Institute of Legal and Management Studies

If Governors can simply withhold their assent to Bills without returning them to the Legislative Assembly, would it not place the Governments elected by the majority at the whims and fancies of the Governor, asked the Supreme Court today during the hearing of the Presidential Reference on questions relating to the grant of assent to Bills.

A bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing the arguments of Solicitor General of India.

SG Tushar Mehta submitted that, as per Article 200 of the Constitution, the Governor has four options: grant assent, withhold assent, reserve the Bill for the President's consideration, or return the Bill to the Assembly. SG argued that if the Governor says that he was withholding the assent, then it means that the "Bill dies." The Governor need not return the Bill to the Assembly for reconsideration if assent was withheld, according to the SG.

CJI Gavai then asked if such a power is recognised, would it not enable the Governor to withhold the Bill indefinitely? "According to you, withholding means the Bill falls through? But then, if he does not exercise the option of resending for reconsideration, he will withhold it for time immemorial," CJI said.

SG said that the Constitution itself has given that discretion to the Governor.

"Are we then not 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," CJI observed.

The SG argued that the 3-judge bench's judgment in the Punjab Governor case, which held that the Governor must return the Bill to the assembly if he was withholding assent, was contrary to precedents of 5-judge bench judgments. In the Punjab Governor case, the Court held that the Governor's power to withhold assent as per Article 200 must be read with the first proviso to Article 200, which speaks of returning the Bill to the Assembly. The SG argued that the interpretation in the Punjab Governor case was "erroneous". The two-judge bench in the Tamil Nadu Governor case followed the Punjab Governor case, which is in conflict with various larger bench decisions exactly on the same point, he added.

When the bench asked if the Constituent Assembly debated the meaning of the word 'withhold', SG Mehta replied in the negative. Justice Narasimha pointed out that the term 'withhold' is used twice in Article 200, first in the main provision and second in the proviso.

The Solicitor maintained that 'withholding' was an independent option available to the Governor. To illustrate, the SG said that if a State legislature passed glaringly egregious laws such as removing reservations altogether, or barring the entry of persons from other states, or mandating that its people must speak only one particular language, giving absolute immunity to the entire Cabinet from prosecutions, or barring central agencies from exercising their powers in the State, or undermining the powers of the President or the PM, etc, the Governor would be justified in withholding the Bill.

SG Tushar Mehta said that the power of withholding is to be exercised by the Governor rarely and sparingly to deal with such extraordinary situations.

The SG submitted that the Governor is not just a "postman" to mechanically approve the Bills, and that he was representing the Union of India and the President. "A person who is not directly elected is not a lesser person," the SG said, asserting that the Governor was a person upon whom the Constitution has reposed trust to discharge Constitutional functions.

The hearing is progressing.

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