (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, mala fides, etc. and (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 mala fides and arbitrariness, etc. [Para 368] Constitution of India – Article 200 – Timelines for the President under Article 201 to decide on the Bill reserved for his consideration by the Governor under Article 200: Held: 1. The Court deems it appropriate to adopt the timeline prescribed by the Ministry of Home Affairs in the Office Memorandum dated 04.02.2016 issued by the Ministry of Home, Government of India, 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 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. [Paras 385-391]

2. 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. [Para 401]

3. 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. [Para 404]

4. 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 does not provide anywhere that withholding of assent can be done simpliciter. [Para 405]

Constitution of India – Article 200 – Governor cannot reserve a reconsidered bill for consideration of the President – Article

142 exercised to grant deemed assent:

Held: 1. 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 – 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 Governor for his assent – Thus, it was not open to the Governor to reserve the bills for the consideration of the President and he ought to have granted assent – 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. [Paras 430-431]

2. 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 bona fides – 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 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 the Court in this judgment – Article 142 empowers the 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, it is deemed 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 – The ten Bills deemed to have assented on the date when they presented to the Governor after being reconsidered by the State legislature. [Para 432]