Supreme Court flags pendency of bills, says elected govts 'will be at whims and fancies of governors'

The Supreme Court earlier held that the governor must act within three months if withholding assent or reserving a Bill, and within one month when a Bill is re-enacted.

While hearing the Presidential reference case, the Supreme Court asked the Centre whether an elected government can be placed at “the whims and fancies of the Governor” by vesting him/her with the power to withhold a Bill forever.

According to reports, the top court passed the remark after the Solicitor General Tushar Mehta, appearing for the Centre, argued that the governor under Article 200 of the Constitution can withhold assent to a Bill, making it “fall through” with no option to send it back to the legislature.

“But then would we not be giving total powers to the Governor to sit in appeals? … The government elected by majority will be at the whims and fancies of the Governor,” Chief Justice of India B R Gavai asked Mehta.

The bench, also comprised Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar.

Article 200 entails options for the governor to either grant assent to a bill passed by the state legislature, “withhold” assent, return it for reconsideration, or reserve it for the President’s approval.  Mehta said the Governor has the option to grant assent to a Bill referred by the state legislature, withhold assent, refer it to the President in case of repugnancy with any Central law or return it to the state legislature for reconsideration.

Mehta said withholding is not a temporary act, and that 5-judge and 7-judge benches of the Supreme Court have interpreted it to mean that the Bill “falls through”.

“Suppose a border state passes a Bill dealing with our external affairs, that we will permit a particular country’s people to enter or not, then he cannot assent, he cannot refer it to President because it’s not a repugnancy issue, and he cannot resend it to the House because if it is again passed, he cannot say no to it. So he will have to withhold," he said.

He said the power “has to be used rarely, sparingly, but that is the way the situation is”.

The CJI then asked, “If he doesn’t exercise the option of resending the Bill for reconsideration, he can withhold it for time immemorial?”

“It dies,” Mehta said, reiterating that “it (the power) is to be used rarely but power is conferred.” He said, “The very language in which Article 200 is couched, it gives him options.”

CJI Gavai said the courts have some experience as to how "some honourable Governors have exercised their discretion leading to so many litigations, but we are not going by that".

However, Mehta said that the  Indian democracy is matured . "There may be aberrations on an individual level. But by and large, the democracy under this very Constitution has worked very effectively. And I personally experienced it during Covid times, how the Centre-state federal balance envisaged was on display. So it would be really hazardous to assess on the basis of some aberrations," he said.

Justice Narasimha said the options must remain open-ended so that the political process has the chance to resolve the deadlock over a Bill.

On April 8, the top court, while hearing the case of Tamil Nadu vs Governor R N Ravi, held that the governor must act within three months if withholding assent or reserving a Bill, and within one month when a Bill is re-enacted. In May, President Droupadi Murmu exercised powers under Article 143(1) to know from the top court whether judicial orders could impose timelines for the exercise of discretion by the president while dealing with bills passed by state assemblies.