Governor cannot veto bills passed by legislative assembly: SC

Satya Prakash

New Delhi, November 23

Maintaining that the Governor is intended to be a constitutional statesman guiding the state government on matters of constitutional concern, the Supreme Court has ruled that he can’t veto a Bill enacted by the legislative assembly.

“The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures,” a Bench led by CJI DY Chandrachud said in its November 10 verdict on Punjab Government’s petition against Governor Banwarilal Purohit sitting over Bills passed by the state assembly. The verdict was released this evening.

Declaring the Punjab Legislative Assembly’s session held in June as constitutionally valid, the Supreme Court had asked Governor Purohit to take decisions on the four bills—passed during the extended Budget Session—that had remained pending with him.

The verdict is likely to have bearing on petitions filed by the governments of Tamil Nadu and Kerala which have moved the top court against their respective governor sitting over bills passed by the two state assemblies.

Interpreting Article 200 of the Constitution, the Bench said, “The Governor has three options available when a Bill which has been passed by the State Legislature is presented for assent. The Governor “shall declare” (i) either that he assents to the Bill; or (ii) that he withholds assents therefrom; or (iii) that he reserves the Bill for the consideration of the President.”

However, it said, “The concluding phrase “shall not withhold assent therefrom” is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor shall not withhold assent.

“The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the state legislature,” the Bench clarified.

“This is compatible with the fundamental tenet of a Parliamentary form of government where the power to enact legislation is entrusted to the elected representatives of the people. The Governor, as a guiding statesman, may recommend reconsideration of the entirety of the Bill or any part thereof and even indicate the desirability of introducing amendments.

“However, the ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone. That the message of the Governor does not bind the legislature is evident from the use of the expression “if the Bill is passed again …with or without amendments,” the top court said.

“The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant.

“It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage,” the Bench said.

The Bench said, “the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse.

“Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso,” it added.

“In a Parliamentary form of democracy real power vests in the elected representatives of the people. The governments, both in the States and at the Centre consist of members of the State Legislature, and, as the case may be, Parliament. Members of the government in a Cabinet form of government are accountable to and subject to scrutiny by the legislature,” it said.

“The Governor as an appointee of the President is the titular head of State. The fundamental principle of constitutional law which has been consistently followed since the Constitution was adopted is that the Governor acts on the ‘aid and advise’ of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor. This principle cements the bedrock of the constitutional foundation that the power to take decisions affecting the governance of the State or as the case may be of the nation essentially lies with the elected arm of the government,” the Bench said.