Governor And His Dilemma Of Assent

The office of Governor has been in the midst of constitutional controversies and has given rise to the question of its raison d'etre. The governance of a state draws its strength from an elected government. The elected government indulges in policy making through legislative function. Any legislative function, for it to be enacted, requires the imprimatur of the Governor, after whose assent the Bill becomes law. Article 200 of the Constitution of India delineates the various options that a Governor has when a Bill is presented to it.

The Governor can either grant his assent, withhold assent or reserve the Bill for the consideration of the President of India. Apart from the three options, the Governor can also return the Bill to the House for reconsideration. However, if the assembly chooses to re-send the Bill to the Governor even without reconsidering it, the Governor has no option but to give his assent to it. Looking at the overall scheme of the Constitution, which is premised on governance through democratically elected representatives, role of a Governor is not conceptualised to frustrate the legislative function. With a powerful executive in the centre at present, Governors in states ruled by the opposition, have been behaving in a highly partisan manner which does not behove the high office that they occupy.

The Supreme Court of India's judgment in State of Punjab vs. Principal Secretary to the Governor of Punjab & Anr. (2023) has settled the law on what a Governor can do when a Bill is sent to him.

The Court said that a Governor is a symbolic head and he cannot withhold action on Bills passed by the State Legislature. "In a Parliamentary form of democracy real power vests in the elected representatives of the people," the Court said.

The Court highlighted the fundamental principle of constitutional law which has been consistently followed since the Constitution was adopted, which 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.

The Court held that, "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 Governor is intended to be a constitutional statesman, guiding the government on matters of constitutional concern."

The Court said that 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.

The Court reasoned that, "The term “shall declare” implies that the Governor is required to declare the exercise of his powers."

The first proviso to Article 200 stipulates that the Governor may “as soon as possible” return the Bill. The proviso to Article 200 envisages that, as soon as possible, after the presentation to the Governor of the Bill for assent he may return a Bill, which is not a Money Bill, together with a message requesting that the House or Houses would reconsider the Bill or any specific provisions of the Bill and in particular consider the desirability of introducing such amendments which he may recommend. When a Bill is returned by the Governor, the legislature of the State is duty bound to reconsider the Bill. After the Bill is again passed by the legislature either with or without amendment and is presented to the Governor for assent, the Governor shall not withhold assent therefrom.

"Apart from the first proviso in the above terms, the second proviso envisages a situation where “the Governor shall not assent to, but shall reserve for the consideration of the President” those Bills that “so derogate from the powers of the High Court as to endanger the position” which the High Court is designed to fill by the Constitution," the Apex Court said.

The Court said that if the Governor decided to withhold assent under the substantive part of Article 200, the logical course of action would be to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration.

"In other words, 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," the Court affirmed.

With the issue of assent by the Governor having been considerably settled by the Supreme Court, it is expected that the occupants of the high office of Governor will maintain the dignity and constitutional propriety.