The Tamil Nadu Portent

BETWEEN EARLY 2020 and October 2023, the Tamil Nadu Assembly passed a series of Bills that were then sent to Governor RN Ravi. There were 12 Bills and he withheld his assent from 10 and reserved two for the president’s consid­eration. The Assembly, in a special session on November 18, 2023, passed them once again and sent them back to the governor. He then referred them once again to the president. A month later, the state government approached the Supreme Court seeking relief and clarification on the powers of the governor in this respect.

On April 8, the Supreme Court delivered a far-reaching judg­ment that not only severely curtailed the powers of the governor on giving/not giving assent to Bills passed by state legislatures but also, controversially, curtailed the powers of the president in these matters. The court went as far as to say that the president “ought” to consult the Supreme Court on the issue of Bills re­served for his/her consideration. Nowhere does the Constitution require such consultation on the part of the president.

There have been a number of judgments on powers of the governor over decades. But the judgment delivered on April 8 reduced the discretionary power of the governor under Article 200—the article that deals with giving assent to Bills passed by the state legislature—to the point of nullity. The text of the Constitution, in contrast, clearly spells out that the governor can withhold assent to Bills or refer them to the president.

To an extent, the court is right: once the legislature has passed the Bills again after the president has considered them, there ought to be no reason to return them again to the president. But beyond that the judgment raises questions about the governor’s powers, powers that are necessary given the political circum­stances that prevail in many states. The court explicitly ruled this out when it stated: “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.”

One can view political grounds for withholding assent in negative terms as the court has done, but the reality of gover­nance in India is that politics plays a role in a way that cannot be neatly peeled away into pure grounds that are “constitutional” and those classed as “political expediency”.

If, even in theory, one can say that there are severe limitations to the discretion of a governor, the real howlers in the judgment relate to its conclusions about the power of the president to with­hold assent to Bills passed by a state legislature. In case a Bill is reserved for the president, Article 201 provides the machinery for the president to take a decision. The article prescribes no time limits for the president to take a decision in such cases. It also gives the president a veto against a Bill reserved for him. The wording is clear: “The President shall declare either that he assents to the Bill or that he withholds assent therefrom…” The proviso to the article also gives the president the option to ask the governor to return the Bill to the state legislature for reconsideration.

The court has, effectively, reinterpreted this very important provision of the Constitution.

For starters, it prescribes a time limit of three months for the president to take a decision in case of a reserved Bill. The court’s reasoning is worth noting. It said, “Keeping in mind the reports of the Sarkaria and Punchhi 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 with a period of three months from the date on which such refer­ence is received.” The court’s reasoning flies in the face of what Article 201 clearly states: there is no time limit prescribed there. This article should be compared to Article 200, the machinery for the governor’s assent to a Bill. Article 200 states: “Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill…” for reconsideration, and so on. Much was made of the words “as soon as possible” when it came to understanding the issue of the time limit for a governor to act. In this case, Article 200 itself was relied on to arrive at an interpreta­tion. But in the absence of any such feature in Article 201 (Bills reserved for the president) that would enable interpretation, “creative” use has been made of the reports of commissions that inquired into Centre-state relations and an office memorandum.

The court also propounded a novel idea—that in case a Bill is reserved for the president’s consideration, then the president “ought” to consult the Supreme Court in the matter. It said, “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.” Article 143 enables the presi­dent to consult the Supreme Court on a question of law that is of public importance. The Article says the president “may” refer the question to the court; now the court says the president “ought” to do so.

Matters do not stop there. In its order, the court went on to say: “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.” The writ of mandamus is a judicial order to a government official to perform a specific duty. The writ, a part of prerogative writs, is usually used to secure fundamental rights of citizens.

It is unheard of in the annals of inde­pendent India that a writ can be issued against a serving president to secure assent for a Bill passed by a state legislature. This is a clear example of judicial overreach to the point where it turns into something unacceptable. The president is the appointing authority of judges of the Supreme Court. The president is also the First Citizen. The president is not above the law but at the same time it is unusual for a court to subject him/her to writ jurisdiction. In interpreting the president’s power under Article 201, the court has gone overboard.

SINCE INDEPENDENCE, THE role of governors has often been questioned. In states that were clearly seces­sionist at one time, he was referred to as the “agent of the Centre”. That appellation continues to be used by a handful of political parties in states where secessionist sentiments often bubble up every now and then. It is also a fact that at times the office of the governor was misused to unjustly dismiss state governments for political reasons. In time, the Supreme Court evolved norms for the use of this power (Article 356) by gover­nors. But as is its wont, the apex court applied a very narrow interpretive definition as to what constituted “breakdown of constitutional machinery” in a state. After SR Bommai vs The Union of India (1994), it is unusual to find a state government being dismissed except on the ground that it has lost the confi­dence of the Assembly. But in doing so, the court has moved the pendulum to the other extreme where “breakdown of constitu­tional machinery” excludes almost every contingency barring the absence of confidence of the legislature.

Some hypothetical, but potentially real, exigencies can be imagined. If a state legislature passes a Bill that, in the opinion of the governor, can potentially damage the national fabric, what is he or she to do? Such situations are not in the realm of fantasy as events in one particular state clearly show. Evaluating such situations is by their nature subjective and cannot be put in the black-and-white of a constitutional text. Before the decision of the apex court on April 8, the governor could have simply exer­cised his veto or, if in his wisdom this merited the president’s consideration, reserved the Bill for the president. The Supreme Court has now whittled the governor’s powers to such an extent that a veto is a mere word in the text of the Constitution. Even the president’s ability to veto the Bill is limited and has been made subject to the writ of mandamus.

The office of the governor is a political office even if it is a con­stitutional position. To think otherwise is a travesty. In that role, the governor often has to take decisions that may not be palatable to the ruling party in a state. There are many cases where gover­nors have averted disaster by acting in a manner that would be considered unconstitutional by a contemporary yardstick.

The one set of reasons considered fit to reserve Bills for the president’s consideration include “peril to democracy or demo­cratic principles”. These have been outlined in earlier cases as well. These are, undoubtedly, important reasons to refer Bills to the president. But there can be other, equally important, grounds to dispatch such Bills to the First Citizen. It is not necessary that everything that can happen in future be presaged. Discretionary powers in the hands of the governor, and above all, the president are meant for those exigencies. The Supreme Court should have considered the possibility of those situations as well.

Centre-StateGovernor RN RavIndian ConstitutionMK Stalinpower distributionSupreme CourtTamil Nadu