Pending Bills, the issue of gubernatorial inaction

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CategoryPolity

Last Updated26/04/2023

The Tamil Nadu Governor was again in the news recently when the Tamil Nadu Assembly passed a resolution urging the President of India, among other things, to fix a timeline for assent to be given to Bills passed by the Assembly.

The Governor underlined that if the Bill passed by the legislature transgresses constitutional limits, then it is the Governor’s responsibility not to give assent. Several Bills passed by the Assembly have been pending as the Governor has not made any decision.

Article 355 of the Constitution says that it shall be the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
The Constitution requires the Governor to act when a Bill is passed by the Assembly and present it to him as per the options given in Article 200.
Article 200 provides options to the Governor when a Bill is presented to him after being passed by the legislature. These options are: to give assent; to withhold assent; to send it back to the Assembly to reconsider it; or to send the Bill to the President for his consideration.
If he does not act in accordance with the Constitution and sits on the Bills indefinitely.
In such a situation, the government of the State has a constitutional duty to invoke Article 355 and inform the President about it, and request her to give suitable instructions to the Governor to ensure that the government is carried on in accordance with the Constitution.

Under Article 154 of the Constitution, the Governor can exercise his executive powers only on the advice of the Council of Ministers.
- So, there is a view that the Governor can withhold assent to a Bill only on ministerial advice.
But there is a confusion as to why the Council of Ministers should advise the Governor to withhold assent after the Bill has been passed by the Assembly. If the government did not want to proceed with the Bill, it could withdraw it at any stage of consideration by the Assembly.
Similarly, if the government wanted to repeal it after it becomes an Act, it could have it repealed by the House.
A Bill is brought before the Assembly when there is some urgency about a legislation. It may be a part of the policy of the elected government which is responsible to the people.
Under the constitutional scheme, the Governor is only a constitutional head and has no real powers. Then such a Governor veto a legislative measure brought by the government is meaningless.
Withholding assent means the death of that Bill. Thus, the Governor can with one stroke of the pen completely negate the will of the legislature, and thereby negate the will of the people.
The Constitution cannot be assumed to be permitting the Governor to do that. Only the judiciary can set it right by way of a clear enunciation of the law.

D.D. Basu, quoting judgments of the Supreme Court, says that it is not justiciable as evidenced by—
- Purushothaman Namboothiri case (1962): The issue that was decided in this case was that a Bill which is pending with the Governor does not lapse on the dissolution of the Assembly. But this judgement does not deal with the justiciability of the process of assent.
- Hoechst Pharmaceuticals Ltd. Case (1983): Court had held that a Governor reserves a Bill for the consideration of the President in exercise of his discretion.
- The Court cannot go into the question of whether it was necessary for the Governor to reserve the Bill for the consideration of the President; thus, this case too does not deal with the justiciability of assent.

The framers of the Constitution would never have imagined that Governors would sit on Bills indefinitely without exercising any of the options given in Article 200.
This is a new development which needs new solutions within the framework of the Constitution.
So, it falls to the Supreme Court to fix a reasonable time frame for Governors to take a decision on a Bill passed by the Assembly in the larger interest of federalism in the country.