In a significant verdict, the Supreme Court on Thursday ruled that courts cannot fix timelines for Governors and the President to give assent to Bills passed by state legislatures. A Constitution Bench headed by Chief Justice of India BR Gavai further said the judiciary also cannot grant deemed assent to the Bills while adding that Governors cannot indefinitely withhold assent to Bills cleared by state Assemblies.
Responding to the Presidential reference made in the case of the Tamil Nadu Bills verdict, the Supreme Court said “deemed assent”, invoked earlier this year in the Tamil Nadu case, is “antithetical to the spirit of the Constitution” and goes against the principle of separation of powers.
The bench further observed that imposing a timeline would be strictly contrary to the constitutional “elasticity” deliberately built into the scheme of Articles 200 and 201. Any judicial action to lay down time limits would “supplant the authority of another constitutional organ”, the bench stated.
“The imposition of a timeline would be strictly contrary to this elasticity that the Constitution so carefully preserves. [T]he concept of deemed assent is a takeover of the powers of another authority and Article 142 cannot be used for the same,” said the Bench, also comprising Justices Surya Kant, Vikram Nath, PS Narasimha, and Atul S Chandurkar.
As per IANS, the Supreme Court said while the discharge of the Governor’s functions under Article 200 is not justiciable, constitutional courts may issue “a limited mandamus for the Governor to act under Article 200 within a reasonable time without getting into the merits of discretion.”
‘Assent cannot be withheld indefinitely’
The court further said Governors cannot indefinitely withhold assent to Bills cleared by state Assemblies. The Bench said there are three options available with state Governors under the Constitution of India: either give assent, return the Bill to the state Assembly with comments, or refer it to the President of India.
Referring to the Presidential reference made under Article 143, the court observed that while the Governor enjoys limited discretion under Article 200, that discretion can be exercised only with regard to choices enumerated in the Constitution.
“We hold that the Governor does not have the power to simpliciter withhold,” the five-judge Bench said.
“The three clear options he (Governor) has are to either grant assent, return the Bill to the legislature with comments, or refer it to the President. He has discretion in choosing any of these three options,” the court said.
The bench added that the Governor cannot exercise the discretion vested in him to “to hold Bills in perpetuity”.
‘Elected govt in driver’s seat’
The Supreme Court Bench further observed that, as per the Constitution, it is the elected government that is “in the driver’s seat”.
“It is the elected government, the Cabinet, that should be in the driver’s seat and that there cannot be two executive power centres,” the apex court said, while setting aside the Centre’s arguments that Article 200 confers an unrestricted discretion on the Governor.
Further pointing out that the Council of Ministers may not advise the Governor to return a Bill or reserve it for the President, the Supreme Court said it would be “unfathomable to hold that the Governor is not empowered with discretion under Article 200”.
It added that the President “will be unable to exercise this option unless the Governor reserves the Bill for his assent”.
The SC ruling came in response to the Presidential reference that had sought clarity on timelines for gubernatorial and presidential assent. The clarification was sought after a two-judge SC Bench in the Tamil Nadu Bills case ruled Governor RN Ravi’s prolonged inaction on 10 Bills as “illegal and arbitrary”. The bench also set a three-month deadline for Presidential and gubernatorial approval of Bills passed by the legislature for a second time.
The Constitution Bench had, in July, issued notices to all states in the matter titled “In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India”.