The State Of Tamil Nadu vs The Governor Of Tamilnadu

2025 INSC 481 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 1239 OF 2023

THE STATE OF TAMIL NADU …PETITIONER(S)

VERSUS

THE GOVERNOR OF TAMILNADU & ANR. …RESPONDENT(S)

JUDGMENT

Signature Not Verified Digitally signed by VISHAL ANAND Date: 2025.04.11 22:52:49 IST Reason: J.B. PARDIWALA, J.

For the convenience of the exposition, this judgment is divided in the following

parts:

INDEX A. FACTUAL MATRIX ................................................................................... 5

i. Factual background with respect to assent to bills. ..................................... 5

ii. Factual background with respect to accord of sanction for investigation into cases of corruption against public servants. .............................................. 17

iii. Factual background with respect to the files pertaining to premature release of prisoners. ............................................................................................... 19

iv. Factual background with respect to the appointments to the Tamil Nadu Public Service Commission (TNPSC). ..................................................... 20

v. Factual background with respect to dismissal of ministers and allocation of ministries. .................................................................................................. 22

B. SUBMISSIONS OF THE PARTIES ........................................................ 25

i. Submissions on behalf of the Petitioner .................................................... 25

ii. Submissions on behalf of the Respondents ............................................... 54

C. ISSUES FOR CONSIDERATION ............................................................ 61

D. ASSENT TO BILLS – HISTORICAL BACKGROUND ....................... 65

i. Concept of assent to bills as envisaged by certain historical documents drafted during the freedom struggle. ......................................................... 79

ii. Debates of the Constituent Assembly on Article 200 of the Constitution 91

E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS POST THE COMMENCEMENT OF THE CONSTITUTION. ....................... 99

W.P. (C) No. 1239 of 2023 Page 1 of 414 i. First Administrative Reforms Commission, 1966................................... 100

ii. Rajamannar Commission, 1971............................................................... 102

iii. Sarkaria Commission............................................................................... 105

iv. Punchhi Commission ............................................................................... 121

F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS .... 128

G. ANALYSIS ................................................................................................ 145

i. What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution? ....................................... 145

ii. Whether the Governor can reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance? .................................................................................................. 168

iii. Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution? .............................................................. 174

iv. Whether the Governor in the exercise of his powers under Article 200 can only act in accordance with the aid and advice tendered to him by the State Council of Ministers? .............................................................................. 213

a. The Office of the Governor ............................................................... 216

b. Constituent Assembly Debates on the mode of Selection of the Governor............................................................................................ 218

c. Constituent Assembly Debates on the Exercise of Discretion by the Governor............................................................................................ 227

d. The decision of this Court in B.K. Pavitra (supra) is per incuriam . 263

W.P. (C) No. 1239 of 2023 Page 2 of 414 v. Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 could be said to be subject to judicial review? If yes, what are the parameters for such judicial review? ....................... 280

vi. What is the manner in which the President under Article 201 of the Constitution is required to act once a Bill has been reserved for his consideration by the Governor under Article 200 of the Constitution? .. 340

vii. On Exercise of Article 142. ..................................................................... 382

H. CONCLUSION ......................................................................................... 387

W.P. (C) No. 1239 of 2023 Page 3 of 414

1. While the framers of the Constitution set out with a vision that the Governor

would be a “constitutional head, a sagacious counselor and adviser to the

Ministry”1, someone who can “pour oil over troubled waters”, what has

unfolded before us in the instant litigation has been quite the opposite, as

this Court has been called upon to calm the troubled waters stirred by the

ensuing long-drawn battle of a high constitutional order between the

petitioner and the respondent.

2. The State of Tamil Nadu, being aggrieved by the action of the Governor on

few issues of prime public importance, has invoked the jurisdiction of this

Court under Article 32 of the Constitution seeking appropriate reliefs as

prayed for in the writ petition. The petitioner is aggrieved by the action, or

rather inaction, on part of the Governor of Tamil Nadu in discharge of the

following functions:

(i) Withholding of assent to and reserving for consideration of the

President, by the Governor of 10 Bills enacted by the Legislature for

the State of Tamil Nadu.

(ii) Inaction on files submitted to the Governor for according sanction to

prosecute public servants and investigate various crimes of corruption

involving moral turpitude.

1 8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 431.

W.P. (C) No. 1239 of 2023 Page 4 of 414

(iii) Pendency of a number of files submitted to the Governor for premature

release of prisoners.

(iv) Pendency of proposals submitted to the Governor for appointment of

members to the Tamil Nadu Public Service Commission under Article

316 of the Constitution.

A. FACTUAL MATRIX

i. Factual background with respect to assent to bills.

3. The Legislature for the State of Tamil Nadu, between 13.01.2020 and

28.04.2023, enacted and forwarded 12 Bills to the Governor for grant of

assent as per Article 200 of the Constitution. Even though the present

Governor took charge of the office with effect from 18.11.2021, yet he did

not take the necessary action on any of the said Bills forwarded to his office

till October 2023. The petitioner, being aggrieved by the inaction on part of

the Governor, had to ultimately file the present writ petition before this

Court. The same was filed on 31.10.2023.

4. This Court issued notice to the respondents on 10.11.2023. The Governor,

forthwith, took a decision on the 12 Bills on 13.11.2023 by withholding

assent simpliciter to 10 bills i.e., he did not convey any message to the State

Legislature for reconsideration of the said Bills as prescribed under the first

W.P. (C) No. 1239 of 2023 Page 5 of 414 proviso to Article 200, and by reserving two Bills for the consideration of

the President. The 10 bills for which assent was withheld were returned to

the State Legislature by the Governor.

5. The State Legislature, on 18.11.2023, convened a special session and

repassed the 10 bills which were returned by the Governor after withholding

of assent. The bills were passed without any material change and were

forwarded to the Governor’s Secretariat on the same day for his assent in

accordance with the first proviso to Article 200. This Court, in its order dated

20.11.2023, noted that since the repassed 10 bills were pending with the

Governor, the hearing of the writ petition be adjourned to 01.12.2023 and

issued directions that this Court shall be apprised of the progress in the

matter.

6. On 28.11.2023, the Governor, without the aid and advice of the Council of

Ministers of the State, in exercise of his discretion, reserved the said

repassed Bills for the consideration of the President. The letter of the

Governor to the Union Government referring the said Bills for the

consideration of the President mentioned that the Bills were re-considered

and passed again by the State Legislature. Interestingly, although the

Governor noted that the Bills were intra-vires the competence of the State

Legislature having been legislated under Entry 66 of List I, Entry 32 of List

W.P. (C) No. 1239 of 2023 Page 6 of 414 II and Entry 25 of List III, yet he reserved the said Bills for the consideration

of the President in the second round on the ground that the Bills suffered

from repugnancy on account of being contrary to Entry 66 of the Union List

i.e., List I. These grounds have been taken by the Governor to reserve the 10

Bills for consideration of the President. For reference, we have extracted the

relevant portion of the letter pertaining to the Tamil Nadu Fisheries

University (Amendment) Bill, 2023 which reads thus:

“I am directed to state that the Tamil Nadu Legislative Assembly has passed the Tamil Nadu Fisheries University (Amendment) Bill, 2023 (LA Bill No.15 of 2023) on 21.4.2023 and sent to the Hon'ble Governor for assent. Hon'ble Governor has returned the Bill with the following remarks –

"I withhold assent".

2. The State Government have reconsidered the said Bill and again passed in the Tamil Nadu Legislative Assembly on 18.11.2023 and sent to Hon'ble Governor for assent.

3. In this regard, I am directed to inform that a Background Note on Reserving the Bills for the consideration of Hon'ble President regarding University Bills which has been approved by the Hon'ble Governor is enclosed, since, co-

ordination. and determination of standards in institutions of higher education or research and scientific and technical institutions Is in Entry No.66 of the Union List of the Seventh Schedule of the Constitution, the Bills suffer from repugnancy. Hence, the Hon'ble Governor has reserved the Bill viz. Tamil Nadu Fisheries University (Amendment) BIii, 2023 (LA Bill No.15 of 2023) for the consideration of the Hon'ble President.

W.P. (C) No. 1239 of 2023 Page 7 of 414

4. The Bill falls, mainly, within the scope of the following entries of the Union, State and Concurrent. Lists In the Seventh Schedule to the Constitution, namely-

UNION LIST Entry 66·- Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

STATE LIST Entry 32 -- Incorporation, regulation and winding up of corporations, other than those specified in List-I and Universities;

CONCURRENT LIST Entry 25 -- Education, including technical education, medical education and universities and is intra-vires the State Legislature.

5. I am, therefore, directed. to request to take appropriate action for the Bill to have consideration of the Hon'ble President.”

7. The Governor, on 04.12.2023, also sought to clarify that the 10 Bills to

which he had withheld assent simpliciter were not returned to the Legislature

for reconsideration as stipulated in the first proviso of Article 200. Despite

that, the State Government had placed the Bills before the legislative

assembly again. After the Bills were repassed by the legislative assembly,

the State Government sent the same back to the Governor for assent. The

Governor clarified that since the Bills suffered from repugnancy, he was

reserving the said Bills for the consideration of the President. These

clarifications were sent for all the 10 Bills. For reference, we have extracted

W.P. (C) No. 1239 of 2023 Page 8 of 414 the relevant portion of the letter pertaining to the Tamil Nadu Fisheries

University (Amendment) Bill, 2023 which reads thus:

“Kindly refer our letter dated 28.11.2023.

2.⁠ ⁠I am now directed to elaborate further on the circumstances under which the Bill was requested to be placed before the Hon'ble President for consideration. When the, The Tamil Nadu Fisheries University (Amendment) Bill, 2020 (LA Bill No. 2 of 2020) passed by the Tamil Nadu Legislative Assembly on 09.01.2020 was sent to the Hon'ble Governor for his essent, the Hon'ble Governor has exercised his substantive powers under Article 200 of the Constitution and took decision of withholding his assent to the Bill and the file was returned to the Law Department of the State Government, conveying the decision of the Governor "I Withhold assent". It is clarified that the Bills was not returned for re-consideration as stipulated in the proviso to Article 200 of the Constitution.

3.⁠ ⁠While withholding his assent, the Hon'ble Governor has relied on the position held by the five member bench (Constitution Bench) of the Hon'ble Supreme Court in Union of India and others Vs. Valluri Basavalah Chowdhary and others and Maharao Sahit Shri Bhim Singhi Vs. Union of India and others. (Civil Appeal No's 1896 of 1976, 265-300 of 1977, 29-38 of 1977 and 5 of 1977 and W.P. No. 350 of 1977, decided on May 1, 1979) where it has been stated In Para 19:

"The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State Legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except In the case of a 'Money Bill', withhold his assent

W.P. (C) No. 1239 of 2023 Page 9 of 414 therefrom, In which case the Bill falls through unless the procedure indicated in the first proviso is followed, I.e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down In Article 201".

4.⁠ ⁠However, State Government placed the Bill again in the Legislative Assembly and after getting Assembly's endorsement, sent them again to the Hon'ble Governor on 18.11.2023.

5.⁠ ⁠The Hon'ble Governor had not returned the Bills under the proviso to Article 200 for re-consideration, however, State Government has sent them back. Since the Bill suffers from repugnancy, Hon'ble Governor has reserved the same for the consideration of the Hon'ble President.”

8. In view of the reservation of the 10 Bills for the consideration of the

President, the petitioner filed the I.A. No. 259020 of 2023 on 11.12.2023,

seeking amendment of the prayers of the present writ petition and prayed for

insertion of the following prayer:

“Pass any writ/order or direction to declare that the action of the Governor of Tamil Nadu/ first Respondent of reserving the following Bills 1. Bill No 2/2020 namely “A Bill further to amend the Tamil Nadu Fisheries University Act, 2012”, 2. Bill No 12/2020 namely “A Bill further to amend the Tamil Nadu Veterinary and Animal Sciences University Act, 1989”,

3. Bill No 24/2022 namely “The bill to amend the Universities laws. The Vice-Chancellors of all Universities (except University of Madras)”, 4. Bill No 29/2022 namely “A Bill further to amend the Tamil Nadu Dr. Ambedkar Law University Act, 1996”, 5. Bill No 39/2022 namely “A Bill further to amend the Tamil Nadu Dr. M.G.R. Medical

W.P. (C) No. 1239 of 2023 Page 10 of 414 University, Chennai, Act, 1987”, 6. Bill No 40/2022 namely “A Bill further to amend the Tamil Nadu Agricultural University Act, 1971”, 7. Bill No 48/2022 namely “A bill further to amend the Tamil Nadu Universities Laws”, 8. Bill No 55/2022 namely “A Bill further to amend the Tamil University Act, 1982”, 9. Bill No 15/2023 namely “A Bill further to amend the Tamil Fisheries University Act, 2012”,

10. Bill No 18/2023 namely “A Bill further to amend the Tamil Nadu Veterinary and Animal Sciences University Act, 1989” for the consideration of the President qua the Bills passed and forwarded by the Tamil Nadu State Legislature to him as unconstitutional, illegal, arbitrary, unreasonable besides malafide exercise of power and/or to quash the being ultra- vires Articles 14, 19 and 21 read with Article 200 of the Constitution and direct the Respondent-1 to declare assent to the same.”

9. Thus, what was sought to be conveyed by the aforesaid I.A. was that the 10

Bills were reconsidered and passed again by the State Legislature and were

thereafter forwarded to the Governor for his assent in terms of the first

proviso to Article 200. However, the Governor reserved the said Bills for

the consideration of the President. It was alleged that such action on the part

of the Governor was violative of Article 200 and was done with a mala fide

intention only with a view to circumvent the jurisdiction of this Court.

10. Upon the suggestion made by this Court, the Governor, on 12.12.2023 wrote

to the Chief Minister for the State of Tamil Nadu inviting him to a meeting

in an attempt to resolve the deadlock. The Governor and the Chief Minister

W.P. (C) No. 1239 of 2023 Page 11 of 414 met on 30.12.2023, pursuant to which the Chief Minister submitted a

representation summarising the following issues:

a. The Bills could not have been reserved for the consideration of the

President after the decision of this Court in State of Punjab v.

Principal Secretary to the Governor of Punjab reported in (2024) 1

SCC 384, wherein it was held that once the Governor decides to

exercise the power of withholding assent to a bill, the operation of

the first proviso to Article 200 has to necessarily follow.

b. Article 200 does not confer any power upon the Governor to exercise

the option of reserving a bill for Presidential consideration after a

bill has been reconsidered and repassed by the State Legislature.

Since, the 10 Bills in the present case were reconsidered and passed

again by the State legislature, the only constitutionally permissible

option for the Governor was to grant assent.

c. The Governor also acted in contravention of the aid and advice of

the Council of Ministers that “the Bill repassed by the Legislative

Assembly should be assented to by the Hon’ble Governor without

withholding assent”, which is ultra vires of the Constitution.

11. In light of the above representation, the Chief Minister requested the

Governor to:

W.P. (C) No. 1239 of 2023 Page 12 of 414

(i) Recall the 10 Bills reserved for the consideration of the President and

grant assent expeditiously;

(ii) In future, grant assent to Bills passed by the State Legislature within 30

days and avoid unnecessary reservation of the bills for the

consideration of the President;

(iii) Act in accordance with the aid and advice tendered by the Council of

Ministers.

12. Out of the 10 Bills reserved for her consideration, the President withheld

assent to seven Bills, granted assent to one Bill and is yet to consider the

remaining two Bills.

13. The status of the Bills is summarized below:

S. No. Bill Details Forwarded Action by Re-enacted Action by Action by to the the by the the the Governor Governor State Governor President by the Legislature State Legislature

1. Bill No. 2/2020 namely 13.01.2020 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil Nadu Fisheries 13.11.2023. of the 26.02.2024.

University Act, 2012. President on

28.11.2023.

W.P. (C) No. 1239 of 2023 Page 13 of 414

2. Bill No 12/2020 namely 18.10.2020 Assent 18.11.2023 Reserved for Assent is

“A Bill further to amend withheld on consideration awaited

the Tamil Nadu 13.11.2023. of the since

Veterinary and Animal President on 28.11.2023.

Sciences University Act, 28.11.2023.

1989”

3. Bill No 24/2022 namely 28.04.2022 Assent 18.11.2023 Reserved for Assent

“The bill to amend the withheld on consideration withheld on

Universities laws. The 13.11.2023. of the 26.02.2024.

Vice Chancellors of all President on

Universities (except 28.11.2023.

University of Madras) to

be appointed by the

Government instead of

Governor.”

4. Bill No. 25/2022 namely 28.04.2022 Reserved for - - Status not

“A bill to further amend consideration on record.

the Chennai University of the

Act.” President on

13.11.2023.

5. Bill No. 26/2022 namely 05.05.2022 Reserved for - - Status not

“A Bill to provide for the consideration on record.

Establishment and of the

Incorporation of a President on

University for Siddha 13.11.2023.

W.P. (C) No. 1239 of 2023 Page 14 of 414 Ayurveda, Unani, Yoga

& Naturopathy and

Homeopathy in the

State.”

6. Bill No 29/2022 namely 16.05.2022 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil Nadu Dr. 13.11.2023. of the 15.02.2024.

Ambedkar Law President on

University Act, 1996”. 28.11.2023.

7. Bill No 39/2022 namely 16.05.2022 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil Nadu Dr. 13.11.2023. of the 16.02.2024.

M.G.R. Medical President on

University, Chennai, Act, 28.11.2023.

1987”.

8. Bill No 40/2022 namely 16.05.2022 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil Nadu 13.11.2023. of the 18.02.2024.

Agricultural University President on

Act, 1971”. 28.11.2023.

W.P. (C) No. 1239 of 2023 Page 15 of 414 9. Bill No 48/2022 namely 27.10.2022 Assent 18.11.2023 Reserved for Assent

“A bill further to amend withheld on consideration granted on

the Tamil Nadu 13.11.2023. of the 18.02.2024.

Universities Laws.” President on

28.11.2023.

10. Bill No 55/2022 namely 27.10.2022 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil University Act, 13.11.2023. of the 18.03.2024.

1982.” President on

28.11.2023.

11. Bill No 15/2023 namely 28.04.2023 Assent 18.11.2023 Reserved for Assent

“A Bill further to amend withheld on consideration withheld on

the Tamil Nadu Fisheries 13.11.2023. of the 26.02.2024.

University Act, 2012.” President on

28.11.2023.

12. Bill No 18/2023 namely 28.04.2023 Assent 18.11.2023 Reserved for Assent is

“A Bill further to amend withheld on consideration awaited

the Tamil Nadu 13.11.2023. of the since

Veterinary and Animal President on 28.11.2023.

Sciences University Act, 28.11.2023.

1989”.

W.P. (C) No. 1239 of 2023 Page 16 of 414 ii. Factual background with respect to accord of sanction for investigation

into cases of corruption against public servants.

14. Between 10.04.2022 and 15.05.2023, the Government of Tamil Nadu

submitted to the Governor, four files relating to the prosecution of public

servants involved in crimes of moral turpitude under the Prevention of

Corruption Act, 1988, which at the time of filing of the writ petition

remained pending with the Governor.

15. It is only upon the present writ petition being filed and issuance of notice

that the Governor’s office started acting upon the files. The Governor, on

01.12.2023, submitted the factual position regarding the bills, files and other

cases pending with his office detailing the actions taken thereupon. The

details of the files requesting for sanction to investigate and prosecute and

the Governor’s actions thereupon are summarised below:

S. No. Department Subject Request sent Status of the Files by the State to the Governor

1. Tamil Request to accord sanction by the 11.05.2022 Sanction accorded on

Development Hon’ble Governor/Chancellor for 18.11.2023.

and initiating preliminary enquiry under

Information Section 17A(1)(b) of the Prevention

Department of Corruption Act, 1988 against

W.P. (C) No. 1239 of 2023 Page 17 of 414 Thiru G. Bhaskaran, Former Vice-

Chancellor, Tanjavur University.

2. Public (S.C.) Request to accord sanction by the 12.09.2022 • A duly authenticated

Department Hon’ble Governor u/s 19(1) of the investigation report was

Prevention of Corruption Act, 1988 sought from the

to prosecute Thiru K.C. Veeramani, Government on

former Minister. 07.07.2023.

• The Government sent a

reply dated 11.07.2023

stating that authenticated

investigation report has

been submitted.

• The Governor sent back

the file to the

Government on

15.11.2023 with the

observation that there

was no duly

authenticated

investigation report in

the file.

• The Government re-

submitted the file on

18.11.2023.

W.P. (C) No. 1239 of 2023 Page 18 of 414 3. Public (S.C.) Request to accord sanction by the 12.12.2022 Sanction accorded on

Department Hon’ble Governor for initiating 13.11.2023.

prosecution u/s 19 of the Prevention

of Corruption Act, 1988 against

Thiru B.V. Ramana @ B.

Venkataramana, former Minister for

Commercial Taxes and Dr. C.

Vijayabaskar, former Minister for

Health & Family Welfare.

4. Public (S.C.) Request to accord necessary 15.05.2023 Under consideration since

Department sanction by the Hon’ble Governor May 2023.

for initiating prosecution u/s

19(1)(b) of PC ACT, 1988 against

Thiru M.R. Vijayabhaskar, former

Minister.

iii. Factual background with respect to the files pertaining to premature release of prisoners.

16. The petitioner forwarded 53 files pertaining to the premature release of

prisoners to the Governor between June and August 2023 requesting

approval thereof.

17. In response to the allegation of delay and pendency on the said files, the

office of the Governor represented before this Court that since September

W.P. (C) No. 1239 of 2023 Page 19 of 414 2021, i.e., from the date the present Governor assumed office, 580 proposals

regarding premature release of prisoners were received out of which 362

files were approved, 165 files were rejected and 53 were under

consideration.

18. The Governor informed in the backdrop of the factual position prevailing on

01.12.2023 that the 53 files that remained pending were recent proposals

sent by the petitioner only between June and August 2023. This Court has

not been apprised of the status of these files after 01.12.2023 by any of the

parties.

iv. Factual background with respect to the appointments to the Tamil Nadu Public Service Commission (TNPSC).

19. It is the case of the petitioner that it was represented before the Governor by

way of various representations that as per Regulation 3 of the Tamil Nadu

Public Service Commission Regulations, 1954, the Commission shall

consist of a Chairman and 14 Members. However, no heed was paid to such

representations. The functioning strength of TNPSC was of four members

on the date of filing of the present petition.

20. In regard to the aforesaid, the petitioner forwarded representations to the

Governor’s office seeking approval of the proposed names for the position

W.P. (C) No. 1239 of 2023 Page 20 of 414 of members in TNPSC and carrying out their appointments. The petitioner

also sent reminders to the Principal Secretary to the Governor for acting on

the files sent to the Governor’s office in this respect.

21. The Governor, on 27.09.2023, returned the said files with a note raising

some queries regarding transparency in the selection process, tenure of the

members to be appointed and credentials of the proposed candidates. The

Governor clarified that as the queries raised by his office were not addressed

by the petitioner, the proposal for appointment of the recommended

candidates was being returned and the same was no longer pending before

him. This happened on 26.10.2023.

22. The petitioner, on the other hand, has averred in its writ petition that such

queries were against the established practices to the selection of

constitutional posts and that the availability of the chairman and members in

the TNPSC was essential to monitor and expedite various recruitment

processes as well as promotions. Delays in appointments to the TNPSC

resulted in non-availability of sufficient members, which detrimentally

affected the functioning of the Executive.

23. The petitioner explained this position and also addressed the queries raised

by the Governor in its clarification note dated 07.10.2023. The files for

W.P. (C) No. 1239 of 2023 Page 21 of 414 approval of appointments were accordingly re-submitted on 10.10.2023,

however, the same were returned by the Governor on 27.10.2023 without

assigning any reasons.

v. Factual background with respect to dismissal of ministers and allocation of ministries.

24. On 29.06.2023, the Governor suo moto and contrary to the aid and advice of

the State Council of Ministers recommended the dismissal and divestment

of portfolio of Senthil Balaji, a minister in the Tamil Nadu Cabinet on the

ground that he was arrested by the Enforcement Directorate and was in

judicial custody. However, the Governor addressed another letter to the

Chief Minister on the very same day informing that he had kept the dismissal

of Senthil Balaji in abeyance till further communication in light of the advice

of the Union Minister of Home Affairs that it would be prudent to seek the

opinion of the Attorney General on the matter.

25. In a similar case, Dr. K. Ponmudy, a minister in the Government of Tamil

Nadu was convicted and sentenced by the Madras High Court against which,

he filed an appeal before this Court. This Court, vide order dated 11.03.2024,

suspended the conviction of Dr. K. Ponmudy from its operation keeping in

view Section 8(3) of the Representation of People’s Act, 1951 and more

W.P. (C) No. 1239 of 2023 Page 22 of 414 particularly for the reason that he should not suffer disqualification from the

office of Member of Legislative Assembly.

26. Accordingly, on 13.03.2024, the Speaker of the State Legislative Assembly

declared that the disqualification ceased to operate with effect from

19.12.2023. The Election Commission also withdrew the notification of

vacancy for his constituency.

27. The Chief Minister wrote to the Governor on 13.03.2024 to swear in Dr. K.

Ponmudy as a Minister and allot to him the portfolio of Higher Education.

However, the Governor vide the letter dated 17.03.2024, declined the request

stating that the conviction order was suspended from its operation by way

of ‘interim relief’ granted by this Court which meant that the conviction

against Dr. Ponmudy, though existent, had been made non-operative and not

set aside. The Governor also stated that the re-introduction of Dr. K.

Ponmudy in the Cabinet would be against “constitutional morality”.

28. Consequently, the petitioner was constrained to file I.A. No. 69967 of 2024

on 18.03.2024 to amend its prayer in the present writ petition for including

the relief of staying the operation of the Governor’s letter dated 17.03.2024

and directing him to administer the oath of office and secrecy to Dr. K.

Ponmudy. The amendment sought to be made reads thus:

W.P. (C) No. 1239 of 2023 Page 23 of 414

“It is therefore, most respectfully prayed that this Hon’ble Court may be pleased to:

a) Grant permission to amend the prayer in the above W.P. No. 1239 of 2023 and add the following prayer:

“f. Call for the records of the 1st Respondent pertaining to Letter No. 007/RBTN/ 2024 dated 17.03.2024 and quash the same and direct the 1st Respondent to act in accordance with the letter of the Hon’ble Chief Minister of Tamil Nadu in D.O. Letter No. 952/CMO/2024 dated 13.03.2024 and consequently to appoint Thiru K. Ponmudi, Member of Tamil Nadu Legislative Assembly as a Minister of the Government of Tamil Nadu by administering oath of office and secrecy with the portfolios specified in the letter of the Hon’ble Chief Minister of Tamil Nadu in D.O. Letter No. 952/CMO/2024 dated 13.03.2024 and consequently to change the portfolios among Hon’ble Ministers”

b) Pass such other or further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”

29. This Court heard the application on 22.03.2024 and expressed its displeasure

at the reluctance of the Governor to accept the order of this Court dated

11.03.2024 suspending the sentence of Dr. K. Ponmudy. This prompted the

Governor to swear in Dr. K. Ponmudy as Minister in the State Cabinet and

the I.A. was disposed of accordingly recording the same.

W.P. (C) No. 1239 of 2023 Page 24 of 414

30. In the aforesaid factual matrix, the petitioner have prayed for a declaration

that the reservation of the bills by the Governor for the consideration of the

President after they were repassed by the State Legislature and presented

before him as illegal. Further, as a sequitur, the petitioner have prayed that

the act of withholding of assent by the President be declared as void ab-

initio. The petitioner have also prayed for a declaration that the simpliciter

withholding of assent by the Governor without following the procedure

prescribed in the first proviso to Article 200, be also declared to be illegal

for being in contravention to the position of law as laid down in State of

Punjab (supra). The petitioner have also prayed for a direction to the

Governor to accord sanction for prosecution, take prompt decision on the

pending files pertaining to grant of remission and to clear the proposal for

appointment of members to the TNPSC.

B. SUBMISSIONS OF THE PARTIES

i. Submissions on behalf of the Petitioner

31. Mr. Rakesh Dwivedi, the learned Senior Counsel appearing for the

petitioner, made elaborate submissions on the following aspects:

a) Apparent Constitutional errors committed by the Governor.

i) Pocket veto is not available under the Indian constitutional scheme.

The Governor could not have kept the Bills submitted to him

W.P. (C) No. 1239 of 2023 Page 25 of 414 between the years 2020 and 2023 in a cold storage without taking

any decision on them. The fact that he entered no discussion with

the State Government or the Chief Minister in relation to the Bills

submitted to him further indicates that the Governor exercised

pocket veto in relation to the said Bills, thereby bringing the

constitutional machinery to a standstill. He submitted that the

substantive part of Article 200 uses the expression “shall declare”

which indicates that the function of the Governor is mandatory. The

underlying objective of Article 200 is to make a Bill operative as

an Act. Therefore, the scheme of Article 200 negates the possibility

of engaging in inordinate delay or pocket veto.

ii) The Governor failed to take note of the decision of this Court in

State of Punjab (supra). Although the said decision held that the

first proviso to Article 200 attaches to the option of withholding

assent, yet the Governor recorded a simpliciter finding of

withholding assent without conveying any message to the State

Legislature, as provided under the first proviso. He submitted that

simpliciter withholding of assent by the Governor is also violative

of Article 14 which mandates that the exercise of Constitutional

powers should be based on reason and transparency. The State

Legislature must be told why the assent has been withheld so as to

W.P. (C) No. 1239 of 2023 Page 26 of 414 enable it to reconsider the Bill. He further submitted that in the

absence of any message, it would be open to the State Legislature

to understand that the Governor wishes the entire Bill to be

reconsidered.

iii) On the facts of the present case, Mr. Dwivedi submitted that having

recorded that the Bills submitted to him were intra vires of the State

Legislature, it was not open to the Governor to reserve the Bills for

the consideration of the President upon being repassed and

presented again before him. He submitted that once the reservation

of the Bills for the consideration of the President is found to be

erroneous in law, any subsequent withholding of assent by the

President would also be legally vitiated.

iv) He submitted that even the withholding of assent by the President

under Article 201 was by way of a non-speaking order and thus

does not comply with the first proviso to the Article. Similar to

Article 200, the withholding of assent under Article 201 must

necessarily result in a message under the first proviso. He

summarised his arguments on this aspect by submitting that the acts

of simpliciter withholding, reserving for the consideration of the

President, delay by Governor, as well as simpliciter withholding of

W.P. (C) No. 1239 of 2023 Page 27 of 414 assent by the President are all unconstitutional, and hence null and

void.

b) Justiciability and Judicial Review.

i) Mr. Dwivedi submitted that no constitutional power vested in any

authority, howsoever high, is beyond the powers of judicial review

of the constitutional courts. The scope of judicial review may vary,

but no power is beyond the purview of the courts. The Courts may

exercise restraint, but that is not to say that if the power has been

exercised unconstitutionally, manifestly arbitrarily, in breach of

fundamental rights enshrined in Part III or any other provision of

the Constitution, or in a mala fide manner, the courts would be

prohibited from striking down the exercise of such power.

ii) In furtherance of the aforesaid submission, he drew our attention to

the decision in S.R. Bommai v. Union of India reported in (1994)

3 SCC 1 wherein the justiciability of a proclamation under Article

356 was propounded. He also relied upon the decisions of this

Court in Rameshwar Prasad v. Union of India reported in (2006)

2 SCC 1 and Kihoto Holohan v. Zachillhu reported in 1992 Supp

(2) SCC 651 wherein the exercise of power of the Governor to

invite the leader of the majority party to form government and the

W.P. (C) No. 1239 of 2023 Page 28 of 414 power of the Speaker under the 10th Schedule to the Constitution

were respectively held to be justiciable by this Court.

iii) In light of the aforesaid, he submitted that the position of law as on

date, as explained by several Constitutional Bench decisions, is

clear that no exercise of Constitutional power is outside the ambit

of judicial review. No power is absolute and non-justiciable. Hence,

the power exercised under Article 200 can also be examined by this

court to discern any unconstitutionality.

c) Governor is required to act upon the aid and advice of the Council of Ministers.

i) Mr. Dwivedi submitted that the various provisions of the

Constitution stand in harmony and are interdependent. They are not

isolated silos. They share the ultimate objective of harmonious

Parliamentary governance, seek welfare of the people and

implement Parliamentary form of democracy within a federal

system. Therefore, interpretation of a Constitutional provision

should accord with these fundamental principles and the basic

structure of the Constitution.

ii) He submitted that this Court has been consistent in its approach

while interpreting the constitutional provisions, more particularly

W.P. (C) No. 1239 of 2023 Page 29 of 414 those that pertain to the Governor or the President, in light of the

fundamental principles of Parliamentary democracy and

federalism. He placed reliance on the decisions of this Court in

Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831,

S.R. Bommai (supra), Nabam Rebia & Bamang Felix v. Dy.

Speaker, Arunachal Pradesh Legislative Assembly reported in

(2016) 8 SCC 1 in support of the aforesaid submission.

iii) He further submitted that the discretion of the Governor under the

Indian Constitution is governed solely by Article 163(1) and the

interpretation adopted by this Court has been such which does not

make the Governor dominant over the Chief Minister, who is an

elected representative of the people.

iv) Article 200 embodies an aspect of legislative procedure so as to

make a Bill operative as an Act. Seen thus, it is imperative that the

Governor acts upon the aid and advice of the Council of Ministers

when exercising his power under Article 200.

v) Taking us through the historical background in which Article 200

came to be drafted, Mr. Dwivedi submitted that Section 75 was the

provision corresponding to Article 200 in the Government of India

Act, 1935. However, in Section 75 the expressions “Governor in

W.P. (C) No. 1239 of 2023 Page 30 of 414 his discretion” and “Governor may, in his discretion” were

deployed in the substantive part and the proviso respectively. Later

on, when the draft of the Constitution was prepared by the

constitutional advisor, the expression “Governor in his discretion”

was dropped from the substantive part of Article 147 (predecessor

of draft Article 175), but the expression “Governor may, in his

discretion” was retained in the proviso. The same position

continued in Article 175 of the Draft Constitution, 1948

(hereinafter, “the Draft Constitution”) (predecessor of Article

200) presented before the Constituent Assembly. However,

ultimately, the expression conferring discretion was dropped and

Article 200 came to be adopted in its present form. He submitted

that the reason for this was explained by Dr. Ambedkar who said

that there can be no room for the Governor to act on his discretion

in a responsible form of government. Further, it was explained by

Mr. T.T. Krishnamachari that the returning of the Bill to the

Legislature will only be upon the advice of the Council of Ministers

and not on the personal discretion of the Governor.

vi) Mr. Dwivedi submitted that issues of repugnance of State

legislation with a Central enactment are not of easy determination

and the only method of discourse between the Governor and the

W.P. (C) No. 1239 of 2023 Page 31 of 414 State Legislature is provided in the first proviso to Article 200.

Hence, simpliciter withholding of assent without taking recourse to

the first proviso ought to be rejected by the Courts and compliance

with the first proviso ought to be mandated in every case of

withholding of assent. Furthermore, issues of repugnance should be

left for the constitutional courts to decide.

vii) The interpretation of Article 200 must be done in line with the

intent of the framers of the Constitution which is evident from the

Constituent Assembly Debates. The only instance where this Court

adopted an approach contrary to the one suggested by the

Constituent Assembly pertained to the appointment of Judges to the

High Court and this Court and that approach was adopted to

preserve the independence of the judiciary, which is part of the

basic structure. However, in the present case, there is no compelling

need to diverge from the view adopted by the Constituent Assembly

as that view supports the fundamental principles of federalism.

d) Option of withholding of assent is attached to the first proviso to Article 200.

i) He submitted that the exercise of power to withhold assent by the

Governor is coupled with the duty of the Governor to comply with

the procedure prescribed in the first proviso to Article 200 and the

W.P. (C) No. 1239 of 2023 Page 32 of 414 same has been recognised in the decision in State of Punjab

(supra).

ii) On the use of the expression “shall declare” in the substantive part

of Article 200, he submitted that this expression in the main part of

Article 200 would, by necessary implication, require the Governor

to mention the reasons for withholding the assent.

iii) He submitted that the expression “shall not withhold assent

therefrom” in the first proviso to Article 200 takes away the option

of reserving the Bill for the consideration of the President from the

Governor when the Bill is repassed by the State Legislature and

presented before him for assent. In support of his submission, he

argued that the use of a negative expression renders the course of

action prescribed as mandatory in nature. He further submitted that

the phraseology of the first proviso to Article 200 is different from

the proviso to Article 201 inasmuch as the latter does not oblige the

President to mandatorily assent to the Bill after it has been repassed

by the State Legislature and is presented before him again.

Whereas, in contrast, the first proviso to Article 200 is couched in

a negative language and thus prohibits the Governor from taking

any other recourse than granting assent.

W.P. (C) No. 1239 of 2023 Page 33 of 414

e) Reservation of bills for the consideration of the President.

i) Mr. Dwivedi submitted that the power to reserve the Bill for the

consideration of the President is not open ended. If specific

provision of the Constitution does not require Presidential assent to

the Bill passed by State Legislature, then such a Bill cannot be

reserved for the consideration of the President.

ii) He submitted that a further limitation on the power to reserve a Bill

is that it can only be reserved on the aid and advice of the Council

of Ministers and the Governor has no personal discretion in this

matter. Articles 31A, 31C, 213, 254, 288, 304(b), 360 and 6th

Schedule are the only provisions which expressly require assent of

President. It is only when these articles are attracted that the

Governor can reserve the Bills for consideration of the President.

In the exclusive domain of Legislation under the State List or List-

II of the 7th Schedule of the Constitution, no assent of President is

needed.

iii) On the aspect of repugnancy, he submitted that the letter of the

Governor informing that the Bills were being reserved for the

consideration of the President fails to specify the Central law with

which States Bills are repugnant. This indicates non-application of

W.P. (C) No. 1239 of 2023 Page 34 of 414 mind. He submitted that in Kaiser-I-Hind Pvt. Ltd. and Anr. v.

National Textile Corporation (Maharashtra North) Ltd. and Ors.

reported in (2002) 8 SCC 182, a Constitution Bench of this Court

held that the Central law with which repugnance exists must be

pointed out by the proposal of State government specifically. Even

the nature of repugnance should be stated so as to enable the

President to consider the nature, extent, feasibility, practicality and

desirability of assenting.

iv) On the aspect of reading in a time limit within the scheme of Article

200, he submitted that an outer limit of 2 to 3 months needs to be

stipulated by this court to obviate exercise of pocket-veto by the

Governors. Delays of over 3 months needs to be curbed.

32. Dr. Abhishek Manu Singhvi, the learned Senior Counsel appearing for the

petitioner, made detailed submissions broadly on the following aspects:

a) The Governor in exercise of his functions under Article 200 is required to act on the aid and advice tendered by the Council of Ministers.

i) The Governor is merely a titular or de jure head of the State and the

task of governing the State is entrusted to the Chief Minister and

his Council of Ministers who can be said to be the head of the State

W.P. (C) No. 1239 of 2023 Page 35 of 414 de facto. The powers vested in the Governor under the Constitution

must be exercised on the aid and advice of the Council of Ministers

headed by the Chief Minister.

ii) The Constituent Assembly Debates indicate that the framers of our

Constitution envisaged the position of the Governor as that of a

guide, philosopher and a friend of the Government and the people

in general.

iii) The Constituent Assembly, in its wisdom and in consonance with

the position of the Governor in the parliamentary form of

Government, removed the phrase “in his discretion” from the

substantive part and the first proviso to Section 75 of the

Government of India Act upon which Article 200 was modelled.

iv) The Constitutional Scheme does not envisage that the Governor

would have the power to veto Bills duly passed by the State

Legislature and would be capable of supplanting the policies of the

Government with his own discretion. The Governor cannot sit over

the Bills enacted by the Legislature indefinitely as that would be

against the interest of the people who elect the Government with

the aspiration that the Government would legislate in their interest.

W.P. (C) No. 1239 of 2023 Page 36 of 414 Gubernatorial procrastination is a new phenomenon and requires

judicial intervention for finding a new solution for it within the

Constitutional framework.

v) Placing reliance on the Constitution Bench decision in Samsher

Singh (supra), he submitted that although the executive power of

the State is vested in the Governor yet it is actually carried on by

the Ministers under the Rules of Business made under Article

166(3). Further, the President or the Governor act on the aid and

advice of the Council of Ministers with the Prime Minister as the

head in the case of the Union and the Chief Minister as the head in

the case of States, in all matters which vest in the Executive,

irrespective of whether those functions are executive or legislative

in character.

vi) Referring to the observations made by a Constitution Bench of this

Court in Nabam Rebia (supra), it was submitted that the Governor

cannot be entrusted with such powers and functions as would assign

to him a dominating position over the State Executive and the State

Legislature. The Governor cannot be accepted as an all-pervading

super-constitutional authority. It was submitted that an examination

of the executive and legislative functions of the Governor in the

W.P. (C) No. 1239 of 2023 Page 37 of 414 context of the constitutional scheme clearly brings out that the

Governor has not been assigned any substantive role either in the

executive or the legislative functioning of the State.

vii) It was argued that this Court in Nabam Rabia (supra) has gone

further to say that any exercise of discretionary powers of the

Governor is limited to situations where a constitutional provision

expressly provides that the Governor should act in his own

discretion. Additionally, a Governor may exercise his functions in

his own discretion in situations where the constitutional provision

concerned cannot be construed otherwise and in situations where

the clear intent underlying a constitutional provision so requires

i.e., where the exercise of such power on the aid and advice, would

run contrary to the constitutional scheme, or would be contradictory

in terms.

viii) In response to our specific question as regards the observations

made by this Court in B.K. Pavitra v. Union of India reported in

(2019) 6 SCC 129, that the eventuality in Article 254(2) does not

exhaust the ambit of the power entrusted to the Governor under

Article 200 to reserve a Bill for the consideration of the President,

he submitted that the Governor may legitimately refer a bill for

W.P. (C) No. 1239 of 2023 Page 38 of 414 consideration at the end of the President upon entertaining a

legitimate doubt about the validity of law. However, such reference

of a bill can only be done with the aid and advice of the Council of

Ministers and not upon the individual discretion of the Governor.

ix) He further submitted that the said observations in B.K. Pavitra

(supra) should be interpreted to mean that even though the power

under Article 200 is entrusted to the Governor, yet such exercise of

power can only be done with the aid and advice of the Council of

Ministers of the State. The Governor has no independent discretion

under the substantive part of Article 200 for referring the bill for

the consideration of the President. As is crystal clear from the

Constituent Assembly Debates, there is no independent discretion

vested in the Governor in exercise of his functions under Article

200 of the Constitution. Although the power of reserving Bills for

the consideration of the President is a necessary channel for

references under Article 254(2) to save the competence of the State

Legislatures from being unduly restricted by the operation of the

rule of repugnancy embodied in Clause (1) of the Article 254, yet

such power is also subject to the aid and advice of the Council of

Ministers.

W.P. (C) No. 1239 of 2023 Page 39 of 414

b) The Governor cannot reserve a bill for the consideration of the President when it is repassed by the State Legislature, with or without amendments, under the first proviso to Article 200?

i) Mr. Singhvi submitted that the relevant consideration at the end of

the Governor when a bill is presented before him for assent broadly

should be as follows:

1. The first step is to ascertain whether the Bill is a Money Bill – In

cases of Money Bills, the Governor has to grant assent.

2. Thereafter, the Governor must ascertain whether the second

proviso to Article 200 is attracted, that is, whether the Bill, if it

became law, would derogate from the powers of the High Court -

If the answer is yes, then the Governor must reserve the Bill for

the consideration of the President.

3. In all other cases, the Governor has three options to choose from

when the bill is presented before him for the first time – to either

assent, or withhold assent, or reserve the Bill for the consideration

of the President.

ii) He submitted that after the Governor has withheld assent to a bill

and returned the same to the Legislative Assembly, it is not open to

the Governor to reserve the said bill for the consideration of the

President once the Legislative Assembly re-passes it with or

W.P. (C) No. 1239 of 2023 Page 40 of 414 without amendment. If the Governor wants to reserve any bill for

the consideration of the President, he must do so in the first instance

when the bill is presented to him for assent. The Governor can

choose any one of the three options at the first instance but if he

exercises the option to withhold assent, then the option of reserving

the bill for the consideration of the President ceases to exist because

the next step in such a case is to follow the procedure prescribed

under first proviso to Article 200.

iii) Explaining the reason for the aforesaid, he submitted that upon

exercising the second option, the third option no longer remains for

the Governor as the first proviso to Article 200 comes into

operation. Article 200 does not provide any scope to the Governor

for the reservation of the bill once the second option has already

been exercised. The decision of the Governor to go down the path

of sending the bill back to the Legislature precludes him from

reversing his constitutional election subsequently, by referring it to

the President after the Bill is returned to him consequent to

repassing by the Legislature.

W.P. (C) No. 1239 of 2023 Page 41 of 414

c) The first proviso to Article 200 is attached to the option of withholding of assent provided in the substantive part of the article.

i) The concluding part of the first proviso stipulates that if the Bill is

passed again by the Legislature either with or without amendments,

the Governor shall not withhold assent therefrom upon

presentation. The expression “shall not withhold assent therefrom”

is a clear indicator that the exercise of the power under the first

proviso is relatable to the withholding of the assent by the Governor

to the bill in the first instance. This phrase constitutes a clear and

unequivocal constitutional prohibition against the Governor. The

role which is ascribed by the first proviso to the Governor is

recommendatory in nature and it does not bind the State

Legislature.

ii) The first proviso to Article 200 expands upon the second option to

ensure that the object of the Article is not rendered otiose as without

the first proviso, Article 200 would allow the Governor to

indiscriminately veto bills by repetitively and sequentially

withholding the assent and cripple an elected Government for

political reasons.

W.P. (C) No. 1239 of 2023 Page 42 of 414

iii) On the use of the expression “may” in the first proviso to Article

200, placing reliance on the decision of this Court in State of Uttar

Pradesh v. Jogendra Singh reported in AIR 1963 SC 1618 the

counsel submitted that in the said decision while adjudicating the

duty of the Governor to refer the cases relating to Government

servants to the Administrative Tribunal under Rules 4(2) of the

Civil Service Rules which also used the expression “may” this

Court had held that the word “may” is capable of meaning “must”

or “shall” in the light of the context. He further submitted that

where a discretion is conferred upon a public authority coupled

with an obligation, the word “may” which denotes discretion

should be construed to mean a command. Sometimes, the

legislature uses the word “may” out of deference to the high status

of the authority on whom the power and the obligation are intended

to be conferred and imposed.

iv) The first part of the first proviso is mandatory in nature. It

authorises the Governor to, as soon as possible, after the

presentation for Bill for assent, return the Bill together with a

message requesting the House to reconsider the Bill with the

desirability of introducing any such amendments as he may

recommend in his message. He submitted that this interpretation

W.P. (C) No. 1239 of 2023 Page 43 of 414 was also followed by this Court in the decision in State of Punjab

(supra) by stating that Governor must mandatorily follow the

course of action indicated in the first proviso of communicating to

the State Legislature “as soon as possible” a message warranting

reconsideration of the Bill.

v) The Governor can only return the bill when he has withheld the

assent. The Governor cannot be expected to keep the bill in his

custody after withholding the assent as it would amount to a

“pocket veto” or veto which is contrary to the intention of the

makers of the Constitution. Any acceptance of such “suspended

animation” doctrine of a Bill, supposedly kept indefinitely pending

by a Governor, would be grossly violative of the Constitutional

text, spirit and intent.

vi) The counsel while highlighting the facts of the case at hand,

submitted that the Governor had returned the Bills with the remarks

“I withhold assent” which amounts to a clear withholding as per the

second option of the substantive part of Article 200. When these

Bills were returned to the Legislative Assembly, the Bills only

contained a signed endorsement by the Governor with the remarks

“I withhold assent” and there was no message for reconsideration.

W.P. (C) No. 1239 of 2023 Page 44 of 414 In such a situation of simpliciter withholding of assent, the State

Legislative Assembly cannot be precluded from re-considering the

Bill and re-passing the Bill as the exercise of the option of

withholding of assent brings into operation the first proviso

whereby such Bills have to be returned to the State Legislative

Assembly.

vii) Once the first proviso comes into operation, the State Legislature is

bound to mandatorily reconsider the Bills and pass them with or

without any amendments as indicated by the expression “House or

Houses shall reconsider the Bill accordingly” in the second part of

the first proviso to Article 200.

d) A time-limit must be read into the expression “as soon as possible” appearing in the first proviso to Article 200 to curtail the prevalent practice of gubernatorial procrastination.

i) He submitted that the expression “as soon as possible” provided in

first proviso to Article 200 does not provide any strict time limit to

be followed by the Governor to decide upon the Bills presented for

assent, but that should not and cannot mean that the Governor can

keep a Bill duly passed by the State Legislative Assembly

“pending” for indeterminate periods. This course of action is

inconsistent with the phrase “as soon as possible”.

W.P. (C) No. 1239 of 2023 Page 45 of 414

ii) The counsel placed reliance on the following decisions of this Court

in support of his submission:

• The State of Telangana v. Secretary to Her Excellency the

Hon’ble Governor for the State of Telangana & Anr. reported

in (2024) 1 SCC 405 has emphasized that the phrase “as soon

as possible” has significant Constitutional content, and must be

borne in mind by Constitutional functionaries.

• Ram Chand and Ors. v. Union of India and Ors. reported in

(1994) 1 SCC 44 held that where for exercise of power no time-

limit is fixed, it has to be exercised within a time which can be

held to be reasonable.

• Keisham Meghachandra Singh v. Speaker, Manipur

Legislative Assembly and Ors. reported in (2021) 16 SCC 503

had postulated a “three months outer limit” for deciding

disqualification petitions filed before the Speaker.

• M/s North Eastern Chemicals Industries (P) Ltd. & Anr. v.

M/s Ashok Mills - CA No. 2669 of 2023 has held that where

there is no time period prescribed by the statute, the Court must

undertake a holistic assessment of the facts and circumstances,

conduct of the parties, and the nature of the proceedings to

examine the possibility of delay causing prejudice to a party. W.P. (C) No. 1239 of 2023 Page 46 of 414 • AG Perarivalan v. State, Through Superintendent of Police

CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr. reported in

(2023) 8 SCC 257 wherein while dealing with the delay caused

by the Governor in deciding remission matters, this Court

exercised its powers under Article 142 of the Constitution

directing that the prisoner was deemed to have served the

sentence.

iii) Mr. Singhvi referred to Chapter V of the report of the Sarkaria

Commission on Centre-State Administrative Relations wherein it

was suggested that the Governor should make a declaration under

Article 200 within one month from the date on which the Bill is

presented. He also referred to the Punchhi Committee Report on

Centre-State Relations which recommended “maximum period of

six months after Bill is presented” to be the time limit to be

followed by the Governor under Article 200.

e) The observations made by this Court in its decision in Valluri Basavaiah Chowdhary are not applicable to the present case

i) Mr. Singhvi submitted that this Court in Valluri Basavaiah

Chowdhary (supra) had no occasion to adjudicate upon the

W.P. (C) No. 1239 of 2023 Page 47 of 414 interpretation of the constitutional powers of the Governor under

Article 200 of the Constitution. Therefore, the observations of the

Court in Para 19 cannot be construed to be its ratio decidendi. At

most, these observations could be considered as obiter dicta.

Indeed, they may not even constitute obiter but are mere

observations, totally unconnected to and unnecessary for that case.

ii) He relied upon the decision of this Court in Secunderabad Club v.

Commissioner of Income-Tax reported in (2023) SCC OnLine

SC 1004 to submit that in terms of Article 141 of the Constitution,

only the ratio decidendi of a judgment, that is, the reason assigned

in support of the conclusion, is binding. He submitted that this

Court has held that what is binding, therefore, is the principle

underlying a decision which must be discerned in the context of the

question(s) involved in that case from which the decision takes its

colour. In a subsequent case, a decision cannot be relied upon in

support of a proposition that it did not decide. Therefore, the

context or the question, while considering which, a judgment has

been rendered assumes significance.

iii) He submitted that the obiter dictum of the Supreme Court is binding

under Article 141 to the extent of the observations on points raised

W.P. (C) No. 1239 of 2023 Page 48 of 414 and decided by the court in a case. Although the obiter dictum of

the Supreme Court is binding on all courts yet it only has persuasive

authority as far as the Supreme Court itself is concerned.

iv) He further submitted that a decision is not an authority for what can

be read into it by implication or by assigning an assumed intention

of the judges and inferring from it a proposition of law which the

judges have not specifically or expressly laid down in the

pronouncement.

v) Lastly, he submitted that even if the decision in Valluri Basavaiah

Chowdhary (supra) is interpreted as a binding precedent, still such

interpretation of the Article 200 would fall foul of the intention

envisaged by the Constituent Assembly.

f) Role of the President under Article 201.

i) On the aspect of the position of the President under Article 201, he

submitted that the President is not required to mandatorily assent to

the bill that is presented to him for his consideration after being

repassed by the State Legislature, once such bill has been sent back

by the President under the proviso to Article 201 in the first

instance.

W.P. (C) No. 1239 of 2023 Page 49 of 414

ii) It was submitted that Article 201 does not contain the expression

“shall not withhold assent therefrom” in the proviso unlike the first

proviso to Article 200. He further submitted that this Court in

Kaiser-I-Hind (supra) had held that the assent of the President

envisaged under Articles 31-A, 31-C, 254(2) and 304(b) of the

Constitution respectively constitutes a distinct class and category

of its own and is different from the assent envisaged under Articles

111 of the President or Article 200 of the Governor. A bare perusal

of Article 201 indicates that even when the Houses of the State

Legislature re-pass the Bill and present it for consideration in terms

of the proviso to Article 201, there is no compulsion on the

President to accord assent.

iii) Just as the Governor, the President is also bound by the aid and

advice of his Council of Ministers under Article 201 of the

Constitution. Such absence of compulsion of the President to grant

assent to the Bill re-considered and repassed by the State

Legislative Assembly is also subject to the aid and advice of the

Council of Ministers. Whether the President should grant assent or

not would be subject to the aid and advice by the Council of

W.P. (C) No. 1239 of 2023 Page 50 of 414 Ministers. There is no individual discretion vested in the President

in granting or not granting the assent under Article 201.

g) Malice in law and malice in fact

i) He submitted that the Governor could be said to have committed

violence to the constitutional framework by not adhering to the

mandate under Article 200 of the Constitution and has also

attempted to render the present Writ Petition infructuous during its

pendency.

ii) It was submitted that when the Petitioner had approached this Court

initially, the Governor had kept 12 Bills pending. Thereafter, the

captioned Writ Petitions were heard by this Court on 10.11.2023

wherein it was observed that the present Writ Petition raised a

matter of serious concern and issued notice to the Union of India

represented by the Secretary to the Government in the Ministry of

Home Affairs. In light of the aforesaid, the Governor hastily on

13.11.2023 referred two Bills for the consideration of the President

and withheld assent simpliciter to the remaining 10 Bills. On

18.11.2023, a special session of Tamil Nadu Legislative Assembly

was held and the 10 Bills were reconsidered and passed in the

Assembly. These Bills were sent to the Governor for consideration

W.P. (C) No. 1239 of 2023 Page 51 of 414 on the same day itself. However, the Governor, with a view to

render the present petition infructuous, reserved the 10 Bills for the

consideration of the President.

iii) In the last, the learned counsel submitted that the action of the

Governor has been contrary to what was laid down by this Court in

S.R. Bommai (supra) wherein it was stated that the Governor is a

very high Constitutional functionary and he is supposed to act fairly

and honestly, in a manner consistent with his oath. It is for this

reason that Article 356 places such implicit faith on his report. If,

however, in a given case his report is vitiated by legal mala fides,

it is bound to vitiate the President's action as well.

33. Mr. P. Wilson, the learned Senior Counsel, made extensive submissions on

behalf of the petitioner. For the sake of brevity, we are recording only those

submissions which are in addition to the points already canvassed by Mr.

Dwivedi and Mr. Singhvi respectively:

i) The Constituent Assembly after long and detailed debates decided to

have a nominated Governor in place of an elected Governor and

consciously deleted all expressions from the Draft Constitution which

conferred individual discretion on the Governor. He referred to certain

W.P. (C) No. 1239 of 2023 Page 52 of 414 portions of the report of the Sarkaria Commission in support of his

arguments.

ii) Article 91 of the Draft Constitution, 1948 which enumerated the assent

to bills by the President, had postulated a time limit of six weeks for

the President to provide his assent to the bills presented to him by the

Houses of Parliament.

iii) Relying on the speech of Mr. T.T. Krishnamachari in the Constituent

Assembly, he submitted that Article 200, as finally enacted, does not

vest any discretion in the Governor to withhold a bill passed by the

Legislature except on the express aid and advice of the Council of

Ministers.

iv) He submitted that the Sarkaria Commission in its Report in Chapter V

had observed that the Governor may reserve a bill for the consideration

of President when it clearly violates Fundamental Rights or

transgresses other Constitutional limitations. The power to reserve

Bills could be used only in rare circumstances. In all other

circumstances, the Governor needs to abide by the aid and advice of

the Council of Ministers. Therefore, Article 200 does not confer

general discretion on the Governor but mandates him to act in

accordance with aid and advice of the Council of Ministers.

W.P. (C) No. 1239 of 2023 Page 53 of 414 v) He submitted that the fear anticipated by Shri H.V. Kamath as regards

the difficulties that may arise due to the use of the phrase “as soon as

possible” during the discussion on draft Article 91 is exactly what has

been happening in the States of Telangana, Punjab, Kerala as well as

in the petitioner State. Thus, this Court must intervene and put the

matter on quietus by declaring that it is deemed that assent has been

granted to the Bills and declare the action of reserving Bills for assent

of the President as ultra vires.

vi) He submitted that the 10 Bills which are the subject matter of present

Writ Petition were dealt with by the Governor during the pendency of

the Writ Petition in the manner referred to in paragraph 13 and 14

respectively of the third Amendment application in I.A. No. 216164

of 2024. Therefore, all unconstitutional acts of the Governor remain

for consideration by this Court as they are actions pendente lite and

this Court has the power to turn the clock back and restore status quo

ante.

ii. Submissions on behalf of the Respondents

34. Mr. R. Venkatramani, the learned Attorney General for India, appeared for

the respondents and submitted as follows:

W.P. (C) No. 1239 of 2023 Page 54 of 414 a. The Governor while acting under Article 200 is not acting in exercise of

ordinary discretion but is acting under a constitutional responsibility.

Thus, even if it is assumed that the Governor has no individual

discretion, he may still withhold assent to a bill as per his constitutional

obligation.

b. He submitted that having regard to the high level of responsibilities

entrusted to the Governor in dealing with Bills presented for his

consideration, the Governor may reach out to the Council of Ministers

for advice, in order to know the legislative intent, and be benefited as

well. However, when on the plain understanding of the bills, the

Governor finds constitutional contraventions, or seriously debatable

issues of the Constitution, he may apply his mind, with or without the

aid of the Council of Ministers. This principle of an area of

constitutional deliberation prior to the Governor taking any call under

Article 200, cannot be subjected to or put into any strait-jacket formula.

c. He submitted that when new issues and concerns of legislation involving

federal structure of the polity of the nation arise, it is important that the

role of the Governor is neither stretched beyond a point, nor should be

allowed to be diminished to a status of no consequence.

W.P. (C) No. 1239 of 2023 Page 55 of 414 d. He submitted that in the instant case, the Governor was persuaded by

the observations made in Valluri Basavaiah (supra), which suggest that

when assent is withheld, the Bill will cease to exist. However, if the

Governor chooses to follow the procedure under the first proviso,

wherever it will be of relevance and of importance to follow, then the

Governor would become bound by the mandatory stipulation enunciated

in the first proviso.

e. He submitted that the single-minded focus of the Governor was to

ensure that a repugnant law, if allowed to be on the statute book, would

open the scope for maladministration of universities and impede the

avowed object and purpose of excellence in higher education, placing

all power in the hands of the State Government as opposed to the

Chancellor. It is only with a view to avoid such a situation that the

Governor withheld assent to the Bills in question.

f. On the aspect of reservation of the bills for the consideration of the

President, he submitted that there is nothing in Article 200 that suggests

that the Governor ceases to have the authority to refer the matter to the

President after he has withheld assent to the bill in the first instance. If

this authority is available at the time of withholding of assent, the same

W.P. (C) No. 1239 of 2023 Page 56 of 414 cannot be taken away or not made available by the State Government

acting on their own motion under the first proviso.

g. In furtherance of the aforesaid submission, he submitted that for all

practical purposes, the Bills forwarded by the petitioner State on

18.11.2023 should not to be treated as sent by the Governor acting under

the first proviso. Bills that are sent outside the procedure contemplated

by the first proviso, would be open for consideration by the Governor

for any further course of action including, reference to the President. The

principle of power coupled with duty underlying Article 200 demands

that recourse to reference to President even after initial withholding of

assent by the Governor, be read into the Article, in order to make the

power effective to achieve its purpose.

h. He submitted that on a proper reading of the substantive part and the

first proviso to Article 200, it will be seen that four courses of actions

are available to the Governor. The observations made in the State of

Punjab (supra) decision may thus warrant a qualification, or

an additional statement to fine-tune the scope of Article 200.

i. On the issue as regards whether the first proviso is attracted in all

instances of withholding of assent, he submitted that the role for the first

proviso is confined to cases where the bill may not be hit by any

W.P. (C) No. 1239 of 2023 Page 57 of 414 constitutional limitation, is within the competence of the legislature, but

may admit of changes, amendments, etc. Such amendments or changes

that the Governor may thus suggest within the scope of the first proviso,

will not be relatable to matters such as repugnancy. With the perception

of repugnancy, the focus of the Governor will be outside the first

proviso. He argued that even though this Court in State of Punjab

(supra) has opined that the exercise of power under the first proviso is

relatable to the withholding of the assent by the Governor, yet this view

may require a further qualification that in the context of repugnancy,

unlike any other reason for withholding of assent, the Governor need not

necessarily proceed to act under the first proviso. The first proviso

perhaps cannot be read to be pressed into service when both the

Governor and the State Government understand the repugnancy

dimension. In the event the State Government desires to clear the

repugnancy or any other hurdle, it may itself seek the assent of the

President. In such an event the State Government may also ask the

Governor to refer the matter to the President for consideration.

j. He submitted that that in the present case as the President has withheld

assent to the Bills in question, therefore in terms of the statement of law

in Hoechst Pharamaceuticals (supra), the action of the President in

withholding assent is not justiciable. What cannot be directly done by

W.P. (C) No. 1239 of 2023 Page 58 of 414 seeking such justiciability cannot be indirectly achieved by the claim

that the action of the Governor in forwarding the bills in question to the

President was beyond his authority.

k. He submitted that the exposition of Article 200 as done in State of

Punjab (supra) is sub-silentio as the Court while making the said

decision did not take into account the observations made by the

Constitution Bench in Valluri Basavaiah (supra).

l. In the last, he submitted that the matter may be referred to a larger Bench

of this Court so as to harmonise the observations made in B.K. Pavitra

(supra), Valluri Basavaiah (supra) and State of Punjab (supra).

35. Mr. Vikramjit Banerjee, the learned Additional Solicitor General, appeared

for the respondents and submitted as follows:

a. A reading of Clause (1) of Article 163 categorically provides that the

Governor ordinarily is aided and advised by the Council of Ministers

headed by the Chief Minister, however, there is an express discretion

vested with the Governor for exercising functions under the Constitution

which permeates all of the provisions that require the Governor to

exercise his/her power, including Articles 200 and 201.

W.P. (C) No. 1239 of 2023 Page 59 of 414 b. Placing reliance on the decision of this Court in M.P. Special Police

(supra), he submitted that that the normal rule is that the Governor acts

on the aid and advice of the Council of Ministers and not independently

or contrary to it. But there are exceptions under which the Governor can

act in his own discretion and the exceptions are not exhaustive or limited

but differ as per the facts of each case. He further submitted that the

aforesaid decision recognised that the concept of the Governor acting in

his discretion or exercising independent judgment is not alien to the

Constitution. There may be situations where, by reason of peril to

democracy or democratic principles, an action may be compelled which

by its very nature is not amenable to Ministerial advice. An instance of

a situation curiously similar to the present case is discussed where bias

was inherent and manifest in the advice of the Council of Ministers as

the proposed bills sought to fundamentally encroach into the role of the

Governor as the Chancellor by seeking to substitute “Chancellor” (who

is the appointing authority of Vice Chancellors and also the disciplinary

authority) with “Government”. The State Government has impugned the

notifications issued by the Governor (in the capacity of the Chancellor)

for constitution of Search Committees for appointment of Vice

Chancellors for State Universities. Additionally, the Bills were

effectively aimed at seeking to control the co-ordination and standards

W.P. (C) No. 1239 of 2023 Page 60 of 414 of higher and technical education/research which fall under Entry 66

of the Union List (under the Seventh Schedule of the Constitution).

c. Placing reliance on the decision of this Court in

Purushothaman Nambudiri v. State of Kerala reported in 1961 SCC

OnLine SC 361 he submitted that the idea of reading in a time limit in

Articles 200 and 201 respectively had been deliberated upon and

expressly rejected by this Court in the said decision.

C. ISSUES FOR CONSIDERATION

36. Having heard the learned counsel appearing for the parties and having gone

through the materials on record, the following questions of paramount

constitutional importance fall for our determination:

I) What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution?

i. Whether the first proviso could be said to provide an independent

course of action available to the Governor in addition to the three

options provided under the substantive part of Article 200?

ii. In what manner the expression “the Bill falls through unless the

procedure under the first proviso is followed”, as used in Valluri

Basavaiah Chowdhary (supra), should be construed?

W.P. (C) No. 1239 of 2023 Page 61 of 414 iii. Whether the decision of this Court in State of Punjab (supra)

could be said to be per incuriam for not having taken into

consideration the observations made in previous decisions

rendered by larger benches of this Court?

iv. Whether the scheme of Article 200 of the Constitution envisages

the exercise of ‘absolute veto’ or ‘pocket veto’ of a bill by the

Governor?

II) Whether the Governor can reserve a bill for the consideration of the President at the time when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance and had declared withholding of assent thereto?

i. Whether the reservation by the Governor, for the consideration of

the President of the ten Bills which were repassed by the Tamil

Nadu State Assembly and presented to the Governor on

18.11.2023, is erroneous in law and hence liable to be set aside?

III) Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution?

W.P. (C) No. 1239 of 2023 Page 62 of 414 i. How is the absence of an express time-limit in Article 200 to be

construed for ascertaining the manner in which the Governor is

expected to exercise his powers under the said provision?

ii. What is the import of the expression “as soon as possible”

appearing in the first proviso to Article 200?

iii. Whether a time-limit can be prescribed by this Court for ensuring

that the exercise of power by the Governor under Article 200 is in

conformity with the object of expediency underlying the scheme of

the said provision?

IV) Whether the Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers? If not, whether the constitutional scheme has vested the Governor with some discretion in discharge of his functions under Article 200? i. How has the role of the Governor been envisaged under the

constitutional scheme?

ii. Whether the Governor enjoys a certain degree of discretion in

discharge of his functions in contrast to the President? What is the

source of such discretion, if any?

iii. Whether the deletion of the expression “in his discretion” from

Article 175 of the Draft Constitution imply that the Governor has

W.P. (C) No. 1239 of 2023 Page 63 of 414 no discretion available in the exercise of his powers under Article

200?

iv. Whether the observations of this Court in B.K. Pavitra (supra) that

“a discretion is conferred upon the Governor to follow one of the

courses of action enunciated in the substantive part of Article 200”

could be said to be per incuriam for having failed to notice the

position of law as laid down by the larger Benches of this Court?

V) Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 could be said to be subject to judicial review? If yes, what are the parameters for such judicial review?

i. Whether the discharge of functions by the Governor under Article

200 of the Constitution in his discretion could be said to be immune

from judicial review?

ii. Whether the withholding of assent by the President under Article

201 of the Constitution could also be said to be beyond the scope

of judicial scrutiny?

iii. If the aforesaid discharge of functions is subject to judicial review,

whether such discharge of functions could be said to be non-

justiciable in light of the decisions of this Court in Hoechst

(supra), Kaiser-I-Hind (supra), and B.K. Pavitra (supra)?

W.P. (C) No. 1239 of 2023 Page 64 of 414 VI) What is the manner in which the President under Article 201 of the Constitution is required to act once a bill has been reserved for his consideration by the Governor under Article 200 of the Constitution?

i. Whether the decision of the President to withhold assent under

Article 201 of the Constitution could be said to be justiciable? If

yes, what is the extent of justiciability that the courts can embark

upon while undertaking judicial review of the exercise of powers

by the President under Article 201 of the Constitution?

D. ASSENT TO BILLS – HISTORICAL BACKGROUND

37. Article 200 appears in Chapter III of Part VI of the Constitution under the

heading Legislative Procedure. Part VI deals with the States and Chapter III

deals with the State Legislature. The marginal note attached to Article 200

reads “Assent to Bills” and the article reads as follows:

“200. Assent to Bills. – When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that

W.P. (C) No. 1239 of 2023 Page 65 of 414 the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

38. Section 75 of the Government of India Act, 1935 (for short, “the GoI Act,

1935”) upon which the Article 200 has been substantially modelled is

reproduced hereinbelow:

“75. Assent to Bills. – A Bill which has been passed by the Provincial Legislative Assembly or, in the case of a Province having a Legislative Council, has been passed by both Chambers of the Provincial Legislature, shall be presented to the Governor, and the Governor in his discretion shall declare either that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the Governor General :

Provided that the Governor may in his discretion return the Bill together with a message requesting that the Chamber or Chambers will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in

W.P. (C) No. 1239 of 2023 Page 66 of 414 his message and, when a Bill is so returned, the Chamber or Chambers shall reconsider it accordingly.”

39. A perusal of both the aforesaid provisions indicates that Article 200 of the

Constitution corresponds to Section 75 of the GoI Act, 1935 except for the

following differences:

a. The expression “in his discretion” has been omitted from both the

substantive part of Article 200 as well as the first proviso thereto.

b. The Governor under Article 200 assents to the bill in his own name

unlike Section 75 wherein the assent was to be granted in the name

of the Crown.

c. The expression “if the Bill is passed again by the House or Houses

with or without amendment and presented to the Governor for

assent, the Governor shall not withhold assent therefrom” has been

added to the first proviso to Article 200.

d. The second proviso is a further addition to Article 200 and did not

exist in Section 75 referred to above.

40. D.D. Basu in his Commentary on the Constitution of India (pp. 6311, 8th

Ed., 2009) has observed that the omission of the expression “in his

discretion” from Article 200 signifies that the Governor must exercise his

power under the Article according to the advice of his ministers. Further, the

W.P. (C) No. 1239 of 2023 Page 67 of 414 addition of the expression “shall not withhold assent therefrom” indicates

that the Governor has no power to veto a reconsidered bill and must assent

to it whether it is passed in the original form or with amendments.

41. Article 200 is divided into three parts - the substantive part and two provisos.

A perusal of the substantive part of Article 200 indicates that the

presentation of a bill to the Governor is mandatory after it is passed by the

State legislature. The same is made evident from the use of the expression

“it shall be presented to the Governor”. In the same breath, Article 200

makes it mandatory for the Governor to make one of the following

declarations:

a. That he assents to the bill; or

b. That he withholds assent to the bill; or

c. That he reserves the bill for the consideration of the President.

42. It is important to note that the expression “shall” has been used to qualify

the three types of declarations that the Governor can make upon presentation

of the bill to him. Further, the three options provided in the substantive part

of Article 200 are connected by the conjunction “or” which signifies that the

three options are mutually exclusive of each other, and the Governor can

only choose one of them at a time. In other words, the Governor cannot

assent to a bill and also reserve it for the consideration of the President at

W.P. (C) No. 1239 of 2023 Page 68 of 414 the same time. Similarly, the Governor cannot declare that he withholds

assent and also reserve the bill for the consideration of the President at the

same time. Patanjali Sastri, Chief Justice (as he then was), observed to this

effect in State of Bihar v. Kameshwar Singh reported in (1952) 1 SCC 528

as follows:

“20. […] It is significant that the article does not contemplate the Governor giving his assent and thereafter, when the Bill has become a full-fledged law, reserving it for the consideration of the President. Indeed, the Governor is prohibited from giving his assent where such reservation by him is made compulsory. The Constitution would thus seem to contemplate only “Bills” passed by the House or Houses of Legislature being reserved for the consideration of the President and not “laws” to which the Governor has already given his assent. […]

Similarly, Article 31(3) must, in my judgment, be understood as having reference to what, in historical sequence, having been passed by the House or Houses of the State Legislature and reserved by the Governor for the consideration of the President and assented to by the latter, has thus become a law. If it was intended that such a law should have the assent of both the Governor and the President, one would expect to find not only a more clear or explicit provision to that effect, but also some reference in Article 200 to the Governor's power to reserve a measure for the consideration of the President after himself assenting to it. On the other hand, as we have seen, where reservation by the Governor is made obligatory, he is prohibited from giving his assent.”

(Emphasis supplied)

W.P. (C) No. 1239 of 2023 Page 69 of 414

43. The first proviso to Article 200 has no application to Money Bills. For all

other bills, it provides that the Governor may, as soon as possible after the

presentation of the bill to him for assent, return the bill to the House or

Houses along with a message requesting the House or the Houses to

reconsider the bill in totality or certain provisions thereof. He may also

recommend the introduction of certain amendments to the bill. The first

proviso further states that when a bill is returned with such a message, then

the House or the Houses must reconsider the bill accordingly and if the bill

is passed with or without amendments and presented to the Governor for

assent, he shall not withhold assent therefrom.

44. The second proviso to Article 200 provides that if the Governor is of the

opinion that a bill which is presented to him for assent would, upon

becoming law, so derogate from the powers of the High Court as to endanger

the position which that Court is designed to fill by the Constitution, then he

must reserve the bill for the consideration of the President and not grant

assent to it.

45. The heart of the controversy before us lies in the interpretation of the

substantive part of Article 200 and the first proviso to it. The arguments

advanced before us coupled with the factual situation which we are

confronted with, and the broader constitutional and political consequences

W.P. (C) No. 1239 of 2023 Page 70 of 414 that an interpretation of Article 200 entails, has opened up before us a

treasure trove of questions hidden in the seemingly innocuous and plain

language used in Article 200.

46. For a better understanding of Article 200, it is necessary that we should first

understand the concept of assent to bills, how it has evolved over the

centuries and its importance in parliamentary democracies across the globe.

We are undertaking this exercise as Article 200 cannot be understood fully

without having regard to the context in which it came to be included in the

Constitution. While fidelity to the text of the provision holds paramount

consideration in its interpretation, the context is equally, if not more,

important, more so in light of the fact that Article 200, as its stands today,

bears striking resemblance to Section 75 of the GoI Act, 1935 and other

important historical documents which were being drafted by Indians during

the course of the freedom struggle.

47. In Westminster styled polities, the Parliament consists of a lower House, an

upper House and the head of state. The Indian Constitution has also broadly

adopted a similar structure, which becomes evident from Articles 79 and 168

respectively. Article 79 provides that the Parliament shall consist of the

President and two Houses - the Council of States and the House of the

People. Article 168 provides that each State shall have a Legislature which

W.P. (C) No. 1239 of 2023 Page 71 of 414 shall comprise of the Governor and either one or two House(s), as the case

may be. In the Westminster system, for a law to be passed by the Parliament,

it must receive the approval of all the three elements - the Lower House, the

Upper House and the Head of the State.

48. Jessica J. Richardson2 in her paper titled “Modernisation of Royal Assent in

Canada”, has traced the historical origins of the practice of granting assent

to bills enacted by the Parliament in the United Kingdom. She has explained

that the practice of signifying royal assent to bills passed by Parliament

began during the reign of Henry VI (1422-71), when the practice of

introducing bills in the form of petitions was replaced by bills in the form of

complete statutes. This was a time when assent was granted in person. The

Sovereign would attend the Parliament in the House of Lords and give his

consent in person. This practice continued until 1541, when the task of

signifying royal assent was assigned to a Royal Commission in order to

spare King Henry VIII the indignity of having to give royal assent to the Bill

of Attainder, which provided for the execution of his wife Catherine

Howard. It was after this occurrence that the practice of appointing Lords

Commissioners responsible for giving royal assent developed. In the United

Kingdom, the last instance of a monarch giving royal assent in person was

2 Jessica J. Richardson, Modernisation of Royal Assent in Canada, 27 CAN. PARLIAM. REV.2, 32 (2004), <http://www.revparl.ca/27/2/27n2_04e_Richardson.pdf>.

W.P. (C) No. 1239 of 2023 Page 72 of 414 in 1854 when Queen Victoria personally assented to several bills prior to

proroguing the Parliament. However, in Canada, King George VI gave royal

assent in person to bills passed by the Canadian Parliament in 1939 during

a visit to Canada. The use of a royal assent ceremony continued in the United

Kingdom until 1967, when the British Parliament passed the Royal Assent

Act, 1967. The said legislation repealed the Royal Assent by Commission

Act, 1541 and allowed a simple report of royal assent by the Speakers of the

two Houses to give a bill the force of law.

49. In the Canadian context, she explains that the royal assent ceremony was

inherited from the United Kingdom tradition and was used prior to

Confederation in both Lower and Upper Canada and closely resembled the

original ceremony used in the United Kingdom. Prior to adoption of the new

procedure in 2002, Canada was the only remaining Commonwealth country

to still use the traditional ceremony for royal assent. However, taking

inspiration from the practice prevailing in other Commonwealth countries

including Australia and New Zealand, as well as several Canadian

provinces, the royal assent procedure was modernised by adopting a written

declaration procedure.

50. One of the first instances where the concept of assent to bills appears in a

documented form in the Indian context is the Constitution of India Bill, 1895

W.P. (C) No. 1239 of 2023 Page 73 of 414 which is also popularly referred to as the Swaraj Bill. The Bill, which is also

termed by the academics as the first articulation of a constitutional

imagination by Indians, besides incorporating ideas of free speech, equality

before law, right to property, etc., also envisaged a machinery of governance

and separation of powers, albeit within the British Empire. As regards the

legislative structure, the Bill proposed that the Sovereign of Great Britain

shall reign and rule over India and the Viceroy shall be the representative of

the Sovereign in India. It further envisaged that the Viceroy would be the

President of the Parliament and would have the power to veto any law

enacted by the Indian Parliament and initiate legislation. Article 97 of the

Bill provided that no bill would become law until it received the sanction of

the Sovereign. The said provision is reproduced hereinbelow:

“97. No Bill shall become law unless it has passed by majority through the Lower House three times and the Upper House three times and unless it has obtained the sanction of the Sovereign.”

51. A few years after the ideation of the Swaraj Bill, the demand for self-

government further found expression in the Congress-League Scheme of

1916 which was a result of deliberations of the committees constituted

jointly by the Indian National Congress and the All India Muslim League.

The document envisioned a federal polity - with Provincial Legislative

Councils for the provinces and an Imperial Legislative Council at the

W.P. (C) No. 1239 of 2023 Page 74 of 414 national level. It is pertinent to note that as per the scheme, the Governor

was envisaged as the head of the provincial government and any bill passed

by the provincial legislature had to mandatorily receive his assent before it

became law. Further, the document also conferred upon the Governor-

General the power of vetoing any law passed by the provincial legislature.

Any bill passed by the Imperial Legislative Council had to receive the assent

of the Governor-General before it became law. The relevant provisions in

the said document are reproduced hereinbelow:

“I. Provincial Legislative Councils

xxx xxx xxx

9. A Bill, other than a Money Bill, may be introduced in Council in accordance with rules made in that behalf by the Council itself and the consent of the Government should not be required therefor.

II. Provincial Governments

1. The head of every Provincial Government shall be a Governor who shall not ordinarily belong to the Indian Civil Service or any of the permanent services.

xxx xxx xxx

III. Imperial Legislative Council

xxx xxx xxx

9. All Bills passed by the Council shall have to receive the assent of the Governor-General before they become law.”

W.P. (C) No. 1239 of 2023 Page 75 of 414

52. In the backdrop of the growing demand for self-government by the Indian

National Movement and the Montagu-Chelmsford Report, the Government

of India Act, 1919 (for short, “the GoI Act, 1919”) was enacted and received

assent of the British Crown in December, 1919. The legislation introduced

dyarchy at the provincial level, by the introduction of the transferred list and

the reserved list. The reserved list consisted of the subject matters on which

the Governor enjoyed exclusive legislative powers. However, what we wish

to draw attention to is the provision contained in the said legislation as

regards assent to bills. Section 12 provided that the Governor had four

options to choose from when a bill was presented to him for assent - to

declare assent, to withhold assent, to return the bill to the council for

reconsideration or to reserve the bill for the consideration of the Governor-

General. Notably, there was no requirement for the Governor to mandatorily

assent to a bill upon its presentation after reconsideration. Further, the

Governor had the power to veto any bill passed by the legislative council by

a declaration simplicter of withholding of assent. There was also a provision

for the lapse of a bill reserved for the consideration of the Governor-General

if assent was not granted within a period of six months. Thus, the concept of

both absolute and pocket veto could be said to have been available to the

Governor and the Governor-General under the provisions of the GoI Act,

1919. The relevant provision is reproduced hereinbelow:

“12. Return and reservation of Bills. –

W.P. (C) No. 1239 of 2023 Page 76 of 414 (1) Where a Bill has been passed by a local legislative council, the governor, lieutenant-governor or chief commissioner may, instead of declaring that he assents to or withholds his assent from the Bill, return the Bill to the council for reconsideration, either in whole or in part, together with any amendments which he may recommend, or, in cases prescribed by rules under the principal Act may, and if the rules so require shall, reserve the Bill for the consideration of the Governor-General.

(2) Where a Bill is reserved for the consideration of the Governor-General, the following provisions shall apply:-

(a) The governor, lieutenant-governor or chief commissioner may, at any time within six months from the date of the reservation of the Bill, with the consent of the Governor- General, return the Bill for further consideration by the council with a recommendation that the council shall consider amendments thereto:

(b) After any Bill so returned has been further considered by the council, together with any recommendations made by the governor, lieutenant-

governor or chief commissioner relating thereto, the Bill, if re-affirmed with or without amendment, may be again presented to the governor, lieutenant-

governor, or chief commissioner:

(c) Any Bill reserved for the consideration of the Governor-General shall, if assented to by the Governor-General within a period of six months from the date of such reservation, become law on due publication of such assent, in the same way as a Bill assented to by the governor, lieutenant-governor or chief commissioner, but, if not assented to by the Governor-General within such period of six months,

W.P. (C) No. 1239 of 2023 Page 77 of 414 shall lapse and be of no effect unless before the expiration of that period either-

(i) the Bill has been returned by the governor, lieutenant-governor or chief commissioner, for further consideration by the council; or

(ii) in the case of the council not being in session, a notification has been published of an intention so to return the Bill at the commencement of the next session.

(3) The Governor-General may (except where the Bill has been reserved for his consideration), instead of assenting to or withholding his assent from any Act passed by a local legislature, declare that he reserves the Act for the signification of His Majesty’s pleasure thereon, and in such case the Act shall not have validity until His Majesty in Council has signified his assent and his assent has been notified by the Governor- General.”

53. A reading of the aforesaid provision also indicates that at the time of drafting

Article 200, the framers of the Constitution not only had before them Section

75 of the GoI Act, 1935 but also Section 12 of the GoI Act, 1919 as well as

other possible variations about which we shall discuss in the following

paragraphs. However, certain features of Article 200, namely, the absence

of automatic lapse upon not receiving approval, mandatory requirement for

the Governor to not withhold assent to a bill which is presented to him after

being reconsidered by the legislature and absence of the expression “in his

discretion”, must be viewed in the context of gradual dilution of the role and

W.P. (C) No. 1239 of 2023 Page 78 of 414 powers of the Governor in provincial governance as the country neared

independence.

i. Concept of assent to bills as envisaged by certain historical documents drafted during the freedom struggle.

54. The concept of assent by the Sovereign found mention in Section 75 of the

GoI Act, 1935 and Article 200 as it stands today is predominantly modelled

according to the version which existed therein. However, before we proceed

to discuss Section 75 of the GoI Act, 1935 and how it eventually evolved

into Article 200 of the Constitution, we deem it appropriate to briefly shed

light on how other aspirational constitutional documents, drafted during the

course of the freedom struggle, imagined the practice of assent to bills and

made certain modifications to the practice that prevailed in the United

Kingdom.

55. The Commonwealth of India Bill, 1925 that was drafted by the National

Convention had a lasting impact on the eventual framing of our Constitution

as regards the idea of royal assent. Article 39 of the said Bill provided that a

bill passed by the Parliament would be presented to the Viceroy for

obtaining the King’s assent. Similarly, for the provinces, Article 83 provided

that the bills passed by the provincial legislature would be presented to the

Governor for obtaining the King’s assent. However, what is relevant to note

W.P. (C) No. 1239 of 2023 Page 79 of 414 is that the provisions were not elaborate as regards the procedure and scope

of powers of the Sovereign while taking a decision on the aspect of assent.

56. However, the Nehru Report of 1928 shortly followed the Commonwealth of

India Bill, 1925 and was drafted in response to the dissatisfaction with the

Simon Commission. The Report sought to negative the challenge posed by

the British that a constitutional document, which is agreeable to all, could

not be drawn by Indians, and contained elaborate provisions providing the

mechanism for the purpose of assent to bills.

57. As regards the bills passed by the Parliament, it was stipulated in the Nehru

Report that a bill would not become an Act until assent was granted by the

Governor-General. The Governor-General was provided with three options

- to signify assent, to withhold assent or to reserve the bill for consideration

by the British Crown. Notably, there was no obligation on the Governor-

General to signify assent after a bill was repassed with or without the

amendments suggested by him. The relevant provision is reproduced

hereinbelow:

“21. (i) So soon as any bill, shall have been passed, or deemed to have been passed by both Houses, it shall be presented to the Governor-General for the signification by him, in the King’s name, of the King’s assent, and the Governor-General may signify such assent or withhold the same or he may reserve the bill for the signification of the King’s pleasure.

W.P. (C) No. 1239 of 2023 Page 80 of 414 (ii) A bill passed by both Houses of Parliament shall not become an Act until the Governor-General signifies his assent thereto in the King’s name or in the case of a bill reserved for the signification of the King’s pleasure until he signifies by speech or message to each House of Parliament, or by proclamation that it has received the assent of the King in Council. Provided that the Governor-General may, where a bill has been passed by both Houses of Parliament and presented to him for the signification by him of the King’s assent, or has been reserved by him for the signification of the King’s pleasure, return the bill for reconsideration by Parliament with a recommendation that Parliament shall consider amendments thereto.

(iii) Any bill so returned shall be further considered by Parliament together with the amendments, recommended by the Governor-General, and if re-affirmed with or without amendments, may be again presented to the Governor-

General for the signification in the King’s name of the King’s assent.”

58. As regards the provincial legislature, a bill passed by the provincial

legislature had to be assented to by the Governor before it would become an

Act. The Governor had two options - to declare assent or to withhold assent.

Notably, the Governor did not have the option to reserve the bill for the

consideration of the Governor-General. However, every bill after receiving

the assent of the Governor had to be mandatorily referred to and assented by

the Governor-General failing which the Act would have no validity. Even

after receiving the assent of the Governor-General, the Act could be

W.P. (C) No. 1239 of 2023 Page 81 of 414 disallowed by the King and would thereupon become void. The relevant

provisions are reproduced hereinbelow:

“37. When a bill has been passed by a local Legislative Council, the Governor may declare that he assents to or withholds his assent from the bill.

38. If the Governor withholds his assent from any such bill, the bill shall not become an Act.

39. If the Governor assents to any such bill, he shall forthwith send an authentic copy of the Act to the Governor-General, and the Act shall not have validity until the Governor-

General has assented thereto and that assent has been signified by the Governor-General to, and published by the Governor.

40. Where the Governor-General withholds his assent from any such Act, he shall signify to the Governor in writing his reason for so withholding his assent.

41. When an Act has been assented to by the Governor-

General it shall be lawful for His Majesty in Council to signify his disallowance of the Act.

42. Where the disallowance of an Act has been so signified, the Governor shall forthwith notify the disallowance, and thereupon the Act, as from the date of the notification shall become void accordingly.”

59. In 1944, the All India Hindu Mahasabha adopted the Constitution of

Hindustan Free State Act as an aspirational constitutional document. As

W.P. (C) No. 1239 of 2023 Page 82 of 414 regards the procedure of assent by Governor in provinces, the document

contained the following provision:

“93. (1) So soon as any bill shall have been passed by both Chambers it shall be presented to the Governor for the signification of his assent, and he may signify such assent or withhold the same.

(2) A bill passed by both Chambers shall become an Act if the Governor signifies his assent thereto, and that assent has been published by him.

(3) In case where the Governor withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration with his own recommendations thereto.

(4) A bill so returned shall be further considered by both Chambers together with the recommendations made by the Governor, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been assented to by the Governor, but it shall not become an Act unless and until the President of the Hindusthan Free State has assented thereto and that assent has been signified by the President to and published by the Governor.”

60. A perusal of the above indicates that the Governor had the option of either

assenting to or withholding a bill presented before him. However, in the

latter case, the Governor was under an obligation to return the bill for

reconsideration with his own recommendations, whereupon the provincial

legislature was required to reconsider the bill in light of the

recommendations made. Upon being passed again, with or without

amendments, the bill would be deemed to have been assented to by the

W.P. (C) No. 1239 of 2023 Page 83 of 414 Governor. However, it would become an Act only upon being assented to

by the President, who would signify his assent to the Governor. Thus, the

President was vested with the power to veto any bill which had not been

assented to by the Governor and was passed again after reconsideration with

or without the amendments recommended by the Governor. This was in

contrast to the position with respect to the Federal Legislature, wherein no

veto power was conferred on the President. The relevant provision read as

follows:

“30. (1) So soon as any bill shall have been passed by both Chambers, it shall be presented to the President for the signification of his assent, and he may signify such assent or withhold the same.

(2) A bill passed by both chambers shall not become an Act unless and until the President signifies his assent thereto.

(3) In case where the President withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration to the originating Chamber with his own amendments thereto.

(4) A bill so returned shall be further considered by both Chambers together with the amendments recommended by the President, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been assented to by the President and shall become an Act.”

61. One more document that we would like to refer to is the “Constitution of

Free India: A Draft” authored by M.N. Roy in 1944. The document proposed

W.P. (C) No. 1239 of 2023 Page 84 of 414 a radically different version of assent to bills as distinguished from the

scheme prevailing under the GoI Act, 1935 or other contemporaneous

aspirational constitutional documents. The document vested no authority in

the Governor to withhold assent to a bill passed by the provincial legislature

or to veto the same. However, the document vested power in the Supreme

People’s Legislature, which was a joint sitting of both the chambers of the

Federal Legislature, to veto any provincial legislation. However, this veto

power was subject to judicial review and the provincial government was

given the right to challenge the veto before the Supreme Federal Court. The

relevant provisions are reproduced hereinbelow:

“Article 62.

The Supreme People’s Council will have the right to veto any provincial legislation in the Federal Union on the ground that it is repugnant to the Federal Constitution or contradicts any particular Federal law. Either on the advice of the Council of Ministers or on his own initiative, the Governor General will recommend the vetoing of a Provincial legislation. The Provincial Government concerned will have the right to appeal to the Supreme Federal Court against the veto.

xxx xxx xxx

Article 91.

The Governor shall sign and promulgate all laws made by the Provincial People’s Council.”

62. What is interesting to note is that the imagination of a provision as regards

assent to bills, when the country was on the brink of becoming independent

W.P. (C) No. 1239 of 2023 Page 85 of 414 from the British rule, was significantly different from the previous versions

envisaged in times when the freedom struggle was focused more on

obtaining greater degree of self-rule while being under the sovereignty of

the British Crown, as can be seen in the versions used in the Nehru Report

and the Constitution of India Bill, 1925. The two documents which were

drafted in 1944, and are referred to above, indicate that the Governor was

vested with lesser powers and discretion, and there was a clear inclination

towards a more unitary arrangement insofar as assent to bills was concerned.

The ideas of judicial review of exercise of veto by the President against a

state legislation, mandatory return of the bills for reconsideration upon

withholding of assent, and deemed assent upon reconsideration were being

experimented with among others in the immediate lead up to the framing of

our Constitution.

63. Besides the aspirational constitutional documents referred to above, it is also

pertinent to discuss how assent was envisaged by one of the first indigenous

constitutional documents that was implemented in practice as well. Section

15 of the Aundh State Constitution Act, 1939 that was purportedly enacted

to grant self-rule to the people of the Aundh princely state, laid down the

procedure for assent to bills. The relevant provision read as follows:

“15. (a) All bills shall be passed by a majority of members of the Legislative Assembly present and voting and shall

W.P. (C) No. 1239 of 2023 Page 86 of 414 become law only on receiving the assent of Shrimant Rajasaheb.

(b) If Shrimant Rajasahab, in his discretion, withholds his assent to a bill which has been duly passed by the Legislative Assembly, he shall return it to the Legislative Assembly together with a message requesting that the Legislative Assembly will reconsider the Bill in the light of his recommendations, and when a bill is so returned, the Legislative Assembly shall consider it accordingly.

(c) If the Legislative Assembly accepts the recommendations, the bill shall forthwith become law; but if it rejects the recommendations of Shrimant Rajasaheb, he shall have the right to postpone his assent to the bill till the next session of the Legislative Assembly. He can so postpone the said bill for not more than three times. If the said bill, in its original form, is passed by a simple majority of the members present on all the three times, it is sent for reconsideration, it shall forthwith become law.”

64. What is interesting to note in the aforesaid provision is that although it vested

Shrimant Rajasaheb, the King, with the discretion to either assent to a bill

passed by the legislature or to withhold assent thereto, yet it made it

mandatory for him to return the bill to the legislature with a message

requesting them to reconsider the bill in light of his recommendations if he

opted for withholding assent. Further, after a maximum of three rounds of

reconsideration, the bill would become law upon being passed with a

majority, regardless of receiving assent of the King or not.

W.P. (C) No. 1239 of 2023 Page 87 of 414 65. On the contrary, the Government of Mysore Act, 1940, gave the King

unfettered powers to veto any bill passed by the Legislative Council. The

relevant provision reads as follows:

“28. (1) When a Bill has been passed by the Legislative Council, it shall be submitted through the Dewan to His Highness the Maharaja for assent with a statement of the opinion expressed by the Representative Assembly on the principles of the Bill or its general provisions.

(2) No such Bill shall become law until it has received the assent of His Highness the Maharaja.”

66. Having discussed in detail the inception of the concept of assent to bills in

the Indian context and its interaction with the indigenous thought prevailing

at the time, we shall now proceed to discuss the provisions pertaining to

assent as contained in the GoI Act, 1935 and how it was moulded by the

Constituent Assembly into Article 200 of the Constitution.

67. Under the GoI Act, 1935, the Governor was required to act on the aid and

advice of the Council of Ministers responsible to the Provincial legislature.

However, the Governor continued to have some special responsibilities and

he also possessed discretionary powers to act in situations such as prevention

of grave menace to the peace or tranquility of the province, safeguarding the

legitimate interests of minorities and so on. The Governor could also act in

his discretion in specified matters. He functioned under the general

W.P. (C) No. 1239 of 2023 Page 88 of 414 superintendence and control of the Governor-General, whenever he acted in

his individual judgement or discretion.

68. It is interesting to note that while the framing of the Constitution was being

undertaken by the Constituent Assembly, the GoI Act, 1935 as adapted by

the India (Provisional Constitution) Order, 1947 was made applicable for

the administration of the country. By way of paragraph 3 of the said order,

the expressions “in his discretion”, “acting in his discretion” and “exercising

his individual judgement” were removed/deleted from wherever they

occurred in the GoI Act, 1935. Paragraph 3 read thus:

“3.(1) As from the appointed day, the Government of India Act, 1935, including the provisions of that Act which have not come into force before the appointed day, and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions, additions, adaptations and modifications directed in the following provisions of this paragraph and in the Schedule to this Order.

(2) The following expressions shall be omitted wherever they occur, namely, “in his discretion”, “acting in his discretion” and “exercising his individual judgment”. [...]”

69. Article 147 of the Draft Constitution, prepared by the constitutional adviser,

Shri B.N. Rau, dealt with assent to bills passed by the provincial legislature

and read as follows:

W.P. (C) No. 1239 of 2023 Page 89 of 414

“147. A Bill which has been passed by the Provincial Legislature or, in the case of a Province having a legislative Council, has been passed by both Houses of the Provincial Legislature shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that where there is only one House of the Legislature of a Province and the Bill has been passed by that House the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will reconsider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House shall reconsider it accordingly and if the Bill is passed again by the House with or without amendments and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”

70. Article 147 as reproduced aforesaid made significant departure from Section

75 of the GoI Act, 1935 as follows:

a. The expression “in his discretion” was removed from the substantive

part of the provision. However, the said expression continued to be

present in the proviso to the substantive part.

b. While Section 75 of the GoI Act, 1935 provided for the sending back

of a bill for reconsideration by the legislature in the provinces having

both unicameral and bicameral legislatures, Article 147 only

provided for such reconsideration in the provinces with a unicameral

legislature.

W.P. (C) No. 1239 of 2023 Page 90 of 414 c. Under Section 75, there was no mandate upon the Governor to

mandatorily assent to a bill when the bill was presented to him for

reconsideration. However, in Article 147, the expression “shall not

withhold assent therefrom” was added in the first proviso.

71. Four months after the Draft Constitution was submitted by Shri B.N. Rau,

the Drafting Committee under the chairmanship of Dr. B.R. Ambedkar

submitted the Draft Constitution to the President of the Constituent

Assembly in February, 1948. Article 147 of the Draft Constitution submitted

by the constitutional advisor was adapted with certain structural

modifications as Article 175 of the Draft Constitution, however, in essence

the provision remained the same.

ii. Debates of the Constituent Assembly on Article 200 of the Constitution

72. When Article 175 of the Draft Constitution, 1948 was taken up for

consideration by the Constituent Assembly, certain amendments were

moved by Dr. B.R. Ambedkar that came to be accepted, leading to the

adoption of the draft Article 175 as Article 200 of our Constitution. The

amendments were:

a. To remove the expression “in his discretion” appearing in the first

proviso to Article 175;

b. To exclude Money Bills from the purview of the first proviso;

W.P. (C) No. 1239 of 2023 Page 91 of 414 c. To enable the Governor to return the bills in all the States

irrespective of whether there was a unicameral or a bicameral

legislature.

73. With a view to better understand the intention of the framers of the

Constitution, it is of utmost importance that we turn the pages of the debates

that took place in the Constituent Assembly.

74. On the 30th of July, 1949, Dr. B.R. Ambedkar moved an amendment, as

discussed aforesaid, for the substitution of the first proviso under draft

Article 175, which later came to be successfully adopted by the Constituent

Assembly. While moving for the substitution and highlighting that

predominantly three key changes were sought to be made to the first proviso,

he remarked that the words “in his discretion” under the draft Article 175

were sought to be deleted because it was felt that “in a responsible

government, there can be no room for the Governor acting on discretion”3.

Shri. Brajeshwar Prasad was not whole-heartedly in favor of the changes

suggested to the first proviso and contended that they would strip the

Governor of the power to veto a bill or reserve it for the consideration of the

President, in his own discretion or initiative and he would be able to do so

3 9, CONSTITUENT ASSEMB. DEB., (July 30, 1949) 41.

W.P. (C) No. 1239 of 2023 Page 92 of 414 only when so advised by his Cabinet of Ministers. In his opinion, the change

also meant that the Governor would not be able to veto a bill that has been

passed twice by the Legislative Assembly, which he felt was not acceptable.

75. Shri. Brajeshwar Prasad acknowledged that there are two classes of cases in

which a bill can be reserved for the consideration of the President – One,

where a certain Article of the Constitution requires the same and two, when

the Governor is advised by his Ministry to do so. However, he advocated for

a third category i.e., where the Governor would possess the power, in his

discretion, to veto a bill passed by the Legislature, irrespective of whether it

was passed once or twice by it. He supported the vesting of discretion in the

hands of the Governor so that he could veto unjust and unsound legislation

while also ensuring that there is a check on potentially disruptive legislative

tendencies. From his standpoint, the fear of disruptive legislation was not

imaginary but real in our country and he advocated that his proposal was in

consonance with the traditions of the centralized system of Government that

existed in our country until independence. He was of the view that the

parliamentary form of polity was a new experiment to the facts of life in our

country and it was required to be moderated and regulated. Expressing his

lack of confidence in the provincial Ministers, he contended that

empowering the Governor to act in his discretion would not be so

objectionable since the Governor is also the representative of the

W.P. (C) No. 1239 of 2023 Page 93 of 414 Government of India and it is by virtue of this position that his views must

prevail over those of the State legislature.

76. On the other hand, during the course of the debate, Shri. Shibban Lal Saxena,

addressed the practical realities of assigning such a discretion to the

Governor who is a nominee of the President, especially when the party in

power in the province may not be the same as the party in power at the

Centre. In such a scenario, it was his opinion that, “it will introduce a very

wrong principle to give the Governor this power to go against the express

wish of the Assembly and even of the council”4.

77. Shri. T.T. Krishnamachari also emphasized that under the newly proposed

draft Article 175, more specifically the first proviso, the Governor will not

be exercising his discretion in the matter of referring a bill back to the House

with a message. The Governor would exercise his power under the first

proviso only upon the advice of his Council of Ministers. According to him,

the first proviso was to be exercised in situations wherein the House has

already accepted and endorsed a provision, but the Ministry was of the

opinion that certain modifications are required to be made in the said

provision. It is only when such an occasion arises that the procedure

4 9, CONSTITUENT ASSEMB. DEB., (Aug. 1, 1949) 61.

W.P. (C) No. 1239 of 2023 Page 94 of 414 envisaged under the first proviso would be resorted to. The Council of

Ministers would use the Governor to hold up further proceedings of the bill

and remit it to the Lower House with the message informing the legislature

about the modifications sought to be made to the bill by the Ministry. He

drew attention to the words of Dr. Ambedkar on this aspect and stated as

follows:

“[...] If he construes that this Amendment is worse than the proviso in the draft Article and that it makes for further dilatoriness in the proceedings of the legislatures in the provinces or the States as the case may be, I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The governor is no longer vested with any discretion. If it happens that as per Amendment No.17 the Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers. The provision has merely been made to be used if an occasion arises when the formalities envisaged in Article 172 which has already been passed, do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the governor to hold up the further proceedings of the Bill and remit it back to the Lower House with his message.”5

78. The first proviso, according to him, was therefore a saving clause which

vested power in the hands of the Ministry to remedy a hasty action that they

5 9, CONSTITUENT ASSEMB. DEB., (Aug. 1, 1949) 61.

W.P. (C) No. 1239 of 2023 Page 95 of 414 might have undertaken with respect to the bill in question, or, it could also

be seen as providing some scope to the Ministry to take certain additional

actions that the Ministry feels should be taken in order to meet the popular

opinion reflected outside the House in some form or another. Therefore, the

operation of the first proviso does not abridge the power of the Legislature

or the Ministry responsible to it, rather, it further curtails the Governor’s

power from the position that was envisaged in the original first proviso,

which is now sought to be supplanted.

79. In light of the debate which took place as regards the substitution of the first

proviso to draft Article 175, the amendment was put to vote and the same

was successfully adopted by the Constituent Assembly.

80. On 17th of October, 1949, T.T. Krishnamachari moved an amendment that a

second proviso to Article 175 also be added, which later came to be adopted

by the Constituent Assembly. Dr. B.R. Ambedkar elucidated that the second

proviso that was proposed to be moved, was a part of the Instrument of

Instructions issued to the Governor of the provinces under the GoI, 1935.

Paragraph 17 of the Instrument of Instructions read as follows:

“Without prejudice to the generality of his powers as to reservation of Bills our Governor shall not assent in our name to, but shall reserve for the consideration of our Governor-General any Bill or any of the clauses herein specified, i.e. (b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court

W.P. (C) No. 1239 of 2023 Page 96 of 414 as to endanger the position that that Court is, by the Act, designed to fulfil.”

81. Such a clause was initially supposed to be included in the Fourth Schedule

that separately contained instructions to the Governors of the States.

However, since it was considered unnecessary to have such a separate

Schedule, this particular aspect was sought to be brought in as second

proviso to the draft Article 175. A need to incorporate the second proviso

was felt because the High Courts were placed under the legislative

competence of the Centre as well as the States. In so far as the organization

and territorial jurisdiction of the High Court was concerned, the power

remained with the Centre. However, with regard to the pecuniary

jurisdiction and the jurisdiction in relation to any of the matters which are

mentioned under List II, the power rests with different States. Therefore,

there could arise a scenario wherein the State legislature would enact a bill

which would derogate from the powers of the High Court. For example,

passing a bill that reduces the pecuniary jurisdiction of the High Court by

raising the value of the suit that may be entertained by the High Court. This

would be one method whereby the State legislature would diminish the

authority of the High Court. Furthermore, a bill could also affect the subject-

matter jurisdiction of a High Court. For example, in enacting any measure

under any of the entries contained in List II, say, debt cancellation, it would

be open for the provinces or States to say that the decree made by any such

W.P. (C) No. 1239 of 2023 Page 97 of 414 Court or Board shall be final and conclusive, and that the High Court should

not have any jurisdiction in the matter at all. In light of such possibilities, it

was felt that the second proviso to draft Article 175 must be added.

82. It was the opinion of Dr. B.R. Ambedkar that any such bill or Act as

illustrated above would amount to a derogation from the authority that the

Constitution confers or intends to confer upon the High Court. This is why

it was felt necessary that before such a law becomes final, the President must

be given an opportunity to examine whether such a law should be permitted

to take effect or not. Such a shield was considered imperative keeping in

mind the important constitutional position that the High Courts hold in

adjudicating disputes. Dr. B.R. Ambedkar had emphasized on the

importance of the second proviso as follows:

“I, therefore, submit that in view of the fact that the High Court is such an important institution intended by the Constitution to adjudicate between the Legislature and the Executive and between citizen and citizen such a power given to the President is a very necessary power to maintain an important institution which has been created by the Constitution. That is the purpose for which this amendment is being introduced.”6

6 10, CONSTITUENT ASSEMB. DEB., (Oct. 17, 1949) 394.

W.P. (C) No. 1239 of 2023 Page 98 of 414 E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS

POST THE COMMENCEMENT OF THE CONSTITUTION.

If we could roll back History

A century, let's say,

And start from there,

I'm sure that we

Would find things as to-day:

In all creation's cosmic range

No vestige of a change”

~ Robert William Service

83. We are tempted to preface this part of our judgment with the enlightening

words of Robert William Service, keeping in mind the history of our country

which has been fraught with instances of friction in the federal polity from

its inception, with the Governor occupying the center stage in this ongoing

saga.

84. As the democratic polity of the country unfolded post-independence, the

predominance of a single party at the union and provincial level gave way

to emergence of new political factions and regional parties. As a

consequence, the position of the Governor, which had mostly been latent

W.P. (C) No. 1239 of 2023 Page 99 of 414 during the era of single-party dominance, started to assume importance.

Allegations also came to be levelled by a number of State Governments that

the Governor in a number of States was acting as an agent of the Central

Government and the objectivity that was expected of the Governor was not

being displayed, more particularly when it came to reservation of bills for

the consideration of the President or recommendation for the imposition of

emergency under Article 356. In light of the aforesaid, certain commissions

came to be constituted which submitted their reports after undertaking

exhaustive analysis of the working of the constitutional machinery

prescribed for Centre-State relations. One of the key foci of these reports

was the working of Articles 200 and 201 of the Constitution respectively

and the scope of exercise of discretion by the Governors, which we deem

appropriate to discuss hereinafter.

i. First Administrative Reforms Commission, 1966.

85. The First Administrative Reforms Commission (the “ARC”) was

established in January 1966 by a resolution of the Ministry of Home Affairs

to examine the public administration of the country and make

recommendations for reform and reorganization where necessary. An aspect

of this exercise was the examination of Centre-State relations particularly

W.P. (C) No. 1239 of 2023 Page 100 of 414 with respect to the need for national integration, and for maintaining

efficient standards of administration throughout the country.

86. While examining the various facets of Centre-State relations, the

Commission found it apposite to discuss the role of the Governor in the

political context which existed back then. Taking note of the skirmishes

between the State governments and Governors, the Commission was of the

view that the Governor’s office ceased to be merely ornamental and

ceremonial. This changed role demanded a scrutiny of the discretionary

powers of the Governor.

87. As the discretionary powers of the Governor affect some of the vital issues

in the functioning of democratic governments in the States, the ARC

underscored the importance of evolving guidelines to enable the exercise of

such discretionary powers for the purpose of preserving and protecting

democratic values. It was noted that such guidelines would serve the purpose

of securing uniformity in action and eliminate all suspicions of partisanship

and arbitrariness.

88. The ARC, therefore, recommended the following:

“Recommendation 9:

We recommend:

W.P. (C) No. 1239 of 2023 Page 101 of 414 Guidelines on the manner in which discretionary powers should be exercised by the Governors should be formulated by the Inter-State Council and on acceptance by the Union issued in the name of the President. They should be placed before both Houses of Parliament.”

89. However, no such guidelines have been formulated by the Inter-State

Council till date and none of the Commissions on Centre-State relations

constituted thereafter made any recommendations on the issuance of

guidelines for exercise of discretion by the Governor.

ii. Rajamannar Commission, 1971

90. The Rajamannar Commission was set up by the Government of Tamil Nadu

in 1969 under the chairmanship of Dr. P.V. Rajamannar to look into the

question regarding the relationship that should subsist between the Centre

and States in a federal set-up. The Commission noted that in the changed

political circumstances, there can be no dispute regarding the fact that the

Governors have a positive role to play in the stability and progress of States.

This requires that the authority of the Governor should be clearly spelt out

and the Governors should no longer consider themselves to be instruments

of the Centre under compulsion to act on its directions and in its political

interests.

W.P. (C) No. 1239 of 2023 Page 102 of 414

91. One of the questions on which the Commission addressed itself was whether

the Constitution provides for the exercise of any power by the Governor in

his discretion that is, whether the Governor could exercise any of his

functions without consulting the Ministry or contrary to the aid and advice

tendered by the Council of Ministers.

92. To answer this question, the Commission adverted to the history of the

making of the Constitution and concluded that the Constitution does not

provide for the issue of any instructions to the Governor, nor does it vest any

discretionary powers in express terms in the Governor, except in relation to

certain specified matters. While referring to certain judicial pronouncements

of this Court as well as Granville Austin’s seminal work on the Indian

Constitution, the Commission opined that the discretion of the Governor

must be limited to those matters in respect of which there are express

provisions in the Constitution. The relevant portion of the report is

reproduced below:

“6. The question as to the discretionary functions of the Governor was considered by the Supreme Court in Ram Jawaya v. State of Punjab (A.I.R. 1955 8.C. 549 at page 556). The Supreme Court held that the Governors were constitutional heads of the executive, and that real executive power was vested in the Council of Ministers. A similar view has been expressed by the Supreme Court in T. M. Kanniyan v. 1.T.O., Pondicherry (A.I.R. 1968 S.C. 687). Again, Granville Austin in his book The Indian Constitution— Cornerstone of a Nation has categorically stated that the

W.P. (C) No. 1239 of 2023 Page 103 of 414 Governor occupies the same position as the English Monarch and that the Governor has to act in accordance with the advice of his Cabinet in all matters. To place the matter beyond doubt, Article 163 (1) may be modified making it clear that the reference to discretion is only in relation to the matters in respect of which there are express provisions, e.g., Assam.” (Emphasis supplied)

93. The Commission observed that while exercising his functions, the Governor

should not be under any pressure from an external authority. To explain the

position of discretionary powers of the Governor, the Commission referred

to the speech of the former Vice President of India, Shri G.S. Pathak, which

reads thus:

“He is the constitutional head of the State to which he is appointed, and, in that capacity, he is bound by the advice of the Council of Ministers of the State except in the sphere where he is required by the Constitution, expressly or impliedly, to exercise his discretion. In the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre. ‘There may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers. In the sphere in which he is required by the Constitution to exercise his discretion, it is obvious again that it is His discretion and not that of any other authority and therefore his discretion cannot be controlled or interfered with by the Centre.”

(Emphasis supplied)

94. However, in the same vein, it was also noted that the Governor has to

function in a dual capacity as (1) the appointee of the central government;

W.P. (C) No. 1239 of 2023 Page 104 of 414 and (2) the constitutional head of the State. This is because the Central

Government retains the power to appoint and remove the Governor,

therefore, the Governor cannot but look to the Central Government for

guidance in the discharge of his duties.

95. The Commission was of the opinion that it is necessary to indicate at least a

broad outline of the principles that should guide the Governor in the exercise

of discretion, if any, vested in him. It was observed that the evolution of

rules and guidelines in this respect is especially important in order to

reconcile the actions of the Governor in his capacity as an agent of the Centre

and the head of the State Executive.

96. Having discussed the discretion of the Governor in matters of constitutional

decision-making at length, the Commission recommended that a specific

provision should be inserted in the Constitution to enable the President to

issue Instruments of Instructions to the Governors laying down guidelines

or principles with reference to which the Governor should act including the

occasions for the exercise of discretionary powers.

iii. Sarkaria Commission

W.P. (C) No. 1239 of 2023 Page 105 of 414

97. In June 1983, the Central government headed by the former Prime Minister

of India, Ms. Indira Gandhi, formally constituted a commission to examine

and review the working of the arrangements between the Union and States

in regard to powers, functions and responsibilities in all spheres and to

recommend such changes or other measures as may be deemed appropriate.

The said commission was formed under the chairmanship of a former judge

of this Court, Justice R.S. Sarkaria and hence, came to be known as the

Sarkaria Commission.

98. The Sarkaria Commission was enjoined with the task of reviewing the

Centre-State relationship and consider the importance of unity and integrity

of the country for promoting the welfare of the people. One of the facets of

such review was to discuss the scope of the role of the Governor and its

impact on the federal polity of India.

99. For a number of years after the independence of India, the political scene

was dominated by a single party and there was little occasion for strife

between the central and state governments. The role of the Governor,

therefore, remained latent. However, post-1967, the emergence of new

regional political parties led to a discord between the central government

and those state governments that came to be led by such new regional

parties. These developments engendered political instability in several

W.P. (C) No. 1239 of 2023 Page 106 of 414 states, as a result of which, the Governors were called upon to exercise their

discretionary powers more frequently, particularly in recommending

President’s rule and in reserving State bills for the consideration of the

President.

100. The role of the Governor in giving assent to State bills, withholding assent

therefrom or reserving such bills for the consideration of the President, thus,

assumed importance. By virtue of Articles 200 and 201 of the Constitution

respectively, the office of Governor became a major stakeholder for the

maintenance of a cordial relationship between the central and state

governments. The Sarkaria Commission was, therefore, tasked with

providing recommendations regarding the interpretation of the said Articles

and amendments therein to strengthen the federal polity of India.

101. To the limited extent of studying the issues arising from the exercise of

powers under Articles 200 and 201 respectively, the Commission addressed

itself on the following broad points:

(i) Scope of Governor’s discretion under Article 200;

(ii) Interplay of Articles 200 and 254 respectively of the Constitution;

(iii) Scope of Union Executive’s discretion under Article 201;

(iv) Impropriety of conditional assent by the President;

W.P. (C) No. 1239 of 2023 Page 107 of 414 (v) Essentials for a “reference” of State bills to the President for his

consideration;

(vi) Delays in disposal of State bills;

(vii) Withholding of assent by the President.

102. A discussion of the recommendations of the Commission in this regard

would be beneficial to our examination of Articles 200 and 201 respectively

and the role of the Governor in the contemporary federal polity.

a. Scope of Governor’s Discretion Under Article 200

103. The Commission observed that the rule is that the Governor shall perform

his functions on the aid and advice of the Council of Ministers of the State

and the exercise of discretionary powers by him is the exception. The

Commission envisaged that discretionary powers of reservation of a bill

under Article 200 should be exercised by the Governor only in rare cases

where a bill is patently unconstitutional in his opinion. However, the

Governor should not act contrary to the aid and advice of the Council of

Ministers merely because he, in his personal capacity, does not favour the

policy embodied in the bill. The relevant observations of the Commission

are reproduced below:

“5.6.13 We are, therefore, of the view that:

W.P. (C) No. 1239 of 2023 Page 108 of 414 (i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional case, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.

(ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.”

104. According to the Commission, the scheme of the Constitution indicates that

the Governor’s opinion at best, is persuasive. The Governor cannot, in any

circumstance, exercise dictatorial powers to override or veto the decisions

or proposals of his Council of Ministers. The scope of discretionary powers

should be construed in the context of a parliamentary democracy with a

responsible government. In such a form of government, the role of a formal

head of the State cannot be enlarged at the cost of the real executive, which

enjoys the confidence of the people as it is responsible to the State

legislature.

W.P. (C) No. 1239 of 2023 Page 109 of 414

105. Discretion, in exercise of powers under Article 200, therefore, should be

dictated by reason, actuated by good faith and tempered by caution.

Discretionary functions should be performed in public interest and cannot

be discharged at the dictation of any outside authority unless so authorized

by and under the Constitution.

106. While addressing suggestions of some State governments that the

discretionary powers of the Governor must be curtailed or removed as it

presents a potential threat to the autonomy of the States, the Commission

observed that the makers of the Constitution advisedly refrained from

putting such discretionary powers in a straitjacket rigid definition. It noted

that the Constitution is ever evolving and the ways in which its provisions

and principles may be tampered with or circumvented, cannot be foreseen.

Therefore, the office of the Governor should be afforded enough flexibility

to react in any situation and his discretion to approach a matter cannot be

pre-determined.

b. Interplay of Articles 200 And 254 respectively of the Constitution.

107. Article 246(2) endows the Parliament as well as the State legislatures with

the competence to legislate on entries under List III i.e., the concurrent list.

The provision under Article 254 is appurtenant to the concurrent exercise of

W.P. (C) No. 1239 of 2023 Page 110 of 414 legislative competence by the Parliament and State legislature insofar as

there is any inconsistency or repugnancy between the laws of the respective

legislatures.

108. Article 254(1) saves the power of the State legislatures to make laws with

respect to matters in the concurrent list from being automatically superseded

by the operation of the doctrine of repugnancy. Article 254(2) allows a law

enacted by the State legislature and repugnant to the central law on the same

subject-matter, to operate and prevail in that State provided that such State

law receives the assent of the President.

109. The Commission highlighted that clause (2) of Article 254 is applicable only

when the following two conditions are cumulatively met:

(a) There is a valid Union law on the same subject-matter occupying the

same field in the Concurrent List to which the State legislation relates.

(b) The State legislation is repugnant to the Union law. That is to say, there

is a direct conflict between the provisions of the two laws, or the Union

law is intended to be an exhaustive code on the subject-matter in

question.

It is upon satisfaction of both these conditions that the Governor can reserve

a bill for Presidential consideration under Article 254(2). W.P. (C) No. 1239 of 2023 Page 111 of 414

110. It was noted by the Commission that the assent by the President to the State

bills had been withheld on certain occasions on the ground that the Union

was contemplating a more comprehensive legislation on the same subject

matter. However, withholding of assent on such a premise at the level of the

Union may unnecessarily delay or defeat the measures sought to be taken by

the State legislature. Since the Parliament retains the power to amend, vary

or repeal such a State legislation, even after its enactment, by passing a

subsequent law inconsistent therewith, the Commission recommended that

Presidential assent should not ordinarily be withheld on the ground that the

Union is contemplating a comprehensive law in future on the same subject-

matter.

c. Scope of Union Executive’s Discretion under Article 201

111. As per the report of the Commission, a State bill, once reserved for the

consideration of the President (upon the aid and advice of the Council of

Ministers), is made subject to the procedure prescribed under Article 201

and the Union Executive is entitled to examine it from all angles such as,

inter alia, conformity to legislative or executive policy of the Union,

harmony with the scheme and provisions of the Constitution, vires of the

bill, etc.

W.P. (C) No. 1239 of 2023 Page 112 of 414

112. On the question of the Union Executive’s discretion to withhold assent to a

State bill on the ground of non-conformity with its policy, the Commission

sounded a note of caution saying that policy considerations should not

ordinarily be treated as a valid ground for withholding Presidential assent.

Article 201 confers supervisory powers on the Union Executive to enable it

to secure a broad uniformity across central and state legislations in the

interests of the social and economic unity of the country. However, the said

provision cannot act as a measure for the Union Executive to bring to a

grinding halt a State bill by withholding assent thereto if such a bill does not

conform to its policy in general.

113. Further, the Union Executive is required to exercise utmost caution,

circumspection and restraint in the exercise of supervisory powers under

Article 201, especially in respect of the bills on subject matters that fall

within the State List. In this regard, the Commission recommended that as a

matter of convention, the President should not withhold assent only on

consideration of policy differences on matters relating, in pith and substance,

to the State List, except on the grounds of patent unconstitutionality.

114. The Commission did not make any specific prescription in respect of Article

143 of the Constitution, which enables the President and by extension, the

Union Council of Ministers to seek the opinion of the Supreme Court in

W.P. (C) No. 1239 of 2023 Page 113 of 414 respect of bills which may be deemed to be unconstitutional and left the

decision up to the President to make such a reference in appropriate cases.

d. Impropriety of Conditional Assent by the President

115. The Commission noted that the scheme of the Constitution providing for

reservation of State legislations for the consideration and assent of the

President, is intended to subserve the broad purpose of cooperative

federalism in the realm of Union-State legislative relations. Therefore, the

practice of according assent to a State bill by the President on the reciprocal

assurance that the changes suggested by him (or the Union Executive) will

be carried out by way of an ordinance, was not considered to be ideal

especially when there exists a constitutional remedy under the proviso to

Article 201 itself.

116. Since, conditional assent may become a tool for the Centre to dictate its

policies to the States by attaching conditions to Presidential assent, the

Commission, in cognizance of the impropriety of such a practice,

recommended that in cases where the Union Government is of the opinion

that some amendments to a State bill are essential before it becomes a law,

such bill should be returned through the Governor to the State legislature for

reconsideration in terms of the proviso to Article 201.

W.P. (C) No. 1239 of 2023 Page 114 of 414 e. Essentials for a “Reference” of State Bills to the President for his Consideration

117. The Commission, cognizant of the misgivings and irritations in Union-State

relations due to delays in the process of securing Presidential assent,

recommended that the procedure of making a reference to the President by

the State Government through the Governor and the consideration thereof

by the Union Government must be streamlined. It was also endorsed that the

Governments at both the Centre and State level may benefit from a prior

consultation at the stage of drafting of the bill itself and prescribing time-

limits for disposal, which ought to be made convention and practice.

118. As regards the suggestion of streamlining the procedures involved in

reserving a State bill for consideration of the President, the Commission

recommended that every reference from the State should be complete and

clearly established. Such reference should set out precise material facts,

points for consideration and the reason for making a reference to the

President. Accordingly, the Commission recommended the following

information to be necessarily provided for ensuring that the reference to the

President is self-contained:

“5.15.01— To facilitate its speedy examination by the Union Executive, every reference of a State Bill from the State should be self-contained, setting out precisely the material facts, points for consideration and the ground on which

W.P. (C) No. 1239 of 2023 Page 115 of 414 reference has been made. It should contain information on the following points:

a. The relevant provisions of the Constitution attracted or applicable, with reasons.

b. If the reference is made under Article 254(2), clear identification of the provisions of the Bill which are considered repugnant to, or inconsistent with, the specific provisions of a Union law or an existing law. c. Urgency, if any, of passing the law within a certain time-limit.

d. A clear statement that the Bill is being reserved as per the advice of the Council of Ministers, or in the exercise of his discretion by the Governor, with reasons for the same.

e. A lucid explanatory note on the intended policy behind the legislation instead of merely referring to the objects and reasons of the Bill.

f. An indication whether the Bill was sent for prior scrutiny of the Union Government, and if so, deviations, if any, from the prior reference.”

(Emphasis supplied)

f. Delays in Disposal of State Bills

119. The question whether there was a requirement of introducing time-limits in

Article 201 was necessary or not was also looked into by the Commission.

It was reiterated that streamlining the procedure of reserving a State bill for

Presidential consideration and enabling a mechanism for high-level

discussions between the Union and State at the stage of drafting such bill

may effectively reduce procedural delays at the level of the Union

Government. Nevertheless, it was recommended that the Union and State

W.P. (C) No. 1239 of 2023 Page 116 of 414 Governments should adopt definite timelines for processing State bills and

disposing of their references to the President.

120. With regard to prescription of such timelines, the Commission proposed the

following timelines to be treated as salutary conventions:

STAGE OF THE BILL PROPOSED TIMELINE

i. Reserving the bill for consideration of Immediately upon

the President, by the Governor under presentation of the bill

Article 200 (on the aid and advice of the to the Governor.

State Council of Ministers).

ii. Reserving the bill for consideration of Within one month from

the President, by the Governor under the date on which the

Article 200 (in exercise of his discretion bill is presented to the

in exceptional circumstances). Governor.

iii. Decision on the bill by the President Within four months

under Article 201 (in case the proviso to from the date on which

Article 201 is not being exercised). the reference is received

by the Union

Government.

iv. Returning the bill for consideration of Within two months

the State legislature in case the proviso from the date on which

W.P. (C) No. 1239 of 2023 Page 117 of 414 to Article 201 is exercised by the the original reference is

President. received by the Union

Government.

v. Decision on the bill by the President, Within four months of

once received with clarifications from the date on which the

the State legislature under proviso to reconsidered bill is

Article 201. received by the Union

Government.

121. With a view to ensure that the timelines so suggested are not frustrated by

lack of clarity and comprehensiveness in a reference, the Commission

underscored the importance of a self-contained communication by the

President to the State legislature for clarification or reconsideration of the

bill. It was emphasized that clarifications to be sought by way of the proviso

to Article 201 should not be piecemeal.

122. While the Commission noted the significance of clear timelines for the

exercise of powers under Articles 200 and 201 respectively, it did not

recommend any amendments to the said Articles for introducing concrete

time periods within the constitutional scheme and left its recommendations

in this regard at the stage of conventions only.

W.P. (C) No. 1239 of 2023 Page 118 of 414

g. Withholding of Assent by the President

123. As regards the withholding of Presidential assent, the Commission laid great

emphasis that the Union Government ought to communicate to the State

government, the reasons therefor. It was noted that the Union Government

should enter into the practice of discussing the issues present in the bill with

the State Government and making an effort to present its point of view to

the State Government with reasons.

h. Recommendations given by the Commission

124. Before concluding the discussion on the aspect of reservation of bills by the

Governor for consideration of the President, the Commission noted that

needless reservation of bills should be avoided. The constitutional scheme

does not envisage indiscriminate reservation of bills, especially when it is

being done in his discretion, as the same would be subversive of the federal

principle and the supremacy of the State legislature.

125. The Commission classified State bills to be reserved for the consideration of

the President as follows:

“5.1.05 State Bills reserved for President's consideration under the Constitution, may be classified as follows: —

i. Bills which must be reserved for President's consideration

W.P. (C) No. 1239 of 2023 Page 119 of 414 In this category come Bills —

(i) which so derogate from the powers of the High Court, as to endanger the position which that Court is by this Constitution designed to fill (Second Proviso to Article

200);

(ii) which relate to imposition of taxes on water or electricity in certain cases, and attract the provisions of Clause (2) of Article 288; and

(iii) which fall within clause (4) (a) (ii) of Article 360, during a Financial Emergency.

ii. Bills which may be reserved for President's consideration and assent for specific purposes

(i) To secure immunity from operation of Articles 14 and

19. These are Bills for—

(a) acquisition of estates, etc. [First Proviso to Article 31A(I)];

(b) giving effect to Directive Principles of State Policy (Proviso to Article 31C).

(ii) A Bill relating to a subject enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President's assent in terms of Article 254(2).

(iii) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the Proviso to Article 304(b) read with Article 255.

iii. Bills which may not specifically fall under any of the above categories, yet may be reserved by the Governor for President's consideration under Article

200.” (Emphasis supplied)

126. The Commission recommended that bills should be reserved only if required

for specific purposes falling in the first two classes as extracted hereinabove.

W.P. (C) No. 1239 of 2023 Page 120 of 414

iv. Punchhi Commission

127. Another Commission on Centre-State relations was constituted by the

Government of India in 2007 under the chairmanship of Justice Madan

Mohan Punchhi, the former Chief Justice of India. The Commission was

tasked with the mandate of reviewing the existing arrangements between the

Union and States as per the Constitution of India in regard to powers,

functions and responsibilities in all spheres including legislative relations,

administrative relations, role of Governors, emergency provisions, etc. and

recommending such changes as may be appropriate keeping in view

practical difficulties, growing challenges of ensuring good governance and

the need for strengthening the unity and integrity of the country.

128. The Commission, inter alia, looked at the original scheme of the Centre-

State relations as laid down by the Constitution, examined the friction points

in the working thereof and reviewed the adequacy of the constitutional

arrangements for promoting social welfare and good governance. One aspect

of this study involved looking minutely into the role of the Governor in the

federal polity of India. The Commission noted that the role of the Governor

became important as he had to balance the political considerations between

the Centre and State and be as impartial as possible.

W.P. (C) No. 1239 of 2023 Page 121 of 414

129. However, as regional political powers grew at the State level, the role of the

Governor came to be a point of contention between the Centre and States

with the latter leveling allegations of partiality and lack of objectivity in

exercise of the Governor’s discretionary powers. As a result, the

Commission was enjoined with the task of providing recommendations for

better working of the office of the Governor.

a. Role of the Governor

130. The Commission observed that the nature and scope of rights and powers of

the Governor should be understood in the context of a Cabinet system of

government. Under such system, the Governor performs a multi-faceted

role. First, as constitutional head of the State, he has a right to be consulted,

to warn and encourage. In performance of this role, the Constitution makers

ideated the office of Governor to perform the role of a “a friend, philosopher

and guide” to his Council of Ministers. Secondly, the Governor functions as

a sentinel of the Constitution and acts as the Union’s representative in the

State. As observed by this Court in Rameshwar Prasad & Ors. v. Union of

India reported in (2006) 2 SCC 1, the Governor discharges “dual

responsibility” to the Union and State.

W.P. (C) No. 1239 of 2023 Page 122 of 414

131. Further, the Constitution affords the Governor only a persuasive role and not

dictatorial powers to override or veto the decisions or proposals of his

Council of Ministers. The Commission observed that the Governor, at best,

has powers of giving advice or counselling for further reflection of the

decision taken by the Council of Ministers. The Governor only flags a need

for caution for the purpose of bridging the understanding between the

Government and opposition (if there are different governments at the central

and state level).

132. The Governor is not amenable to the directions of the Union government,

nor does the Constitution make him accountable to the Centre for the manner

in which he carries out his functions and duties. The office of Governor is

an independent constitutional office. The Governor, by virtue of Article 163,

however, is bound by the aid and advice of the State Council of Ministers.

Therefore, in the event of a conflict between the aid and advice of the State

Council of Ministers and the dictates of the Central Government, the scheme

of the Constitution indicates that the Governor must adhere to the former.

133. With the broad tenets of the role of the Governor under the constitutional

scheme, the Commission, while appraising the existing framework of

Centre-State relations, observed that a major point of friction between the

W.P. (C) No. 1239 of 2023 Page 123 of 414 Centre and States is the power of the Governor to reserve any State bill for

the consideration of the President, sometimes even for an indefinite period.

b. Discretionary Powers of the Governor

134. Upon a perusal of Article 163(2), the Commission was of the view that the

said provision gives the impression that the Governor has a wide and

undefined area of discretionary powers. However, the scope of the

discretionary powers of the Governor has to be narrowly construed. The

language of Article 163(2) cannot be taken to mean that the Governor has a

general discretionary power to act against the aid and advice of the Council

of Ministers.

135. In continuation to the Sarkaria Commission’s views on the question of

discretionary powers of the Governor, the Punchhi Commission report also

asserts that the area for the exercise of discretion is limited and even in this

limited area, the Governor’s choice of action should neither be nor appear to

be arbitrary or fanciful. It must be a choice dictated by reason, actuated by

good faith and tempered with caution.

136. The Commission further emphasized the necessity of prescribing time limits

for the exercise of powers under Articles 200 and 201 respectively in order

W.P. (C) No. 1239 of 2023 Page 124 of 414 to ensure that discretionary powers are not exercised by the Governor or the

President in a manner that undermines the State legislature and the will of

the people.

c. Expediency in Disposal of Bills – Timelines Suggested by the Report of the Commission

137. The Commission suggested that definite timelines ought to be adopted as

salutary conventions for the Governor to either provide assent or reserve the

bill for the consideration of the President. Similarly, there should be a time

limit for the President to take a decision on the State bill under Article 201

of the Constitution. The Commission was of the view that concrete timelines

are sine qua non for the exercise of powers under Articles 200 and 201

respectively so as to avoid dissensions between the Central and State

governments.

138. The Commission noted that the substantive part of Article 200 does not

stipulate time period within which the Governor has to either assent,

withhold assent or reserve the bill for Presidential consideration. The

requirement of expediency is incumbent upon the Governor only when he

decides to return the bill to the State legislature for reconsideration. The

same was considered to be evident from the expression “as soon as

possible”.

W.P. (C) No. 1239 of 2023 Page 125 of 414

139. The Commission noted that while the expression “as soon as possible” is

mentioned in Article 200 albeit only in the first proviso thereof, there is no

such compulsion on the President under Article 201. As a result, the

President or the Union Government may kill the bill by not taking a decision

on the same, sometimes for the entire duration of the State legislature. This

increases the scope for abuse of discretion by the Union government based

on political considerations particularly when the ruling party in the State

concerned is different from the one enjoying power at the Union level. The

lack of a reasonable timeline allows the executive fiat to make inroads into

the legislative power of the State thereby thwarting the democratic will of

the State legislature. Such invasion of the powers of the State legislature by

the Union Executive is questionable in the context of ‘basic features’ of the

Constitution.

140. Therefore, the Commission suggested that a period of six months should be

prescribed in Article 201 for the President to decide on assenting or

withholding assent to a bill reserved for consideration of the President. In

case the President on the aid and advice of the Union Council of Ministers,

is unable to give assent to a State bill under Article 201, it is desirable for

him to make a reference to the Supreme Court under Article 143 for an

opinion. Such reference should be done as a matter of practice in order to

W.P. (C) No. 1239 of 2023 Page 126 of 414 avoid allegations of political bias, while securing the dignity and authority

of the State legislature.

d. Recommendations

141. Having considered the challenges in the exercise of powers under Articles

200 and 201 respectively, the Commission reiterated the recommendations

of the National Commission to Review the Working of the Constitution

(“NCRWC”), which are reproduced hereinbelow:

“After considering the suggestions given by the Sarkaria Commission, the National Commission to Review the Working of the Constitution gave the following recommendations:

(a) Prescribe a time-limit - say a period of four months -

within which the Governor should take a decision whether to grant assent or to reserve it for the consideration of the President;

(b) Delete the words "or that he withholds assent therefrom". In other words, the power to withhold assent, conferred upon the Governor, by Article 200 should be done away with;

(c) If the Bill is reserved for the consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under Article 143 (as it happened in the case of Kerala Education Bill in 1958);

(d) When the State Legislature reconsiders and passes the Bill (with or without amendments) after it is returned by the

W.P. (C) No. 1239 of 2023 Page 127 of 414 Governor pursuant to the direction of the President, the President should be bound to grant his assent;

(e) To provide that a "Money Bill" cannot be reserved by the Governor for the consideration of the President;

(f) In the alternative it may be more advisable to delete altogether the words in Article 200 empowering the Governor to reserve a Bill for the consideration of the President except in the case contemplated by the second proviso to Article 200 and in cases where the Constitution requires him to do so. Such a course would not only strengthen the federal principle but would also do away with the anomalous situation, whereunder a Bill passed by the State Legislature can be 'killed' by the Union Council of Ministers by advising the President to withhold his assent thereto or just by cold-storaging it.”

(Emphasis supplied)

142. The report of the Punchhi Commission advocated for the immediate

implementation of the above-mentioned recommendations by way of a

Constitutional Amendment.

F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS

143. The tenets of parliamentary democracy demand that while the head of state

must act on the advice of ministers, the ministers, in turn, must uphold their

responsibility to the people when providing that advice. Indeed, the very

raison d’être of a democratic government is to uphold the primacy of the

Parliament by ensuring executive accountability. This has been aptly put

W.P. (C) No. 1239 of 2023 Page 128 of 414 forth by Nicholas Barber, Professor of Constitutional Law and Theory at the

Oxford University, in his work ‘Can Royal Assent Be Refused on the Advice

of the Prime Minister?’7 wherein he argues:

“The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law. But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister. In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers. There is no room for discretion. On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.”

a. United Kingdom

144. The position in the United Kingdom is that once a bill has passed through

all parliamentary stages in both Houses, it is poised for the conferment of

‘royal assent’. Historically, the Sovereign granted assent to bills in person

in the House of Lords, attended by the Lords Commissioners. This formal

ceremony was known as the ‘Royal Assent ceremony’. The Royal Assent

ceremony continued until 1967, when the British Parliament passed the

Royal Assent Act wherein the requirement of grant of assent in person by the

monarch was made voluntary. Although granting assent is a personal

7 Nicholas Barber, Can Royal Assent Be Refused on the Advice of the Prime Minister?, UK CONSTITUTIONAL LAW ASSOCIATION (Apr. 7, 2025, 9:45 PM), https://ukconstitutionallaw.org/2013/09/25/nick-barber-can-royal-assent-be-refused-on-the-advice-of- the-prime-minster/.

W.P. (C) No. 1239 of 2023 Page 129 of 414 prerogative of the monarch, yet it has long been an established convention

that the monarch does not withhold it for a bill that has received approval

from both Houses. The process of Royal Assent comprises two stages: first,

the signification of the royal assent to a bill via the Royal Sign Manual on

Letters Patent issued under the Great Seal of the Realm; and secondly, the

communication of the King’s Assent to both Houses of Parliament. In the

United Kingdom (UK), royal assent is regarded as a formality and has not

been refused to a bill since Queen Anne’s reign in 1707.

145. In Parliament of the UK, the procedure for obtaining Royal Assent begins

with officials in the Public Bill Office of the House of Lords that manages

and assists the processes relating to the House’s consideration of public

legislation. First, a list of bills is prepared by the Clerk of the Parliaments.

Thereafter, once a date for Royal Assent has been set, all the bills approved

by both Houses are presented before the monarch for assent. In this regard,

the monarch has no power to withhold assent to a bill, regardless of any

instructions from the Government or anyone else.8 In Scotland, a period of

four weeks is allowed before a bill is presented to the Queen for assent,

during which any legal objections may be raised.

8 David Torrance, Royal Assent, HOUSE OF COMMONS LIBRARY (Feb. 26, 2024), HTTPS://RESEARCHBRIEFINGS.FILES.PARLIAMENT.UK/DOCUMENTS/CBP-9466/CBP-9466.PDF.

W.P. (C) No. 1239 of 2023 Page 130 of 414

146. The only ground on which assent may be withheld, that too solely on

ministerial advice, is if the bill has failed to comply with mandatory

procedural requirements or if there has been a change in government

between the bill’s approval and its presentation for assent. Section 4 of the

Judicial Committee Act, 1833 provides that the Sovereign may refer a bill to

the Judicial Committee of the Privy Council for an advisory opinion on

whether such bill contravenes a fundamental constitutional principle.

However, the position in the UK does not clarify whether the Sovereign can

initiate such a referral independently.

b. Canada

147. Canada’s Royal Assent ceremony traces its origins to the United Kingdom.

Traditionally, once a bill was passed in identical form by both the Senate

and the House of Commons, the Governor General, as the Crown’s

representative, attended the Parliament to provide Royal Assent to such bill.

In absence of the Governor General, a Justice of the Supreme Court of

Canada acting as Deputy to the Governor General is presented the bills for

Royal Assent. The Governor General signs a Declaration of Royal Assent,

witnessed by the Clerk of the Parliaments.

148. Section 3 of the Royal Assent Act, 2002 (Can) provides that assent may be

given ‘in Parliament assembled’ or through a written declaration, provided

W.P. (C) No. 1239 of 2023 Page 131 of 414 it is witnessed by more than one member from each House. The Act

stipulates that the Royal Assent must be given in the Senate Chamber at least

twice a year and for the first appropriation bill of each session of the

Parliament. In all other cases, such assent may be granted by the Governor

General or her Deputy by written consent. At the provincial level, assent is

given by the Lieutenant Governor, who is appointed by the Governor

General. As per Section 57 of the Constitution Act, 1867, when bills are

reserved for Queen’s pleasure, she acts upon ministerial advice rather than

the advice of the Houses.

149. The Supreme Court of Canada in Reference Re Amendment of the

Constitution of Canada, reported in 1981 SCC OnLine Can SC 77,

recognized that, by convention, neither the Queen nor the vice-regal

representative (equivalent of a Governor in India) may, on their own, refuse

assent to a bill passed by both Houses of the Parliament on the grounds of

opposition to or disapproval of its policy. The relevant portion of the

judgment in reference reads thus:

“As a matter of law, the Queen, or the Governor General or the Lieutenant Governor could refuse assent to every bill passed by both Houses of Parliament or by a Legislative Assembly as the case may be. But by convention they cannot of their own motion refuse to assent to any such bill on any ground, for instance because they disapprove of the policy of the bill. We have here a conflict between a legal rule which creates a complete discretion and a conventional rule which completely neutralizes it. But conventions, like laws, are

W.P. (C) No. 1239 of 2023 Page 132 of 414 sometimes violated. And if this particular convention were violated and assent were improperly withheld, the courts would be bound to enforce the law, not the convention. They would refuse to recognize the validity of a vetoed bill. This is what happened in Gallant v. The King, a case in keeping with the classic case of Stockdale v. Hansard where the English Court of Queen's Bench held that only the Queen and both Houses of Parliament could make or unmake laws. The Lieutenant Governor who had withheld assent in Gallant apparently did so towards the end of his term of office. Had it been otherwise, it is not inconceivable that his withholding of assent might have produced a political crisis leading to his removal from office which shows that if the remedy for a breach of a convention does not lie with the courts, still the breach is not necessarily without a remedy. The remedy lies with some other institutions of government; furthermore it is not a formal remedy and it may be administered with less certainty or regularity than it would be by a court.”

150. In Galati v. Governor-General of Canada, reported in [2015] FC 91, the

Federal Court of Canada was faced with the question of whether the grant

of royal assent by the Governor General to the Strengthening Canadian

Citizenship Act, 2014 could be set aside by the court on the ground that

enactment of the same was outside the legislative competence of the

Parliament. It was contended by the applicants that the Governor General

exceeded the scope of his discretion as well as his authority under the Royal

Assent Act of Canada by assenting to the said bill. The Federal Court,

however, dismissed the application and held that the Governor General’s act

of affixing royal assent to the bill was a legislative act. Therefore, the issue

W.P. (C) No. 1239 of 2023 Page 133 of 414 of whether the Governor General exceeded his constitutional authority in

granting royal assent to the said bill was not justiciable. The relevant portion

of the judgment is reproduced below for ready reference:

“The courts exercise a supervisory jurisdiction once a law has been enacted. Until that time, a court cannot review, enjoin or otherwise engage in the legislative process unless asked by way of a reference framed under the relevant legislation. To conclude otherwise would blur the boundaries that necessarily separate the functions and roles of the legislature and the courts. To review the Governor General's act of granting royal assent, as the applicants request, would conflate the constitutionally discreet roles of the judiciary and the legislature, affecting a radical amendment of the Constitution Act, 1867 and the conventions which underlie our system of government, notably the right of Parliament to consider and pass legislation. The applicants' arguments turn this principle on its head. On the theory advanced, the judiciary would adjudicate on the constitutionality of proposed legislation before it became law. That line, once crossed, would have no limit.”

151. The views of the Federal Court in Galati (supra) that the grant of royal

assent by the Governor-General was a legislative act and hence, non-

justiciable was in line with the view of the Court in Gallant v. The King,

[1949] 2 DLR 425 wherein it was noted that the Lieutenant-Governor is a

part of the legislature and the act of providing royal assent is also a

legislative action.

c. United States of America

W.P. (C) No. 1239 of 2023 Page 134 of 414

152. The Constitution of the United States, more particularly, Article I, Section

7, Clause 2 thereof states that once a bill has been passed by the House of

Representatives and the Senate, it must be presented to the President. If the

President approves, he may sign the bill; otherwise, he may return it with his

objections for reconsideration. If, after reconsideration, two-thirds of both

the Houses passes the bill, it becomes law. Further, if the President does not

sign a bill within ten days of presenting the same, while Congress is in

session, the bill automatically becomes law. Therefore, in this limited

circumstance, the concept of pocket veto is not available to the President.

However, if Congress adjourns while the bill is awaiting assent and the

President does not sign the bill within ten days, the bill does not become law.

d. New Zealand

153. The colonial legislative framework of New Zealand under the Constitution

Act, 1852, vested structured discretion in provincial authorities while

maintaining the supremacy of the Crown. Section 27 of the Constitution Act,

1852 stipulated that every bill passed by the Provincial Council must be

presented to the Superintendent who was an elected head of each Provincial

Council, for the assent of the Governor who was the representative of the

monarch. The Superintendent, in his discretion, could have either granted

assent on behalf of the Governor or withheld assent or reserved the bill for

the Governor’s pleasure. For a bill to become law, Superintendent had to

W.P. (C) No. 1239 of 2023 Page 135 of 414 signify Governor’s assent. Further, her Majesty, with the advice of her Privy

Council could issue instructions to the Governor to guide him in exercise of

his powers to assent to, dissent from, or reserve bills for her Majesty’s

pleasure. The Governor was required to act in obedience to these

instructions.

154. By the introduction of the Constitution Act, 1986, the Sovereign began to

act on the advice of the Executive Council which is the part of the executive

branch of government. It states that a bill passed by the House of

Representatives becomes law when the Sovereign or the Governor-General

grants assent. Section 3 of the Act states that the power conferred on the

Governor-General are royal powers exercised on behalf of the Sovereign.

These powers may be exercised either by the Sovereign in person or by the

Governor-General. Additionally, any reference in an Act to the Governor-

General in Council also includes the Sovereign acting with the advice and

consent of the Executive Council. The Prime Minister-designate is

appointed as the Executive Councillor and he advises the Governor-General

to appoint other Councillors. Section 3A removes any discretion of the

Sovereign or the Governor-General, stating that they may exercise a power

on the advice and with the consent of the Executive Council.

e. Australia

W.P. (C) No. 1239 of 2023 Page 136 of 414

155. The structure of governance in Australia reflects a nuanced distribution of

the Queen’s powers through her representatives at both national and state

levels. The Queen of Australia is the formal Head of State. At the national

level, the Queen’s powers and functions qua the Government of Australia

are exercised by the Governor-General of Australia. At the State level, her

powers are exercised by the Governor of the State. As per Section 2(1) of

the Constitution Act, 1889, the legislative powers were vested in the

Sovereign and exercised by her colonial Governors, subject to the advice of

legislators. At the national level, Governor-General is not given ministerial

advice on assent, the Presiding Officer of the House requests for assent and

the Attorney General provides a certificate to the Governor-General

regarding whether the bill needs to be reserved for the Queen’s assent or

regarding any corrections.9

156. It is said that the role of the Governor-General is to ensure due process – that

the bill was passed in Houses following the procedure. He is not concerned

with the contents of the legislation as the act of the Governor-General is

executive. However, in the context of Governor (state level), the Court of

Appeal in Eastgate v. Rozzoli, reported in (1990) 20 NSWLR 188, noted

that while giving assent the Australian State Governor acts as a constituent

part of the Parliament. If a bill is reserved for Queen’s pleasure, she acts

9 DEPT. OF PRIME MINISTER & CABINET, AUSTL. GOVT., LEGISLATION HANDBOOK (2017).

W.P. (C) No. 1239 of 2023 Page 137 of 414 upon the advice of Australian Commonwealth Ministers. The power to refer

bills back to Parliament can be exercised only upon ministerial advice. At

the states, the parliamentary officers seek State Governor’s assent.

Ordinarily, the State Governors assent to bills without any ministerial

advice, only South Australia endeavors to provide executive advice to the

Governor.

f. Ireland

157. Ireland’s constitutional order provides a unique provision enabling the

President to refer bills to the Supreme Court for its view on the

constitutionality of the bills. Article 26 of the Constitution of the Ireland

confers a power on the President, who, after consultation with the Council

of State, may refer any bill to the Supreme Court for a decision on whether

any provisions of the bill are repugnant to the Constitution. Such reference

must be within seven days from the presentation of the bill to the President.

If the Supreme Court holds that any provision of the bill is repugnant to the

Constitution, the President declines to sign such bill.

g. Republic of Singapore

158. The Constitution of Singapore establishes a structured framework for the

exercise of presidential discretion, setting clear time limits for decision-

making while also ensuring safeguards against legislative overreach. Article

W.P. (C) No. 1239 of 2023 Page 138 of 414 21A of the Constitution stipulates the general time limit for the President to

exercise his discretionary powers. It provides that when the Constitution

grants the President discretion in granting or refusing assent, concurrence,

approval, or confirmation, he must signify his decision within the specified

period after it is sought. The time period specified for granting assent ranges

from thirty days to six weeks. However, it may be extended contingent upon

any agreement between the President and the Cabinet.

159. Article 22H applies in cases where the bill or any provision seeks to curtail

discretionary powers of the President. If, within thirty days, the President

neither withholds assent nor refers the bill to the tribunal for its opinion on

whether the bill curtails the President’s discretionary powers, then the

President is deemed to have assented. Even when the tribunal is of the

opinion that the bill does not curtail the discretionary powers conferred on

the President, the President is still deemed to have assented.

h. Democratic Socialist Republic of Sri Lanka

160. The Constitution of Sri Lanka, more particularly, Article 154H, stipulates

that upon the presentation of a statute enacted by the Provincial Council, the

Governor shall either assent to it or return it for reconsideration as soon as

possible. The Provincial Council may then pass the statute with or without

amendments. If the statute is presented to the Governor again, he may

W.P. (C) No. 1239 of 2023 Page 139 of 414 reserve it for reference by the President to the Supreme Court within one

month of its second time, seeking a determination as to whether is

inconsistent with the Constitution. If the Supreme Court holds the statute to

be consistent, the Governor must grant assent. If it is held inconsistent, the

Governor may withhold assent. It can be concluded that, upon the first

presentation of a bill, the Governor has only two options: granting assent or

returning it for reconsideration. On the second presentation, the Governor

may only reserve the bill, referring it to the President for submission to the

Supreme Court. He does not have the discretion to withhold assent

independently.

i. Republic of Kiribati

161. The constitutional framework of Kiribati is similar to the Democratic

Socialist Republic of Sri Lanka. It provides powers to withhold assent only

in exceptional situations. Section 66 of the Constitution of Kiribati allows

the Beretitenti, that is the head of the state and head of the government, to

withhold assent to a bill only if he believes the bill to be inconsistent with

the Constitution. In such a case, the bill is returned to the Parliament for

amendment, and if it is presented again and the Beretitenti still believes that

the bill is inconsistent with the Constitution, he is required to refer it to the

High Court for a declaration. If the Court declares that the bill is not

W.P. (C) No. 1239 of 2023 Page 140 of 414 consistent with the Constitution, the Beretitenti must grant assent forthwith.

If the Court declares the bill to be inconsistent, it is sent back to Parliament.

The Constitution of Zimbabwe under Section 131 provides a time period of

twenty-one days to either assent to the bill or refer it for reconsideration.

j. Republic of Fiji

162. The Constitution of Fiji, 2013 also does not vest discretionary power in the

President. While Section 53 of the Fiji Independence Order, 1970 and

Constitution of Fiji granted the Governor-General the power to grant assent

or withhold assent, the Constitution of Fiji, 2013, removed any discretion on

the part of the President. Section 48 of the Constitution stipulates that once

a bill is passed, the Speaker must present it to the President for assent, which

must be granted within seven days; otherwise, the bill is deemed to have

received assent.

k. Solomon Islands & Antigua and Barbuda

163. Both the Solomon Islands and Antigua and Barbuda have constitutional

provisions that mandate the Governor-General to grant assent to bills passed

by Parliament. In the Solomon Islands, Section 59(2) of the Constitution of

the Soloman Islands provides that when a bill has been passed by the

Parliament it shall be presented to the Governor-General who shall assent to

W.P. (C) No. 1239 of 2023 Page 141 of 414 it forthwith on behalf of the Head of the State. Whereas Section 52(2) of the

Constitution of Antigua and Barbuda states that when a bill is presented to

the Governor-General for assent in accordance with this Constitution, he

shall signify that he assents thereto.

l. Islamic Republic of Pakistan

164. In our neighboring country, Article 75 of the Constitution of the Islamic

Republic of Pakistan provides that when a bill is presented to the President,

he must either assent within ten days or return it to Parliament with a request

for reconsideration. If the bill is passed again by a majority, whether

amended or not, the President must grant assent within ten days, failing

which it will be deemed to have received assent. Whereas Article 105

stipulates that the Governor shall act in accordance with the advice of the

Cabinet or the Chief Minister. The Governor may, however, require the

Cabinet or the Chief Minister to reconsider the advice. Following such

reconsideration, the Governor must act in accordance with the advice

tendered within ten days.

m. Federal Republic of Germany

165. The legislative process in Germany is governed by both federal and state

constitutional provisions. Article 76 of the Basic Law for the Federal

Republic of Germany states that bills are to be introduced in Bundestag

W.P. (C) No. 1239 of 2023 Page 142 of 414 (house elected by the people) by the Federal Government or by the

Bundesrat (federal council). The provision grants the Bundesrat a period of

six weeks to comment on bills for Federal Government bills. The Federal

Government submits the bills, alongwith its views, to the Bundestag within

six weeks alongwith its views. Article 78 provides that a bill adopted by the

Bundestag become the law if the Bundesrat consents to it. Laws enacted in

accordance with the provisions of the Basic Law, after being countersigned,

are certified by the Federal President. Furthermore, Section 60, Section V,

the Constitution of Berlin stipulates that the bills shall be signed by the

President of the House of Representatives without delay and then

promulgated by the Governing Mayor within two weeks.

n. Italian Republic

166. The legislative process in Italy is shaped by constitutional provisions that

define the President’s role in the promulgation of laws and the scope of

legislative urgency. Article 73 of the Constitution of the Italian Republic

mandates that laws be promulgated by the President within one month of

their approval. However, if the Chambers (the Parliament consists of the

Chamber of Deputies and the Senate of the Republic), by a majority vote,

declare a bill to be urgent, it shall be promulgated within the time specified

by the bill itself. Article 74 empowers the President to request a new

deliberation by means of a message stating the reasons for such a request. It

W.P. (C) No. 1239 of 2023 Page 143 of 414 is important to take note that if the Chambers pass the bill once again, then

the law must to be promulgated.

o. French Republic

167. In France, the promulgation of legislation is subject to defined constitutional

timelines. Article 10 of the Constitution of October 4, 1958, stipulates that

the President of the Republic must promulgate Acts of Parliament within

fifteen days after the final passage of an Act. It also empowers the President

to request Parliament to reopen the debate on the Act, or any specific

sections thereof, and such a request for reopening of debate shall not be

refused.

p. Japan

168. As per the Japanese constitutional framework, the Diet (Parliament of Japan)

is the sole law-making organ of the State. Article 59 envisages that if a bill

passed by the House of Representatives is rejected by the House of

Councillors, it becomes a law when passed a second time by the House of

Representatives by a two-thirds majority of the members present. Article 74

states that all laws and cabinet orders must be signed by the competent

Minister of State and countersigned by the Prime Minister.

W.P. (C) No. 1239 of 2023 Page 144 of 414

G. ANALYSIS

i. What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution?

169. A plain reading of Article 200 of the Constitution indicates that when a bill

is passed by the legislature of a State, it is mandatorily required to be placed

before the Governor for his assent. This is because without receiving the

assent of the President, a bill cannot become an Act. However, when a bill

is presented to the Governor for his assent, the Governor is required to make

a declaration from the three options available to him under the substantive

part of Article 200, that is, to assent, to withhold assent, or to reserve the bill

for the consideration of the President.

170. The first proviso prescribes a mechanism whereby the Governor may return

a bill, which is not a Money Bill, back to the State legislature requesting

them to reconsider the bill or certain provisions thereof or consider the

possibility of making certain amendments to it. Once a bill is so returned by

the Governor, the State legislature is required to take note of the suggestions

made by the Governor and reconsider the bill accordingly. If the bill, after

such reconsideration by the State Legislature is again passed and presented

to the Governor, then in such circumstances as per the first proviso, the

Governor would then be prohibited from withholding his assent to the bill.

W.P. (C) No. 1239 of 2023 Page 145 of 414

171. The second proviso provides for a specific situation wherein the Governor

is mandated to reserve a bill for the consideration of the President if, in his

opinion, the bill upon becoming law, would so derogate from the powers of

the High Court as to endanger the position which the High Court has been

designed to fill by the Constitution.

172. One of the principal contentions advanced by the learned Attorney General

before us was that the first proviso to Article 200 provides an independent

fourth course of action to the Governor besides the three other options

available to him under the substantive part of the Article. To put it

differently, his argument was that the Governor may either withhold assent

to a bill simpliciter, as provided under the substantive part of Article 200, or

he may invoke the procedure prescribed under the first proviso and return

the bill back to the State legislature along with such a message as is

mentioned in the first proviso. In other words, he contended that where the

Governor declares a simpliciter withholding of assent, the same would be an

absolute veto of the bill, and the State legislature would have no occasion to

reconsider the bill in such a scenario. As a corollary the first proviso would

have no applicability and the State legislature would not be entitled to

reconsider the bill on its own motion.

W.P. (C) No. 1239 of 2023 Page 146 of 414

173. He argued that in cases where the bill suffers from some gross and manifest

unconstitutionality, the Governor need not invoke the procedure mentioned

in the first proviso and it would be sufficient if he declares a simpliciter

withholding of the bill. As a corollary, he submitted that the procedure

prescribed under the first proviso may be followed by the Governor when

he is of the belief that the bill, which is otherwise constitutional, may benefit

from certain amendments and in such a case he may send a message to the

State legislature suggesting certain amendments to the bill.

174. In other words, his contention was that simpliciter withholding is to be opted

for by the Governor in his position as a custodian of the Constitution in the

State, while the procedure prescribed in the first proviso is to be followed

by him in his role as a friend, philosopher and guide of the State

Government, with a view to improve an otherwise constitutionally

innocuous piece of legislation.

175. The aforesaid contention of the Attorney General was met by the petitioner

by placing reliance on the recent decision of this Court in State of Punjab

(supra) wherein it was held that the option of withholding of assent under

the substantive part of Article 200 is attached with the first proviso. The

petitioner contended that in light of the said observation, it is not open for

W.P. (C) No. 1239 of 2023 Page 147 of 414 the Governor to undertake any simpliciter withholding of a bill presented to

him and he must mandatorily resort to the procedure indicated in the first

proviso if he decides to withhold assent to a bill.

176. The Attorney General, on the other hand, raised doubts as regards the

correctness of the decision in State of Punjab (supra) and argued that the

said decision was rendered without having regard to the earlier decisions

given by larger Benches of this Court. In particular, he placed reliance on

certain observations made by the Constitution Bench in Valluri Basavaiah

Chowdhary (supra) to support his contention.

177. In response, the petitioner argued in favour of the decision in State of

Punjab (supra) and submitted that the observations made in Valluri

Basavaiah Chowdhary (supra) were made in a case where this Court was

not dealing with the interpretation of Article 200 of the Constitution. Thus,

the observations made therein as regards Article 200 could be said to be

obiter dicta at best. Mr. Dwivedi went to the extent of submitting that the

observations of this Court being relied upon by the Attorney General cannot

be construed as obiter dicta as they were mere passing remarks irrelevant to

the lis before the Court in that case.

W.P. (C) No. 1239 of 2023 Page 148 of 414

178. It is in this backdrop that we are called upon to ascertain whether the

observations made in Valluri Basavaiah Chowdhary (supra) can be

reconciled with the decision of this Court in State of Punjab (supra). The

consequence of this inquiry would be that it would determine whether the

constitutional scheme of Article 200 envisages a simpliciter withholding of

assent by the Governor. In other words, if the decision in State of Punjab

(supra) is found to be per incuriam, it would mean that the Governor under

Article 200 has the power of exercising an absolute veto upon any bill which

is presented to him for assent.

179. Before going into the question of whether the observations made in Valluri

Basavaiah Chowdhary (supra) could be said to be the ratio, obiter or

irrelevant to the lis, we deem it necessary to reproduce the observations

relied upon by the Attorney General in support of his submission:

“19. The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except in the case of a “Money Bill”, withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201.

W.P. (C) No. 1239 of 2023 Page 149 of 414 The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent when the Bill is reconsidered and passed by the Assembly. The second proviso to that article makes the reservation for consideration of the President obligatory where the Bill would, “if it becomes law”, derogate from the powers of the High Court. Thus, it is clear that a Bill passed by a State Assembly may become law if the Governor gives his assent to it, or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. The Governor is, therefore, one of the three components of a State legislature. The only other legislative function of the Governor is that of promulgating Ordinances under Article 213(1) when both the Houses of the State legislature or the Legislative Assembly, where the legislature is unicameral, are not in session. The Ordinance-making power of the Governor is similar to that of the President, and it is co-extensive with the legislative powers of the State legislature.” (Emphasis supplied)

180. The crux of the controversy as regards whether the first proviso provides an

independent course of action to the Governor lies in the use of the expression

“in which case the Bill falls through unless the procedure indicated in the

first proviso is followed”. However, what is interesting to note is that this

expression did not come to be used for the first time in Valluri Basavaiah

Chowdhary (supra). Much prior to the said decision, Justice S.R. Das (as

his lordship then was), in a concurring opinion in State of Bihar v.

Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in (1952)

1 SCC 528 observed as follows:

W.P. (C) No. 1239 of 2023 Page 150 of 414

“235. [...] The procedure to be followed after a Bill is passed by the State Assembly is laid down in Article 200. Under that article the Governor can do one of three things, namely, he may declare that he assents to it, in which case the Bill becomes a law, or he may declare that he withholds assent therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed, or he may declare that he reserves the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. Under that article the President shall declare either that he assents to the Bill in which case the Bill will become law or that he withholds assent therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed. Thus it is clear that a Bill passed by a State Assembly may become a law if the Governor gives his assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. In the latter event happening, the argument of the learned counsel for the petitioners will require that what has become a law by the assent of the President will, in order to be effective, have to be again reserved for the consideration of the President a curious conclusion I should be loath to reach unless I am compelled to do so. Article 200 does not contemplate a second reservation by the Governor. [...]”

(Emphasis supplied)

181. The same expression also came to be used by a three-Judge Bench in

Hoechst (supra) wherein it was observed thus:

“85. The constitutional position of a Governor is clearly defined. The Governor is made a component part of the legislature of a State under Article 168 because every Bill passed by the State legislature has to be reserved for the assent of the Governor under Article 200. Under that Article,

W.P. (C) No. 1239 of 2023 Page 151 of 414 the Governor can adopt one of the three courses, namely: (1) He may give his assent to it, in which case the Bill becomes a law; or (2) He may except in the case of a ‘Money Bill’ withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for consideration with a message; or (3) He may “on the advice of the Council of Ministers” reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent and the Bill is reconsidered and passed by the Assembly. [...]” (Emphasis supplied)

182. This Court in State of Punjab (supra) wherein one of us (J.B. Pardiwala J.)

was part of the Bench, observed that the second proviso to Article 200 is in

the form of an exception as it restricts the choice that the Governor otherwise

has under the substantive part of Article 200. It observed that the use of the

expression “shall not assent to, but shall reserve for the consideration of the

President” makes it abundantly clear that the Governor has no choice but to

reserve a bill for the consideration of the President if the bill is of the

description given in the second proviso. This Court further held that unlike

the second proviso, which is in the form of an exception, the first proviso is

in the form of an explanation and the same is made clear from the use of the

expression “may” in the first proviso. The Court observed that the expression

“may” has been used because the first proviso attaches with the option of

withholding of assent and it is a matter of choice for the Governor if he wants

W.P. (C) No. 1239 of 2023 Page 152 of 414 to withhold assent to a bill or if he wishes to exercise the other two options

available to him, namely, declaring assent or reserving the bill for the

consideration of the President. Taking note of the expression “shall not

withhold assent therefrom” used in the first proviso, the Court observed that

the expression signified that the first proviso was attached to the option of

withholding of assent alone. In lieu of this, the Court held that upon

withholding of assent to a bill, the Governor is mandatorily required to

follow the procedure prescribed in the first proviso. The relevant

observations are reproduced hereinbelow:

“20. The present case turns upon how the first proviso is to be construed. In construing the first proviso, it needs to be noted that the substantive part of Article 200 provides the Governor with three options : an option to assent; an option to withhold assent; and an option to reserve the Bill for the consideration of the President. The first proviso opens with the expression “the Governor may” in contrast to the second proviso which begins with the expression “the Governor shall not assent”. The “may” in the first proviso is because the first proviso follows the substantive part which contains three options for the Governor. The first proviso does not qualify the first option (where the Governor assents to the Bill) nor the third option reserving the Bill for consideration of the President. The first proviso attaches to the second option (withholding of assent) and hence begins with an enabling expression, “may”. By the mandate of the second proviso, there is an embargo on the Governor assenting to a Bill which derogates from the powers of the High Court under the Constitution. The Governor is by the mandate of the Constitution required to reserve such a Bill for consideration of the President.

W.P. (C) No. 1239 of 2023 Page 153 of 414 21. The second proviso impacts upon the option which is provided by the substantive part of Article 200 to the Governor to reserve a Bill for the consideration of the President by making it mandatory in the situation envisaged there. The option of reserving a Bill for the consideration of the President is turned into a mandate where the Governor has no option but to reserve it for the consideration of the President. The second proviso is, therefore, in the nature of an exception to the option which is granted to the Governor by the substantive part of Article 200 to reserve any Bill for the consideration of the President.

22. A proviso, as is well settled, may fulfil the purpose of being an exception. Sometimes, however, a proviso may be in the form of an explanation or in addition to the substantive provision of a statute. The first proviso allows the Governor, where the Bill is not a Money Bill to send it back to the legislature together with a message. In terms of the message, the legislature may be requested by the Governor to reconsider the entirety of the Bill. This may happen for instance where the Governor believes that the entirety of the Bill suffers from an infirmity. Alternatively, the Governor may request the legislature to reconsider any specific provision of the Bill. While returning the Bill, the Governor may express the desirability of introducing an amendment in the Bill. The desirability of an amendment may arise with a view to cure an infirmity or deficiency in the Bill. The concluding part of the first proviso however stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase “shall not withhold assent therefrom” is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor

W.P. (C) No. 1239 of 2023 Page 154 of 414 shall not withhold assent. The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State Legislature.

23. This is compatible with the fundamental tenet of a parliamentary form of Government where the power to enact legislation is entrusted to the elected representatives of the people. The Governor, as a guiding statesman, may recommend reconsideration of the entirety of the Bill or any part thereof and even indicate the desirability of introducing amendments. However, the ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone. That the message of the Governor does not bind the legislature is evident from the use of the expression “if the Bill is passed again …with or without amendments”.

24. The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage. In State of Telangana v.

Governor of Telangana [State of Telangana v. Governor of Telangana, (2024) 1 SCC 405] this Court observed that “The expression ‘as soon as possible’ has significant constitutional content and must be borne in mind by constitutional authorities.” The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation which squarely lies in the domain of the State Legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.

W.P. (C) No. 1239 of 2023 Page 155 of 414

25. The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of law- making by the State Legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is 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. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso. The Governor is under Article 168 a part of the legislature and is bound by the constitutional regime.

26. Insofar as Money Bills are concerned, the power of the Governor to return a Bill in terms of the first proviso is excluded from the purview of the constitutional power of the Governor. Money Bills are governed by Article 207 in terms of which the recommendation of the Governor is required for the introduction of the Bill on a matter specified in sub- clauses (a) to (f) of clause (1) of Article 199.”

(Emphasis supplied)

W.P. (C) No. 1239 of 2023 Page 156 of 414

183. Placing reliance on the expression “unless the procedure indicated in the

first proviso is followed” the learned Attorney General submitted that the

decision as regards whether the procedure prescribed under the first proviso

is to be invoked or not, is the discretion of the Governor. It is only when the

Governor decides to return the withheld bill along with a message that the

first proviso would come into play. In other words, if the Governor believes

that the bill is constitutionally infirm and beyond any remedial changes, then

he may choose not to return the bill along with a message and may simply

declare that he is withholding assent to the bill, in which case the bill would

“fall through” or lapse.

184. Although the argument is seemingly lucrative and appealing, and the

petitioner also could not provide a concrete reply to the same during the

course of the arguments and instead took shelter under the semantics of

obiter-dicta and ratio-decidendi, yet we deem it necessary to explain how

the argument is short-sighted, half-baked and suffers from an inherent

fallacy.

185. As the observation made by this Court in the three decisions referred to

above holds that the Bill would fall through unless the procedure prescribed

in the first proviso is followed, we first need to understand the procedure

that is prescribed in the first proviso. The proviso stipulates that when any

W.P. (C) No. 1239 of 2023 Page 157 of 414 bill, other than a Money Bill, is presented to the Governor for assent, he

may, as soon as possible, return it to the State legislature, together with a

message. As regards the contents of the message, the proviso stipulates that

the Governor may request the House(s) of the State legislature to reconsider

the bill or certain parts of it, and also explore the desirability of introducing

certain amendments as may be suggested by the Governor in the message.

Once the bill is so returned together with the message, the House(s) are

required to reconsider the bill in accordance with the recommendations

contained in the message of the Governor. If the bill is then passed again by

the House(s), with or without amendments, and presented to the Governor,

then the Governor cannot withhold assent from such a bill.

186. A close reading of the first proviso reveals that the action of returning the

bill to the State legislature by the Governor is qualified by the expression

“as soon as possible”. However, once the bill has been returned to the State

legislature by the Governor, there is no such expediency required on part of

the State legislature in reconsidering the bill. Further, once the bill is

reconsidered and passed again by the State legislature, there is again a

mandate on the Governor not to withhold assent to such a bill. The only

obligation upon the State legislature is to mandatorily take into consideration

the suggestions contained in the message sent by the Governor along with

the bill. However, the State Legislature is not under an obligation to

W.P. (C) No. 1239 of 2023 Page 158 of 414 mandatorily introduce any amendments suggested by the Governor and it

may proceed to repass the bill without any amendments.

187. Since there is no obligation on the State legislature to repass the bill returned

by the Governor under the first proviso, the expression “falls-through” can

only refer to those situations where the State legislature elects not to pass

the bill for reconsideration again, and in such circumstances causing the bill

to lapse. There is nothing in the first proviso which gives the Governor the

discretion to initiate the procedural machinery described therein. Therefore,

the first proviso, cannot be treated as an independent course of action

severable from the option of withholding of assent. The use of the expression

“as soon as possible” in the first proviso makes it clear that the Constitution

has imposed a sense of urgency upon the Governor and expects him to act

with expediency if he decides to declare the withholding of assent. At the

same time, that the use of the expression “may” in the first proviso, as

explained in State of Punjab (supra) does not confer a discretion upon the

Governor to decide whether to act in accordance with the procedure

prescribed in the first proviso. On the contrary, it only denotes that the first

proviso would be applicable only when the option of withholding of assent

is exercised. In other words, the expression “may” is used keeping in mind

that there are three options that the Governor may choose from when a bill

is presented to him for assent. Therefore, there is no requirement for

W.P. (C) No. 1239 of 2023 Page 159 of 414 construing the expression “may” as “shall” as was vehemently urged on

behalf of the petitioner, and the interpretation provided in State of Punjab

(supra) and further explained by us does not merit construing the use of

“may” as “shall”, as it would result in a logical absurdity insofar as it would

make the compliance with the procedure laid down in the first proviso

mandatory in the exercise of all three options available to the Governor

under the substantive part of Article 200 of the Constitution.

188. It is also remarkable to take note of the expression “if the bill is passed

again” which signifies that the ultimate discretion to decide whether the

State legislature wants to repass the bill or not continues to remain the

prerogative of the State legislature alone. Similarly, the use of the expression

“with or without amendment” denotes that even if the State legislature

decides to reconsider the bill, the discretion to repass it with or without the

amendments suggested by the Governor again continues to be their sole

prerogative. In order to obviate any further confusion, we deem it

appropriate to clarify that the use of the expression “shall reconsider the bill

accordingly” does not indicate that it is obligatory for the State legislature

to take up the bill for reconsideration. The word “shall” used in this

expression must be read in conjunction with the word “accordingly”. The

use of “shall” in this context is only for the limited purpose that if the State

legislature in its discretion does decide to not allow the bill to “fall through”

W.P. (C) No. 1239 of 2023 Page 160 of 414 by taking it up for reconsideration, then the scope of such reconsideration

must at the very least encompass the suggestions communicated by the

Governor in his message. The word “shall” used herein cannot be singled

out and construed devoid of its context.

189. The structure of Article 200 is also helpful in discerning the meaning of the

content that it holds. There is a substantive part of the provision and there

are two provisos to the substantive part. In the substantive part, there are

three options for the Governor to choose from, each separated by the

conjunction “or” thereby indicating the mutual exclusivity of the three

options. If the Governor opts for the first option and grants assent to the bill

presented to him, the first proviso doesn’t come into consideration.

Similarly, if the Governor chooses the third option and reserves the bill for

the consideration of the President, there is no occasion for the operation of

first proviso. The second proviso is overarching in nature and provides that

in the situation as described therein, the Governor can only exercise one

option, that is, reserve the bill for the consideration of the President.

190. The use of the expression “shall declare” in the substantive part of Article

200 indicates that the Governor is required to make a declaration from the

three choices provided to him under the substantive part and there cannot be

any fourth course of action. As soon as assent is granted, the bill becomes

W.P. (C) No. 1239 of 2023 Page 161 of 414 an Act and there is no scope thereafter for reservation for the consideration

of the President or returning back to the State legislature. If reservation for

the consideration of the President is declared then thereafter no returning of

the bill to the State legislature can take place, unless the President so directs

under the proviso to Article 201. Thus, it is only upon the declaration of

withholding of assent that the first proviso is animates into action.

191. Another important aspect that may be pointed out is that the observations

made in Valluri Basavaiah Chowdhary (supra) and Hoechst (supra),

respectively state that except in the case of a Money Bill, the Governor may

withhold assent. A bare reading of Article 200 indicates that there is no

restriction in the substantive part that prohibits the Governor from declaring

that he withholds assent to a Money Bill, and it is only under the first proviso

that such a restriction can be found. Therefore, it is only when the option of

the withholding of assent in the substantive part of Article 200 is read along

with the first proviso that Money Bills could be said to be excluded from the

purview of withholding of assent under the substantive part of Article 200. Thus, rather than fortifying the argument of the learned Attorney General,

the observations made in Valluri Basavaiah Chowdhary (supra) and

reiterated in Hoechst (supra) only reinforce the intricate and inseparable

connection between the exercise of the option of withholding of assent by

the Governor and coming into operation of the procedure prescribed in the

W.P. (C) No. 1239 of 2023 Page 162 of 414 first proviso. The dictum of the above mentioned two decisions in no way

renders the decision in State of Punjab (supra) per-incuriam, and rather

bolsters the line of reasoning adopted by this Court therein.

192. Therefore, the use of the expression “the Bill falls through unless the

procedure indicated in the first proviso is followed” should be construed in

the context of the entire procedure described in the first proviso. Seen thus,

it would mean that the bill would fall-through if the bill, having been

returned by the Governor, is not passed again by the State legislature and

presented again to the Governor for his assent. The fallacy of the argument

canvassed by the learned Attorney General lies in the very fact that he has

construed the observations of this Court, pertaining to compliance with the

procedural requirement under the first proviso, to mean that the mechanism

under the first proviso can only be initiated upon the desire and discretion of

the Governor.

193. This Court in Nambudiri (supra) explained as to how the State legislature

may cause a bill to fall through with which they no longer intend to proceed

by not reconsidering and repassing it, once it has been returned by the

Governor with the deceleration of withholding of assent. This Court held

that the stage of assent could only be arrived at after the stage of

W.P. (C) No. 1239 of 2023 Page 163 of 414 reconsideration and repassing by the State legislature has been successfully

crossed. The relevant observations read as under: -

“16. […] Similarly, when it is said that if the Bill is passed again the Governor shall not withhold assent therefrom it does not postulate the existence of the same House because even if it is the successor House which passes it it is true to say that the Bill has been passed again because in fact it had been passed on an early occasion. Besides, if the effect of Article 196 is that the Bills pending assent do not lapse on the dissolution of the House then the relevant provisions of Article 200 must be read in the light of that conclusion. In our opinion, there is nothing in the proviso to Article 201 which is inconsistent with the basic concept of democratic Government in asking a successor House to reconsider the Bill with the amendments suggested by the President because the proviso makes it perfectly clear that it is open to the successor House to throw out the Bill altogether. It is only if the Bill is passed by the successor House that the stage is reached to present it to the Governor or the President for his assent, not otherwise.”

194. There is one another way of looking at Article 200. The procedure, as

prescribed under the scheme of the provision, involves and envisages the

actual motion of a bill from one constitutional authority to another. The

Article starts with the requirement of the bill having to be mandatorily

presented to the Governor after it has been passed by the State legislature.

Thereafter, there is an obligation on the Governor to make a choice from one

of the three options provided in the substantive part of the Article and also

declare such a decision. Here, if assent is declared, then the bill becomes an

W.P. (C) No. 1239 of 2023 Page 164 of 414 Act and the Government may thereafter take steps to notify the same in the

official Gazette. If the Governor declares that bill is being reserved for

consideration of the President as per the second proviso or otherwise, then

the bill travels from the Governor to the President, whereupon Article 201

comes into play. The mechanism provided in the first proviso also envisages

the movement of the bill from the Governor to the State legislature and then

back to the Governor upon being passed again. The expression “as soon as

possible” appearing in the first proviso infuses a sense of urgency and

expediency in the mechanism of returning of bills by the Governor. It goes

without saying that the scheme of Article 200 is characterized by the

movement of the bill from one constitutional authority to another and that

too with a sense of expediency. It is trite to say that Article 200 occupies an

important role of giving the bills passed by the State legislature the authority

of an Act. Without the procedure envisaged under Article 200, the bills

remain mere pieces of paper, skeletons without any flesh or lifeblood

flowing through their veins, mere documentation of the aspirations of the

people without any possibility of bringing them to fruition. The only way by

which the option of withholding of assent provided in the substantive part

of Article 200 can be reconciled with the scheme permeating the remainder

of the provision is by reading it in conjunction with the first proviso. It is

only when the withholding of assent is tempered with the requirement of

following the procedure prescribed in the first proviso that the constitutional

W.P. (C) No. 1239 of 2023 Page 165 of 414 object of ensuring that the law-making machinery at the State level keeps on

running unhindered can be fulfilled.

195. Any other reading of the provision that construes the option of withholding

of assent without attaching it to the mechanism prescribed in the first proviso

would render the very idea of smooth functioning of the law-making process

nugatory and would vest with the Governor untrammeled powers of

thwarting the legislative machinery and in effect the will and aspirations of

the people whose voices the legislature represents.

196. Thus, in light of the aforesaid discussion, it becomes clear that there are only

three courses of action available to the Governor to choose from when a bill

is presented to him for assent under Article 200. The first proviso is not an

independent fourth course of action but intrinsically attached to the option

of withholding of assent. In other words, the first proviso is clarificatory and

only elaborates the procedure to be followed in case the option of

withholding of assent is invoked by the Governor.

197. The use of the expression “shall” in the substantive part of Article 200 read

with the expression “as soon as possible” used in the first proviso indicates

that there is no pocket veto available to the Governor while he is exercising

the powers under Article 200. As we have also discussed in the subsequent

W.P. (C) No. 1239 of 2023 Page 166 of 414 parts of this judgment, inaction on part of the Governor to take a decision

when a bill is presented to him under Article 200 is grossly violative of the

constitutional scheme of expediency which permeates the provision.

198. The Governor, in exercise of his powers under Article 200, also does not

possess any absolute veto. He is mandated to take a decision from among

the three options that are provided in the substantive part of the Article 200.

In case of withholding of assent, the Governor is bound to follow the

procedure prescribed under the first proviso and assent to the bill if it is

ultimately presented to him for assent after being repassed by the State

legislature. The Governor may also reserve certain bills for the consideration

of the President. However, in no case has the Governor been conferred with

the power to veto a bill which is presented to him. He is envisaged as an

intermediary stop in the journey of the bill towards becoming an Act. When

a bill comes to the Governor, he may forthwith assent to it, or postpone the

grant of assent by exercising the option of withholding of assent but only for

so long till the bill comes back to him after reconsideration, or he may

forward the bill to the President whereupon the procedure prescribed under

Article 201 is to be followed. Thus, in none of these cases can the Governor

permanently keep a bill with him without according assent to it, nor can he

declare a simpliciter withholding of assent thereby killing the bill.

W.P. (C) No. 1239 of 2023 Page 167 of 414 ii. Whether the Governor can reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance?

199. As discussed in the preceding issue, the Governor, in exercise of his powers

under Article 200, has three options to choose from. The use of the

conjunction “or” between the three options signifies that the options are

mutually exclusive and once one of the options is exercised by the Governor,

the other options become unavailable to choose from. Kameshwar Singh

(supra) held that there can be no reservation for the consideration of the

President once assent is declared and similarly, there is no requirement for

the Governor to assent to the bill, once the bill, having been reserved for the

consideration of the President, has received his assent.

200. We have also discussed in line with the decision in State of Punjab (supra)

that the option of withholding of assent is attached with the first proviso and

once the Governor declares the withholding of assent, the entire mechanism

which is laid down in the first proviso itself has to follow suit. Thus, the first

proviso to Article 200 is a complete code in itself as regards the procedure

which is to be followed once the Governor withholds assent and the rest of

the article has no applicability thereafter.

W.P. (C) No. 1239 of 2023 Page 168 of 414

201. It is also interesting to note that the expression “withhold assent” has been

employed in the substantive part of Article 200. The literal meaning of the

expression ‘withhold’ as defined in a number of dictionaries is to keep back;

to keep in one’s possession what belongs to or is due to others; to hinder; to

prevent; to defer; to postpone; to detain; to keep under control; to retain; to

keep from doing something; to refrain from doing something. Thus, it would

not be incorrect to construe that the option of withholding of assent has been

provided to the Governor under the substantive part only with a view to defer

or to postpone the grant of assent to a bill. Withholding of assent cannot be

construed to be the same as denying of assent or as conferring a power in

the Governor to veto a legislation passed by the State legislature, which

would be against the very fundamentals of a representative democracy.

202. Further, the scope of this deferment of assent by the Governor has been made

subject to the procedure laid down in the first proviso. The procedure laid

down in the first proviso ensures that the withholding of assent does not

become analogous to a pocket veto. The use of the expression “if the Bill is

passed again by the House or Houses with or without amendment” in the

first proviso clearly indicates that the role of the Governor under the first

proviso has been characterized as recommendatory in nature and that his

suggestions do not bind the legislature. Further, the expression “the

W.P. (C) No. 1239 of 2023 Page 169 of 414 Governor shall not withhold assent therefrom” in the first proviso leaves no

scope for the Governor to take any course of action other than discontinuing

the withholding of assent, which by necessary implication means to accord

assent to the bill. The expression also indicates that there is strict

constitutional prohibition against the Governor to not withhold assent to the

bill.

203. What follows from the aforesaid discussion is that once the option of

withholding of assent is exercised by the Governor, the mechanism under

the first proviso is set into motion to the exclusion of everything else

envisaged under the article. This is in view of the maxim Expressio Unius

Est Exclusio Alterius i.e., the expression of one thing is the exclusion of

another. Once the mechanism under the first proviso is set into motion and

the various stages are complied with, the only possible manner in which the

mechanism prescribed under the first proviso can conclude is by the

Governor granting assent to the bill. Thus, there is no scope for the Governor

to reserve a bill for the consideration of the President once it is presented to

him for reconsideration after compliance with the procedure laid down in

the first proviso.

204. However, for the sake of completeness, we deem it necessary to discuss a

possible scenario wherein the Governor may have the power to reserve the

W.P. (C) No. 1239 of 2023 Page 170 of 414 bill for the consideration of the President even after it is repassed by the State

legislature and presented to him for assent. Say, for instance, in a particular

case, the Governor withholds assent to a bill which is presented to him and

returns it to the House or the Houses together with a message requesting

them to reconsider certain aspects of the bill or introduce certain

amendments desirable thereto. However, the House or the Houses, in the

process of reconsideration, introduce certain changes which were not

suggested by the Governor in the message which he sent together with the

bill. In such a scenario, the House or Houses cannot be said to have

“reconsidered the Bill accordingly” which is a mandatory condition

prescribed under the first proviso. If the bill which is presented to the

Governor for assent in the second round could be said to have been

reconsidered by the House or Houses on wholly different and new grounds,

and if those changes are of such a nature where a reservation for the

consideration of the President may be desirable, then the Governor would

not be precluded from reserving the bill for the consideration of the

President.

205. However, if the bill is repassed by the House or Houses without

amendments, or only with such amendments as were suggested by the

Governor in his message, then the procedure prescribed under the first

proviso could be said to be fully complied with and the Governor would be

W.P. (C) No. 1239 of 2023 Page 171 of 414 bound to signify his assent thereto and would be precluded from reserving

the bill for the consideration of the President.

206. We say so because the procedure laid down in the first proviso cannot be

construed as giving the State legislature the unfettered power to introduce

changes to the bill which alter its very nature, or which, for instance, fall

foul of the second proviso to Article 200. In such a scenario, the Governor

would have all the three options which are available to him when a bill is

presented to him in the first instance. However, whenever the House or

Houses reconsider the bill “accordingly”, that is, in accordance with the

suggestions of the Governor and pass it with or without amendments, the

Governor is bound to act as per the clear constitutional directive laid down

in the first proviso.

207. As we shall also discuss later, any reservation of a bill by the Governor for

the consideration of the President on the ground that the bill was not

reconsidered as per the procedure prescribed in the first proviso would be

subject to judicial scrutiny.

208. Coming to the facts of the present case, out of twelve bills which are the

subject matter of the present petition, two were reserved by the Governor for

the consideration of the President in the first instance of their presentation.

W.P. (C) No. 1239 of 2023 Page 172 of 414 As regards the remaining ten bills, the Governor declared a withholding of

assent, however, the bills were returned without any message as is envisaged

under the first proviso. What stands out as a glaring omission on the part of

the Governor is that the day on which the withholding of assent was

declared, the decision in State of Punjab (supra) had already been passed

and even the notice in the present petition had been issued. Thus, it was

expected of the Governor that he would not declare a simpliciter withholding

of assent of the bills without specifying the reasons for such withholding and

also without making recommendations as regards the desirability of

introducing any amendments by the State legislature while reconsidering the

bills.

209. In light of the language of Article 200, and also keeping in mind its

interpretation by this Court in State of Punjab (supra), there was no room

for the Governor to declare a simpliciter withholding of assent without

taking recourse to the first proviso as that virtually amounts to the exercise

of absolute veto by the Governor, a power which is conspicuously absent

from our constitutional scheme.

210. In the absence of any message under the first proviso by the Governor, the

State legislature was left with no other option but to proceed on the

assumption that the bills were required to be reconsidered in its entirety. The

W.P. (C) No. 1239 of 2023 Page 173 of 414 State legislature proceeded on this assumption and the said 10 Bills were

reconsidered in a special sitting and were passed without any material

changes and presented to the Governor on the same day. Thereafter, the

Governor, rather than giving his assent to the Bills, went on to reserve the

Bills for the consideration of the President on the ground that the Bills were

repugnant to Entry 66 of the List I of the Schedule VII to the Constitution.

211. For the reasons that we have assigned in our foregoing discussion, we are of

the view that the Governor could not have reserved the Bills for the

consideration of the President once they were reconsidered by the State

legislature and presented to him without any amendments, particularly when

the Governor sent back the Bills to the State legislature without any message

on an earlier occasion. As a natural consequence of the reservation of the

bills for the consideration of the President having been found to be in

contravention of the procedure prescribed under Article 200 of the

Constitution and thus, illegal and void, any subsequent decision taken by the

President on those Bills would also be non-est and is thus declared to be void

ab-initio.

iii. Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution?

W.P. (C) No. 1239 of 2023 Page 174 of 414

212. It was argued by the petitioner that the Governor in exercise of his powers

under Article 200 is required to act promptly and the absence of any

prescribed time period should not be construed as allowing the Governor the

liberty to act on his own free will and volition. It was also submitted that

the expression “as soon as possible” appearing in the first proviso places an

obligation on the Governor to act promptly and with expedience.

213. The petitioner also placed reliance on the recommendations made by the

Sarkaria Commission and the Punchhi Commission to argue that the Court

should read in some time-limit into the scheme of Article(s) 200 and 201

respectively to prevent inaction on the part of the Governor and the

President.

214. Refuting the contention of the petitioner, the learned Attorney General

argued that in the absence of any prescribed time-limit in the text of the

provision, it would not be open to the Court to read in a time-limit and the

only way to do so would be by way of a constitutional amendment. He

placed reliance on the decision of this Court in Nambudiri (supra) to argue

that this Court had expressly rejected the idea that there is a time limit which

circumscribes the exercise of functions of the Governor under Article 200. W.P. (C) No. 1239 of 2023 Page 175 of 414

215. The arguments advanced before us present an interesting question whether

it would be open to the courts to read in a time limit for the exercise of a

power by a constitutional authority where no such limit is prescribed by the

Constitution. We have expressly held during the course of answering the

previous issue that the scheme of Article 200 does not envisage either the

exercise of a pocket or an absolute veto by the Governor. The use of the

expression “shall” in the substantive part indicates that the Governor is

under an obligation to choose from one of the three options that are made

available to him. By virtue of the first proviso attaching itself to the option

of withholding of assent, as discussed earlier, the possibility of an absolute

veto is also ruled out as the Governor must assent to the bill once it is

presented to him after the procedure prescribed in the first proviso is

complied with.

216. However, unlike many countries across the globe wherein a provision for

deemed assent upon the expiry of the specified time period has been made,

there is no such provision in our Constitution. The only manner in which a

temporal imperative has been weaved into the scheme of Article 200 is by

the use of the expression “as soon as possible” in the first proviso. The said

expression, which also appears in Article 111 of the Constitution, was the

subject of some debate in the Constituent Assembly.

W.P. (C) No. 1239 of 2023 Page 176 of 414

217. Article 111, which provides for the President’s assent to bills passed by

Parliament was originally numbered as Article 91 under the Draft

Constitution and it provided a time-limit of six-weeks to the President to

send back the bill to the House(s) for reconsideration. The Draft article read

as follows:

“When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom:

Provided that the President may, not later than six weeks after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provision thereof, and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and the Houses shall reconsider the Bill accordingly.”

218. During the Constituent Assembly debates, Dr. B.R. Ambedkar moved an

amendment to substitute the expression “not later than six weeks” with “as

soon as possible”. Further in the debate, Shri Naziruddin Ahmad advocated

for a change in the aforesaid amendment and sought to substitute the term

“as soon as possible” with “as soon as may be”. His contention rested on

the reasoning that the phrase, “as soon as possible” which was introduced

by Dr. Ambedkar in his amendment in place of the original wording used in

Article 91, that is, “not later than six weeks”, imposed an unduly stringent

W.P. (C) No. 1239 of 2023 Page 177 of 414 obligation upon the President. He was of the opinion that “as soon as

possible” mandates immediate action, thereby curtailing the President’s

scope to engage in a careful and deliberate review of the bill presented for

assent. He expressed concern that such a rigid constraint could give rise to

hasty decisions, devoid of any careful examination of the presented bill. In

his view, the formulation ran the risk of undermining the quality of the

President’s judgment under Article 111. He expressed his opinion as

follows:

“[...] The Proviso is to the effect that “the President may, as soon as possible, after the presentation of the Bill, return the Bill,” and so on. I want to make it “as soon as may be”. If we leave it exactly as Dr. Ambedkar would have it, it leaves no margin. ‘As soon as possible’ means immediately. Possibility which means physical possibility is the only test. It may leave no breathing time to the President. The words ‘may be’ give him a reasonable latitude. It would mean, “reasonably practicable”. This is the obvious implication. That is the only reason why I have suggested amendment.”10

219. To avoid the aforesaid possibilities, Shri Naziruddin Ahmad proposed the

adoption of “as soon as may be”, which he interpreted to mean “as soon as

is reasonably practicable”. In his opinion, this change would allow the

President greater flexibility and sufficient time to thoroughly examine the

provisions of the bill presented to him. Such freedom would prove

particularly valuable when the President contemplates returning the bill to

10 8, CONSTITUENT ASSEMB. DEB., (May 20, 1949) 192.

W.P. (C) No. 1239 of 2023 Page 178 of 414 the House(s) for reconsideration, especially in circumstances where

amendments might be recommended. The essence of Shri Ahmad’s

amendment was to safeguard the President’s ability to render well-reasoned

and thoughtful decisions without any rigid time constraints.

220. Shri P.S. Deshmukh expressed his opposition to the amendment proposed

by Dr. B.R. Ambedkar, deeming the suggested substitution of the words as

unnecessary. He, on the other hand, argued that the original phrasing,

particularly the expression “not later than six weeks”, ought to remain

unaltered, as it established a precise time frame for the President to act

accordingly. He further argued that this specific time frame mandated that

the President must convey his decision to return the bill for reconsideration

as expeditiously as possible, and in no event beyond six-weeks. He opined

that preserving the words “not later than six weeks” was quintessential to

ensure timely action, thereby preventing undue delays in the legislative

process to send the bills back to the House(s) for reconsideration.

221. Shri H.V. Kamath vehemently opposed the amendment put forward by Dr.

Ambedkar. Advocating for expeditious and timely action, he argued that,

“in human nature, if you will permit me to say so, unless there is a

compelling sense of duty or service, there is always a tendency to

W.P. (C) No. 1239 of 2023 Page 179 of 414 procrastinate”.11 It was his opinion that such tendencies to procrastinate

must be rooted out by infusing a standard of duty or service to ensure timely

action on part of the President. He further opined that there exists no

assurance that every President of India will consistently adhere to the

principle of timely action in legislative processes. Therefore, according to

him, it was very necessary that the “Constitution should provide specifically

a time limit for a contingency of this nature”12. He believed the phrase “as

soon as possible” to be vague, purposeless and meaningless, and argued that

such vague phrases have no place in a provision of such an important nature.

222. In light of the debate which took place on 20 th May 1949, the proposed

amendment to Article 91 was adopted by the Assembly, thereby substituting

the expression “not later than six weeks” with “as soon as possible” and the

same came to be added to the Constitution.

223. What can be postulated from this discussion of the relevant Constituent

Assembly debates is that although our constitutional makers expressed their

concerns for the possibility of an undue delay in the legislative process on

account of the human nature to procrastinate, yet they nevertheless

proceeded to adopt the phrase “as soon as possible” in the original Article

11 8, CONSTITUENT ASSEMB. DEB, (May 20, 1949) 194.

12 8, CONSTITUENT ASSEMB. DEB. (May 20, 1949) 195.

W.P. (C) No. 1239 of 2023 Page 180 of 414

91. This adoption and amendment of draft Article 91 reflects a sense of

inherent trust reposed by the Constituent Assembly that the President would

execute his functions as enshrined under Article 111 of the Constitution in a

timely and efficient manner.

224. The expression also came to be adopted mutatis mutandis in Article 200.

The experience of the working of the Constitution, more particularly, Article

200, has shown that the apprehensions expressed by some of the members

of the Constituent Assembly have unfortunately proven to be prophecy. As

we have discussed in the preceding paragraphs, one of the prominent

grievances of the State governments as recorded by the Sarkaria

Commission and Punchhi Commission reports was that the exercise of the

power under Article 200 by the Governor, not being a time-bound process,

leads to significant legislative delay and that certain bills are withheld in the

Governor’s secretariat for years.

225. Not taking any action on the bills for an unreasonable and prolonged period

of time virtually vests the Governor with the power of pocket veto and the

same cannot be held to be permissible within our constitutional scheme. Dr.

Singhvi had submitted during the course of his arguments that there is no

scope for the Governor to decide not to decide. Article 200, being the final

step in the process of the birth of a legislative enactment, the stage wherein

W.P. (C) No. 1239 of 2023 Page 181 of 414 life is breathed into an otherwise lifeless document, cannot be interpreted in

a manner which allows the Governor to remain silent and exhibit inaction

upon the bills which are submitted to him after having received the approval

of the majority of the State legislature.

226. This Court in Durga Pada Ghosh v. State of West Bengal reported in (1972)

2 SCC 656 whilst dealing with a writ in the nature of habeas corpus was

called upon to examine the meaning and import of the expression “as soon

as may be” appearing in Article 22(5) of the Constitution and its significance

in communication of the grounds of detention and disposal of the

representation of the detenu. In the said case, the detenu came to be arrested

and put in preventive detention in December, 1971. The detenu moved a

representation which was received in early January, 1972. However, his

representation came to be considered by the State government therein only

in February, 1972 and his detention was confirmed and communicated in

March, 1972. The detenu challenged the order of preventive detention

passed against him on the ground that there was an inordinate delay of

almost two months on part of the State government in considering his

representation even though the same had been received in January itself.

This Court held that the aforesaid expression must be seen in the context of

the scheme underlying Article 22, more particularly, the importance that it

occupies in the constitutional set-up as regards the personal freedom of an

W.P. (C) No. 1239 of 2023 Page 182 of 414 individual and in a manner whereby the provision does not lose both its

purpose and meaning. The words “as soon as may be” in such context

implies anxious care on the part of the authority concerned to perform its

duty in this respect, as early as practicable, without avoidable delay. The

course of action which is expected from the concerned authority; being

communication of the grounds of arrest and disposal of the representation,

was required to be considered with a sense of urgency and must be done

with due promptitude or expedition and with reasonable dispatch. It was

further held that although there is no definite time-limit which can be laid

down within which such actions must be done, yet at the same time, whether

the appropriate authority had disposed of its obligation as expeditiously as

possible ought to be looked into keeping in mind the peculiar facts and

circumstances of each case. It further held that such constitutional

obligations cannot be ignored or justified on reasons of administrative delay

except where it is shown that ample arrangements were made to cope with

the situation that led to a delay and a certain degree of priority was accorded.

The relevant observations read as under:

“7. Now it is not disputed before us that on the question of delay in considering the representation by the State Government no hard and fast rule can be laid down and it is a matter which falls for decision on the facts and circumstances of each case. It may in this connection be pointed out that in Jayanarayan case the writ petition was referred to a Bench of five Judges to consider as to what would be the question of period within which the State

W.P. (C) No. 1239 of 2023 Page 183 of 414 Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between Shyamal Chakraborty v. Commissioner of Police, Calcutta and Khairul Haque v. State of West Bengal. After considering the various decisions on the point this Court expressly concluded thus:

“No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J., who spoke for this Court in the case of Khairul Haque : ‘it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning’.”

8. The scheme underlying Article 22 of the Constitution highlights the importance attached in our constitutional set-

up to the personal freedom of an individual. Sub-articles (1) and (2) refer to the protection against arrest and detention of a person under the ordinary law. Persons arrested or detained under a law providing for preventive detention are dealt with in sub-articles (4) to (7). Sub-article (5) says that when a person is detained in pursuance of an order under a law providing for preventive detention the grounds on which the order is made have to be communicated to the person concerned as soon as may be and he has to be afforded earliest opportunity to represent against the order. The object of communicating the grounds is to enable the detenu to make his representation against the order. The words “as soon as may be” in the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as early as practicable without avoidable delay.

W.P. (C) No. 1239 of 2023 Page 184 of 414 Similarly, when the representation is made it is in the fitness of things that the said representation should be considered with the same sense of urgency with which the grounds are intended to be communicated to the detenu. That is the only way in which the purpose, for which the earliest communication of the grounds to the person concerned is provided, can be achieved. The representation must, therefore, be considered with due promptitude or expedition and without avoidable delay, in other words with reasonable dispatch. As held by this Court in Jayanarayan case, the representation should be considered as expeditiously as possible. As the question of delay in considering the representation falls for determination on the facts and circumstances of each case the binding force of a past precedent for a later case would largely depend on the degree of close similarity of the circumstances dealt with therein. [...]” (Emphasis supplied)

227. In Keisham (supra) the question that arose before this Court was whether

courts can direct the Speaker to decide disqualification petitions pending

before it within a reasonable period of time, and this Court speaking

eruditely through R.F. Nariman, J., answering the aforesaid question in an

affirmative held as under:

(i) First, that the Speaker, being the quasi-judicial authority for the

purposes of the Tenth Schedule, is duty bound to take a decision on

disqualification petitions within a reasonable time. Any failure of the

Speaker in exercising his jurisdiction or refraining from deciding such

petition within a reasonable time would be an error that would attract

W.P. (C) No. 1239 of 2023 Page 185 of 414 the scrutiny of the courts in judicial review, notwithstanding the

exclusive jurisdiction to the exclusion of the courts that has been

conferred upon the Speaker in terms of Paragraph 6 of the Tenth

Schedule. The relevant observations read as under: -

24. It is clear from a reading of the judgment in Rajendra Singh Rana and, in particular, the underlined portions [italicised herein] of paras 40 and 41 that the very question referred by the two-Judge Bench in S.A. Sampath Kumar has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in Para 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review.

(Emphasis supplied)

(ii) Secondly, it observed that although Paragraph 6 of the Tenth

Schedule vests the Speaker with an exclusive jurisdiction to decide

disqualification petitions and ousts the reach of courts in such matters,

yet it does not mean that there is no scope of judicial review by the

courts or that the power to pass any direction(s) to the Speaker acting

under the Tenth Schedule does not exist. It was observed that the true

purport of such exclusive jurisdiction was only to ensure that no

obstacle comes in the way of the Speaker in deciding such petitions

W.P. (C) No. 1239 of 2023 Page 186 of 414 by way of injunctions from the courts. However, it by no means

interdicts the exercise of judicial review in aiding a prompt decision

on such disqualification petitions to ensure that the Speaker decides

these issues within a reasonable period. The relevant observations

read as under:

“30. A reading of the aforesaid decisions, therefore, shows that what was meant to be outside the pale of judicial review in para 110 of Kihoto Hollohan are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paras 110 and 111 of Kihoto Hollohan do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. [...]”

(iii) Lastly, it held that although what would be a ‘reasonable period’ for

deciding such petitions by the Speaker largely depends on the facts of

each case yet, where there are no exceptional circumstances, the

Speaker should arrive at a decision within an outer time-limit of three-

months so that the avowed constitutional objective of anti-defection

W.P. (C) No. 1239 of 2023 Page 187 of 414 under the Tenth Schedule is not defeated. The relevant observations

read as under:

“30. [...] What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana, if they have infracted the provisions of the Tenth Schedule.”

(Emphasis supplied)

228. The aforesaid view was reiterated in State of Telangana v. Governor of

Telangana reported in (2024) 1 SCC 405 wherein this Court whilst dealing

with a similar issue pertaining to the pendency of a few bills before the

Governor of Telangana, held that the expression “as soon as possible” in

Article 200 has significant constitutional content and must be borne in mind

by the constitutional authorities. The relevant observations read as under:

“2. The first proviso to Article 200 states that the Governor

W.P. (C) No. 1239 of 2023 Page 188 of 414 may “as soon as possible after the presentation” of the Bill for assent, return the Bill if it is not a Money Bill together with a message for reconsideration to the House or Houses of the State Legislature. The expression “as soon as possible” has significant constitutional content and must be borne in mind by constitutional authorities.”

(Emphasis supplied)

229. In Ram Chand (supra) certain parcels of land had been demarcated and

declared for compulsory acquisition vide a notification, sometime between

the years 1959-1965. However, the awards for compensation came to be

passed almost fourteen-years later in the year 1980. These awards came to

be challenged before this Court on the ground that since the statute in

question provides for payment of compensation in respect of the acquisition

made at the market value of the land, as it stood, at the time of publication

of the notification for declaration, the same necessarily meant that

compensation ought to be paid expeditiously and without delay. This Court

held that although the legislature by way of an amendment has now

prescribed a time-limit for making an award, yet it does not mean that prior

to such amendment there was no time-limit for payment of compensation or

that an award could be passed by the authorities at their own pace and

leisure. It held that where for exercise of any power no time-limit has been

prescribed, such power has to be exercised within a reasonable period of

time. It further held that sans any fixed time-limit, such powers cannot be

W.P. (C) No. 1239 of 2023 Page 189 of 414 exercised or subjected to delay in a manner that violates or circumvents the

object of the statute and the constitutional mandate under Article 31A of

timely acquisition and adequate compensation, respectively. The relevant

observations read as under:

“14. The Parliament has recognized and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within a reasonable time and because of that now a time-limit has been fixed for making of the award, failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or time-frame and to complete the same as and when they desired? It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable. This aspect of the matter can be examined in the light of second proviso to Article 31-A of the Constitution, which in clear and unambiguous terms prohibits making of any law which does not contain a provision for payment of compensation at a rate, which shall not be less than the market value thereof. The Act is consistent with the second proviso to Article 31-A, because it provides for payment of compensation at the market value of the land acquired. But, whether the constitutional and statutory requirement of the payment of the market value to the persons, whose lands have been compulsorily acquired, is not being circumvented and violated by keeping the land acquisition proceedings pending for more than a decade and half, without making the awards and paying the compensation, which has been pegged to the dates of notifications under sub-section (1) of Section 4 of the Act,

W.P. (C) No. 1239 of 2023 Page 190 of 414 which in the present cases had been issued 14 to 21 years before the making of the awards. [...]”

(Emphasis supplied)

230. In A.G. Perarivalan (supra) the facts germane for our discussion are that

the appellant convict therein had filed a mercy petition under Article 161 to

the Governor in December, 2015. The State Cabinet recommended the grant

of remission to the Governor in 2018. However, the Governor did not take

any decision on the mercy petition for two years despite receiving the

recommendation of the State Cabinet. Thereafter, upon a direction of this

Court, the Governor in 2021, by an order, forwarded the mercy petition of

the appellant to the President citing that the Union is the appropriate

authority to decide the same. This reference came to be challenged before

this Court wherein it was held as under:

(i) First, it was held that the “limits within which the executive

Government can function under the Indian Constitution can be

ascertained without much difficulty by reference to the form of the

executive which our Constitution has set up”. The Court observed that

although the Governor is the head of the executive in the State, yet in

actuality, it is the Council of Ministers that carries on the executive

Government. It held that as per Article 163, the Governor shall

exercise his functions provided under different provisions of the

W.P. (C) No. 1239 of 2023 Page 191 of 414 Constitution only under the aid and advice of the Council of Ministers

except where he under the Constitution has been expressly authorised

to exercise such functions in his discretion. This Court, speaking

through L. Nageswar Rao, J., described this relation of the Governor

and the Council of Ministers as “a hyphen which joins, a buckle which

fastens the legislative part of the State to the executive part”. The

relevant observations read as under:

“18. The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution. Article 162 makes it clear that the executive power of the State shall extend to matters with respect to which the legislature of the State has power to make laws. Article 163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

19. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up.

Our Constitution, though federal in its structure, is modelled on the British

W.P. (C) No. 1239 of 2023 Page 192 of 414 parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The Governor occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part

20. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360, the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the

W.P. (C) No. 1239 of 2023 Page 193 of 414 President or of the Governor in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.

21. Even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion.”

(ii) Secondly, it observed that the law is clear and explicit – the advice

of the State Cabinet is binding on the Governor when it comes to the

exercise of powers under Article 161. In the absence of any other

provision under the Constitution or any statute in this regard, the

Governor could not have deviated from the binding recommendations

of the State Cabinet and referred the mercy petition to the President.

It was held that such an action is contrary to the constitutional scheme.

The relevant observations read as under:

“24. The law laid down by this Court, as detailed above, is clear and explicit. The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to

W.P. (C) No. 1239 of 2023 Page 194 of 414 us nor any satisfactory response tendered as to the source of the Governor's power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above. [...] It is relevant to point out that the recommendation made by the State Cabinet was on 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the appellant's sentence to the President of India.” (Emphasis supplied)

(iii) Thirdly, as regards the inaction of the Governor in deciding the mercy

petition for more than two-years, this Court held that although there

is a certain degree of immunity with respect to the exercise of powers

by the Governor under the Constitution, yet it is an equally settled

position that the courts have the power to judicially review the

functioning of the Governor on certain grounds. It held that a non-

exercise of these powers, such as, under Article 161 is one such

ground for the exercise of judicial review as the said provision

pertains to the liberty of individuals and any inexplicable delay not on

W.P. (C) No. 1239 of 2023 Page 195 of 414 account of the prisoners, is inexcusable. The relevant observations

read as under:

“24. [...] It is relevant to point out that the recommendation made by the State Cabinet was on 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the appellant's sentence to the President of India.

25. We are fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties.

However, as held by this Court in numerous decisions, this Court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds.

Non-exercise of the power under Article 161 is not immune from judicial review, as held by this Court in Epuru Sudhakar v. State of A.P. Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence.”

(Emphasis supplied) W.P. (C) No. 1239 of 2023 Page 196 of 414

(iv) Lastly, as regards the contention of the respondents that the decision

of the Governor to forward the mercy petition to the President was

done in exercise of his discretion owing to the irrational

recommendation of the Cabinet in line with the ratio of M.P. Special

Police (supra), this Court held that the aforesaid decision would not

be applicable, since there is nothing to make out a case of irrational

or non-consideration of relevant factors by the State government to

warrant the Governor exercising his discretion and deviating from

their recommendations as laid down in M.P. Special Police (supra).

The relevant observations read as under:

“29. We are afraid that the judgment of this Court in M.P. Special Police Establishment is not applicable to the facts of the present case. No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the State Cabinet having based its recommendation on extraneous considerations. Moreover, in the said case, the Governor had taken a decision which was subsequently challenged, unlike the present case, where the Governor has merely forwarded the recommendation made by the State Cabinet to the President of India.”

Accordingly, this Court held as under:

“38. In conclusion, we have summarised our findings below:

W.P. (C) No. 1239 of 2023 Page 197 of 414 38.1. The law laid down by a catena of judgments of this Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.

38.2. Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.

38.3. The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two-and-a-half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby “the Governor is but a shorthand expression for the State Government” as observed by this Court.

38.4. The judgment of this Court in M.P. Special Police Establishment has no applicability to the facts of this case and neither has any attempt been made to make out a case of apparent bias of the State Cabinet or the State Cabinet having based its decision on irrelevant considerations, which formed the fulcrum of the said judgment. [...]”

(Emphasis supplied)

W.P. (C) No. 1239 of 2023 Page 198 of 414

231. What is discernible from a reading of the decisions discussed above is that

despite there being no prescribed time-limit for the Governor to take a

decision under Article 200, the provision cannot be read in a manner which

allows the Governor to not take action upon bills which are presented to him

for assent and thereby delay and essentially roadblock the law-making

machinery in the State. As held in A.G. Perarivalan (supra), the inaction of

the Governor would be subject to judicial review and in the absence of any

cogent reasons for the delay, it would be open to the courts to issue directions

for a time-bound decision on a case-to-case basis.

232. In Purushothaman Nambudiri (supra), two questions fell for the

consideration of this Court; first, whether a bill which has been pending for

assent before the President or the Governor could be said to have lapsed with

the dissolving or dissolution of the State legislative assembly and secondly,

whether Article 200 mandates that a bill sent back by the President or the

Governor for reconsideration must be looked into by the very same House

that originally passed it. Before looking into the effect of the dissolution of

the House on bills pending before the Governor for assent, the Court, while

examining the effect of prorogation of the House on the bills pending before

the State legislature, observed that Article 196 of the Constitution that deals

with the introduction and passing of bills in the State legislature reinforces

that the parliamentary form of government established under the

W.P. (C) No. 1239 of 2023 Page 199 of 414 Constitution is markedly different from the Parliament in England inasmuch

as clause (3) of Article 196 explicitly stipulates that a bill pending in the

legislature of a State will not lapse by reason of the prorogation of the House

or Houses thereof.

233. Thereafter, the Court observed that Article 196(5) provides for three

categories of cases where a bill pending before a Legislative Assembly

would lapse upon its dissolution. Those are as follows:

a. A bill pending before the Legislative Assembly of a unicameral State

legislature;

b. A bill pending before the Legislative Assembly of a bicameral State

legislature; or

c. A bill which originated in the Legislative Assembly and is yet to reach

the Legislative Council.

234. In light of the aforesaid, the Court reached the conclusion that since Article

196 only stipulates as to when a bill pending in the State legislature could

be said to have lapsed, be it the Legislative Assembly or the Legislative

Council, any bill which has been passed by the State legislature and is

pending assent of the Governor or President, would be outside the ambit of

the doctrine of lapse of pending business as contained in Article 196(5) of

the Constitution. Had the intent of the framers of the Constitution been

W.P. (C) No. 1239 of 2023 Page 200 of 414 otherwise, a specific provision to that effect providing for lapse of a bill

awaiting assent would have been inserted. The natural corollary of the

omission of the aforesaid is that Article 196(5) is exhaustive in nature, and

only the circumstances enumerated therein would result in any lapse of a

pending bill, as otherwise there was no need for inserting clause (5) in

Article 196 after having already provided the situations where a bill would

not lapse in clause(s) (3) and (4) of the Constitution respectively.

235. Thereafter, the Court adverted to Articles 200 and 201 of the Constitution

respectively in order to determine the effect of dissolution on bills pending

the assent of the Governor or the President. Adverting to the procedure

prescribed under Articles 200 and 201 respectively, the Court noted that both

the Articles do not prescribe a time-limit within which the Governor or

President are required to come to a decision on the bill presented to him

unlike other provisions in the Constitution where it was felt necessary and

expedient to prescribe a time-limit such as Articles 197(1)(b) and (2)(b)

respectively. This, in the opinion of the Court, necessarily meant that the

omission in prescribing a time-limit within which the Governor or the

President should reach a decision under Articles 200 and 201 respectively

suggests that the framers of the Constitution knew that a bill pending the

assent of the Governor or the President does not stand the risk of getting

lapsed on the dissolution of the Assembly. Any other contrary view would

W.P. (C) No. 1239 of 2023 Page 201 of 414 lead to a chilling effect whereby a fair number of bills which may have been

passed by the Assembly during the last months of its existence, may be

exposed to the risk of lapse, consequent to the dissolution of the Assembly,

unless assent is either withheld or granted before the date of the dissolution,

which could not have been the intention in the absence of a time-limit under

Articles 200 and 201 respectively. The relevant observations read as under:

“15. It is clear that if a Bill pending the assent of the Governor or the President is held to lapse on the dissolution of the Assembly it is not unlikely that a fair number of Bills which may have been passed by the Assembly, say during the last six months of its existence, may be exposed to the risk of lapse consequent on the dissolution of the Assembly, unless assent is either withheld or granted before the date of the dissolution. If we look at the relevant provisions of Articles 200 and 201 from this point of view it would be significant that neither Article provides for a time limit within which the Governor or the President, should come to a decision on the Bill referred to him for his assent. Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide : Article 197(1)(b) and (2)(b)). In fact the proviso to Article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message. Therefore, the failure to make any provision as to the time within which the Governor or the President should reach a decision may suggest that the Constitution-makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of lapse on the dissolution of the Assembly. That is why no time limit was prescribed by Articles 200 and 201. Therefore, in our opinion, the scheme of Articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor

W.P. (C) No. 1239 of 2023 Page 202 of 414 or the President does not lapse as a result of the dissolution of the Assembly, and that incidentally shows that the provisions of Article 196(5) are exhaustive.”

(Emphasis supplied)

236. What is clearly discernible from a plain reading of the aforesaid decision is

that the observations as regards the absence of a time-limit under Articles

200 and 201 respectively were made in the context of the impact of

dissolution of the State legislature on the bills which were pending assent

from the Governor. Applying the doctrine of constitutional continuity of the

State legislature as an institution and the absence of any specific time-limit

prescribed under Article 200, the Court arrived at a finding that such bills

would not lapse by virtue of dissolution of the State legislature. It is

important to note that the observations in Nambudiri (supra) were not made

in the context of the expediency with which the Governor is expected to act

in discharge of his duties under Article 200. Further, while this Court said

that there was no prescribed time-limit in Article 200, it held that the reason

for this was that the framers of the Constitution knew that such a bill would

not lapse automatically with the dissolution of the House. It was never

observed or even remotely indicated by this Court that the exercise of power

by the Governor under Article 200 was not of an urgent or expedient

character and thus, could be exercised even beyond reasonable time.

W.P. (C) No. 1239 of 2023 Page 203 of 414 237. It is crucial to understand that the prescription of a general time-limit by this

Court within which the ordinary exercise of power by the Governor under

Article 200 must take place, is not the same thing as amending the text of

the Constitution to read in a time-limit, thereby fundamentally changing the

procedure and mechanism of Article 200. This is because, reading such a

time-limit into the provision neither militates against the underlying object

of the said provision nor does it alter the procedure that is envisaged therein.

On the contrary, it only reinforces the sense of expediency and urgency that

has been time and again emphasized since the adoption of the Constitution.

The reason why the prescription of a time-limit does not tantamount to an

alteration or amendment is because the time-limit that is being prescribed by

cannot be understood to be a hanging sword on the Governor whereby even

an unavoidable non-compliance would automatically ensue consequences of

‘assent’. The nature of such prescription is quite different which may be

better explained through the concept of judicial review.

238. For the exercise of judicial review, the existence of a certain set of definitive

standards against which the courts can embark upon their scrutiny, is

quintessential. Without these standards, the power of judicial review could

be said to be ineffective in certain contexts which shall be elucidated upon

in the latter parts of the judgment. The doctrine of stare-decisis is not just

concerned with ensuring that decisions of higher courts or of larger benches

W.P. (C) No. 1239 of 2023 Page 204 of 414 are duly adhered to and questions of law already settled and put to quietus

by higher judicial authorities are not disturbed. The idea is also to infuse a

sense of judicial comity within the intertwined hierarchical courts in the

manner of their functioning. Additionally, one of the core precepts of stare-

decisis is that not only the decisions but the very decision-making process

of the courts are predicated upon a discernible standard, often coined as

‘judicially manageable standards’. We shall discuss this in more detail in the

later parts of this judgment.

239. Any time-limit in the exercise of powers in terms of Article 200 of the

Constitution should not be construed as timelines laid within the edifice of

the provision, rather should be understood as timelines that would serve as

a lodestar for the purpose of exercise of judicial review by the courts, a

benchmark tool to aid and enable the courts in ascertaining if any inaction

or malfeasance has occasioned in the exercise of such powers. These

timelines no doubt demand the earnest adherence by the Governor, however,

these being nothing more than tools upon which scrutiny by judicial review

is to be premised, remain as prescriptions within the realm of judicial review

alone and do not transgress into the legislative bounds or amount to

alteration of the text or authority of Article 200 of the Constitution. The

reason why these time-lines do not immolate the very fabric of Article 200

is because the said provision even with the infusion of these time-limit still

W.P. (C) No. 1239 of 2023 Page 205 of 414 remains markedly different from its counterpart provisions where such time-

limits are legislatively prescribed. For instance, Article 75 of the

Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of

the U.S. Constitution, where if no decision is taken within the stipulated

time-limit by the President then the bills are deemed to have been assented

to.

240. Thus, it is important to take note of this very fine but pertinent distinction

that the prescription of a time-limit by this Court into Article 200 of the

Constitution does not fundamentally change the procedure which has been

envisaged. While the reading in of a time-limit under Article 200 would have

meant that there would be deemed assent upon failure of the Governor to

comply with the said timeline, the prescription of a reasonable time period

does not introduce any such mechanism or deeming fiction in Article 200.

241. What emerges from the above is that the fine but pertinent distinction

between the time-limits that are expressly prescribed and those that are

judicially evolved is only that in the former the consequence of deemed

assent emanates from the provision itself whereas in the latter there could be

no such consequence except to the extent that the courts judicially reviewing

the action or inaction can direct a decision to be taken within a time-bound

manner, or in exceptional cases like the one at hand, deem the assent to have

W.P. (C) No. 1239 of 2023 Page 206 of 414 been granted under Article 142 of the Constitution, which we shall again

discuss in the later parts of this judgment.

242. When prescribing such a time-limit for the exercise of power under Article

200, we are guided by the inherent expedient nature of the procedure

prescribed thereunder and the well-settled legal principle that where no time-

limit for the exercise of a power is prescribed, it should be exercised within

a reasonable period.

243. What would be a reasonable period would vary from situation to situation,

however, in the present case, taking guidance from the timelines that have

been prescribed by the Sarkaria and the Punchhi Commission, we have

arrived at the view that in the absence of any exceptional circumstances, the

Governor would be able to exercise his powers under the Article within the

maximum period prescribed by us.

244. While the reading in of an absolute time-limit would have left the Governor

with no choice but to comply with it, the prescription of the judicially

evolved time-limits by us leaves it open for the Governor to justify the delay

caused by providing reasonable grounds. Delay caused by the Governor

beyond the prescribed time-limits would be justiciable and the courts, with

deference to applicable judicial principles, would be fully competent to

W.P. (C) No. 1239 of 2023 Page 207 of 414 ascertain whether the delayed exercise of power by the Governor under

Article 200 was based on any reasonable grounds or not.

245. The prescription of a time-limit is with a view to ensure that the Governor

is not conferred with the power of exercising a pocket veto under the scheme

of Article 200, and hinder the law-making process in the State without the

existence of any reasonable grounds. While the decision in Nambudiri

(supra) does not make the prescription of such a time-limit by the Court

impermissible, the decisions, adverted to above, vest this Court with

sufficient power to ensure that the procedure prescribed under Article 200 is

followed by the Governor in a constitutionally permissible manner and in

line with the principles of parliamentary democracy keeping in mind the

nature of the power. Such an approach also ensures that the State

governments are not left remediless in cases of malicious, arbitrary or

capricious exercise of power by the Governor under Article 200.

246. We also deem it necessary to prescribe a timeline for the discharge of

functions by the Governor under Article 200. The Sarkaria and Punchhi

Commissions in their reports adopted this view, keeping in mind the

importance of an expeditious decision under Article 200 for the smooth

functioning of electoral democracy in the States. An elected government

W.P. (C) No. 1239 of 2023 Page 208 of 414 gets the mandate of the people for a limited period of five-years within which

it is expected to legislate on issues pertaining to the electorate. If the

Governor, for whatsoever reasons, exhibits reluctance or lethargy in

decision making, particularly when it is concerned with the assent to bills, it

severely impacts the ability of the government to act upon its mandate and

deliver to the people who brought them into power. Any obstacle created by

the Governor, whether advertently or inadvertently, severely impacts the

perception of the elected government in the subsequent elections and thereby

also negatively affecting their chances of coming back into power. The

problem is further exacerbated when the political party in power in the State

is different from the one at the Centre, and the Governor should be more

cautious and non-partisan in the exercise of his functions in such a scenario.

Any deliberate inaction on part of the Governor in assenting to bills or

reserving them for the consideration of the President, thus, has to be viewed

as a serious threat to the federal polity of the country and the aggrieved

governments cannot be left remediless, desperately waiting for a decision at

the hands of the Governor.

247. This Court in State of Punjab (supra) held that the Constitution terms any

inaction on part of the Governor as deplorable and that he cannot indefinitely

keep the bills passed by the State legislature on a chokehold. The relevant

observations read as under:

W.P. (C) No. 1239 of 2023 Page 209 of 414

“24. [...] The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation which squarely lies in the domain of the State Legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.” (Emphasis supplied)

248. It is not unusual for this Court to prescribe time-limits for the discharge of

certain functions, even in cases where no specific time-limit has been

prescribed. Recently, in Periyammal (Dead) thr. LRs & Ors. v. Rajamani

& Anr. Etc. reported in 2025 INSC 329, a two-Judge Bench of this Court,

of which one of us (J.B. Pardiwala, J.) was a part, directed all the High

Courts to issue directions to all the District Courts to decide pending

execution petitions within a period of six-months without fail. The directions

read as follows:

“75. In view of the aforesaid, we direct all the High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions. Once the data is collected by SLP (C) Nos. 8490, 8491 & 8492 of 2020 Page 77 of 78 each of the High Courts, the High Courts shall thereafter proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the concerned presiding officer would be answerable to the High Court on its administrative side. Once the entire data along with the figures of pendency and disposal thereafter, is collected by all the High Courts, the

W.P. (C) No. 1239 of 2023 Page 210 of 414 same shall be forwarded to the Registry of this Court with individual reports.”

249. We have already discussed that in Keisham (supra), a three-Judge Bench

of this Court fixed an outer time-limit of three-months for the Speaker to

decide disqualification petitions under the Tenth Schedule. The Court

pertinently observed that the said period was fixed “keeping in mind the fact

that ordinarily the life of the Lok Sabha and the Legislative Assembly of the

States is five-years”. This Court has also, in a number of decisions, set down

and reiterated that the High Courts must pronounce judgments on reserved

matters within a period of six-months. Inaction on part of any constitutional

authority being subject to judicial review, it is important that there are

reasonably laid down standards of justiciability of such inaction, and the

timelines prescribed by us serve that purpose. Even the Constituent

Assembly had initially laid down a period of six-weeks for the President to

take action on bills submitted to him under Article 111. However, that was

later changed to account for any exceptional circumstance that may arise in

the discharge of functions by the President or the Governor. However, the

expression “six-months” was replaced with “as soon as possible”, which

though not determinable, envisages an expeditious disposal of bills, unless

in cases where some impossibility exists. The prescription of timelines by

us balances the objective of expediency as well as the desirability of having

some flexibility in cases of existence of an impossibility in discharge of

W.P. (C) No. 1239 of 2023 Page 211 of 414 functions in an expeditious manner. Flexibility in the discharge of a function

cannot be allowed to be stretched to an extent that renders the very object

underlying such function otiose, resulting into the proverbial snapping of the

constitutional machinery.

250. Keeping in mind the constitutional significance of Article 200 and the role

it plays in the federal polity of the country, the following timelines are being

prescribed. Failure to comply with these timelines would make the inaction

of the Governors subject to judicial review by the courts:

(i) In case of either withholding of assent or reservation of the bill for the

consideration of the President upon the aid and advice of the State

Council of Ministers, the Governor is expected to take such an action

forthwith subject to a maximum period of one-month;

(ii) In case of withholding of assent contrary to the advice of the State

Council of Ministers, the Governor must return the bill together with

a message within a maximum period of three-months;

(iii) In case of reservation of bills for the consideration of the President

contrary to the advice of the State Council of Ministers, the Governor

shall make such reservation within a maximum period of three months;

In case of presentation of bill after reconsideration in accordance

with the first proviso, the Governor must grant assent forthwith,

subject to a maximum period of one-month.

W.P. (C) No. 1239 of 2023 Page 212 of 414

251. Failure to comply with the timelines prescribed above would make the

inaction on part of the Governor amenable to judicial review. We shall also

deal with the necessity of expeditiously disposing of the references under

Article 201 by the President in subsequent parts of this judgment.

iv. Whether the Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers?

252. Significant time was spent during the course of the arguments on the key

issue of the scope of discretion enjoyed by the Governor in exercise of his

powers under Article 200, more particularly, as regards the reservation of

bills for the consideration of the President.

253. Mr. Rohatgi, learned Senior Counsel, submitted that the act of the Governor

amounts to a subversion of the Constitution. He further emphatically

submitted that it indeed amounted to a subversion of the Constitution.

254. He also submitted that there was no discretion available to the Governor

under the scheme of Article 200 of the Constitution and the only exception

to the same was provided in the second proviso to Article 200 itself. In other

words, he contended that the Governor could only reserve a bill against the

W.P. (C) No. 1239 of 2023 Page 213 of 414 advice tendered to him by the Council of Ministers, if the bill was of a

description as provided in the second proviso. He submitted that in all other

cases, the reservation of a bill for the consideration of the President had to

take place strictly in accordance with the advice of the Council of Ministers.

255. This argument was also endorsed by Dr. Singhvi, who added that the

observations made in B.K. Pavitra (supra) as regards the discretion of the

Governor under Article 200 of the Constitution have to be understood in the

context of the reservation taking place on the aid and advice of the Council

of Ministers.

256. Mr. Dwivedi, placing reliance on the deletion of the expression “in his

discretion” from both the substantive part of Article 200 as well the first

proviso by the Constituent Assembly, proposed an even stricter

interpretation of Article 200. He argued that the deletion of the expression

“in his discretion” indicated that the intention of the framers of the

Constitution was crystal clear that the Governor should have no semblance

of discretion while exercising his powers under Article 200 and he should

act in accordance with the advice rendered by the Council of Ministers. He

further submitted that it is not just reservation of the bills for the

consideration of the President, but the grant of assent, as well as the decision

to send the bill back to the State legislature together with a message upon

W.P. (C) No. 1239 of 2023 Page 214 of 414 the withholding of assent, which must be taken strictly in accordance with

the advice of the Council of Ministers.

257. The Attorney General, per contra, argued that while exercising his powers

under Article 200, the Governor is discharging an important constitutional

obligation, and even if he does not exercise individual discretion, he may

still act against the aid and advice of the Council of Ministers if he is so

required to, in the discharge of his constitutional duties.

258. An answer to the aforesaid question cannot be arrived at without first

answering the following sub-questions:

a. How has the office of the Governor been envisaged by the

constitutional scheme? In what manner does he play a dual role in

the federal polity of the country?

b. Whether the Governor enjoys a certain degree of discretion in

discharge of his duties under the Constitution? What is the source of

such discretion?

c. Does the deletion of the expression “in his discretion” from Article

175 of the Draft Constitution imply that the Governor has no

discretion available in the exercise of his powers under Article 200?

W.P. (C) No. 1239 of 2023 Page 215 of 414 a. The Office of the Governor

259. With the enactment of the Government of India Act, 1858, the

administration of India transitioned from the East India Company to the

British Crown, bringing about a new administrative framework wherein the

Governor, as an agent of the Crown, operated under the general supervision

of the Governor-General. While this structure prevailed, the Montagu-

Chelmsford Reforms of 1919, which culminated into the GoI Act, 1919,

marked the early stirrings of responsible government, albeit in a nascent

form. Despite this shift, the Governor remained central to the provincial

administration, continuing to wield significant authority.

260. The GoI Act, 1935, ushered in the era of provincial autonomy and formally

required the Governor to act on the advice of the Ministers who were

accountable to the provincial legislature by abolishing the system of dyarchy

at the provincial level, while introducing it at the central level. However, the

Act also conferred upon the Governor certain special responsibilities, such

as maintaining peace and tranquility within the province and safeguarding

minority interests. These responsibilities necessitated the exercise of

discretion by the Governor in specific matters. Further, the autonomy of the

Governor in such cases remained subject to the general superintendence and

W.P. (C) No. 1239 of 2023 Page 216 of 414 control of the Governor-General, ensuring oversight over the exercise of his

individual judgment.

261. The declaration of Independence brought about a fundamental

transformation in the role of the Governor. Until the Constitution came into

effect, the provisions of the GoI Act, 1935, as modified by the India

(Provisional Constitution) Order, 1947 (for short, the “Adaptation Order”),

governed the administration of the country. Significantly, the Adaptation

Order omitted the expressions ‘in his discretion’, ‘acting in his discretion’,

and ‘exercising his individual judgment’ from the Act, signaling a departure

from the colonial framework.

262. One of the key decisions that the framers of the Constitution had to take was

to decide the mode of selection of the Governor - whether he should be

elected by way of a direct election, or selected from a panel of names

suggested by the State legislature, or nominated by the President. While in

the early days, the Constituent Assembly leaned towards having an elected

Governor, as the framing of the Constitution neared its conclusion, there was

increasing support in favour of having a Governor nominated by the

President. Jawaharlal Nehru attributed this shift of opinion to the bitter

experience of partition, which, according to him, opened the eyes of the

Constituent Assembly to the dangers of separatism and the need for having

W.P. (C) No. 1239 of 2023 Page 217 of 414 a political structure which focused more on the character of the nation as a

Union of States rather than a federation.

b. Constituent Assembly Debates on the mode of Selection of the Governor

263. The speeches made by some of the members of the Constituent Assembly

on Article 155 of the Constitution broadly encapsulate the ideas which were

debated and rejected before nomination was selected as the mode of

appointment for the Governor.

264. Speaking in favour of appointment of Governors by Presidential nomination,

Shri. H.V. Kamath was of the opinion that the concept of an elected

Governor would undermine the structure of the country as a Union of States,

since a Governor elected directly by the people on the basis of adult suffrage

would place more emphasis on India being a federation. However, according

to him, “the emphasis today is more upon the Union pattern of our State

than upon its Federal aspect”13. He believed that an elected Governor, being

a partisan figure, would inevitably clash with the Chief Minister, thereby

disrupting the functioning of a cabinet-style government. According to him,

the role of a constitutional head should be impartial and symbolic, and the

nomination system was better suited to uphold these principles. He further

13 8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 428.

W.P. (C) No. 1239 of 2023 Page 218 of 414 elaborated on the potential tussle that would ensue between an elected

Governor and the Chief Minister of the State as follows:

“[...] If the Governor were to be elected by the direct vote of all voters in a province he is very likely to be a party-man with strong views of his own, and considering that he will be elected by the whole province—by the entire adult population of the province— he will think that he is a far superior man and a far more powerful man that the Chief Minister or Premier of the State who will be returned from one constituency only, but because he happens to be the leader of the majority party, he will be nominated Premier by the Governor. There will be two conflicting authorities within the State : one is the Premier, whom, under this Constitution which we are considering today, we have invested with executive authority so far as the State is concerned, and the other is the Governor, who, though the Constitution does not confer on him very substantial powers and functions, will arrogate much to himself, because he will say that “I have been elected by the people of the whole province and as such I am persona gratia with the people and not the Chief Minister”. Therefore, there will be in the administration of the province at every turn—if not at every turn, then very often—points of conflicts or friction between the elected Governor and the elected Chief Minister. Therefore, I think we have done very wisely in deleting or in doing away with the system of election for the Provincial Governor.”14

265. Shri. Hukam Singh, opting for the middle path, acknowledged the

difficulties inherent in both pure election and pure nomination for the

purpose of appointment of Governors. While agreeing with Shri. H.V.

Kamath on the drawbacks of an elected Governor, such as the potential for

14 8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 428-429.

W.P. (C) No. 1239 of 2023 Page 219 of 414 conflict with the Chief Minister and the high costs involved in conducting

elections, he proposed a balanced alternative, suggesting that a panel of

candidates be nominated by the State legislature and a Governor be chosen

from the said panel. This method, while allowing for some discretion would

also ensure public accountability since the merits of those individuals who

had been recommended in the panel would be publicly available and if the

right person was not chosen, then the selection would also be criticized

publicly. In his view, this approach would reduce favoritism, enhance

transparency, and provide a safeguard against the abuse of power, striking a

middle ground between the extremes of election and direct nomination.

266. Shri. Rohini Kumar Chaudhari opposed the nomination of Governors,

cautioning that a Centre-appointed Governor belonging to a different

political party than the provincial government could lead to discord and

undermine provincial autonomy. The friction that would result from

adopting a system wherein Governors are elected would also exist,

according to him, when a Governor is nominated, since the nominee of the

President would not work in harmonious tandem with the Ministry of the

State which belongs to a different political party than the one which enjoys

power at the Centre. He argued that electing Governors would ensure that

they are more attuned to the needs of all communities, including

marginalized groups like tribal populations in States where the Governor

W.P. (C) No. 1239 of 2023 Page 220 of 414 would have an even more important role to play. He criticized the reliance

on British precedents and advocated for a more democratic process, such as

election or selection from a panel, to reflect the will of the people and to also

safeguard provincial interests.

267. Shri. Alladi Krishnaswami Ayyar was of the view that since the Governor is

merely a constitutional head of the province and the real executive power

had been vested in a ministry responsible to the Lower House of the different

States, it seemed rather unnecessary, under such circumstances, to adopt the

method of election based on universal suffrage for the appointment of the

Governors. The nomination of Governors by the President would, in his

opinion, mitigate constitutional conflicts and foster harmonious relations

between the Governor and the provincial Cabinet. He argued that an elected

Governor, deriving authority from universal suffrage, might assert

dominance over the Cabinet, leading to significant constitutional risks. He

specifically remarked that, “In the normal working of the Government also

there is danger of a clash between the Minister and the Governor, whereas the

whole basis of the constitutional structure we are erecting depends upon the

harmony between the legislature and the executive, and between the executive

and the formal head of the Government”.15 Drawing inspiration from the

15 8, CONSTITUENT ASSEMB. DEB, (May 30, 1949) 431.

W.P. (C) No. 1239 of 2023 Page 221 of 414 Canadian model, he suggested that the President’s appointment of

Governors, guided by the advice of the provincial Cabinet, would ensure

stability and sound governance. Furthermore, according to him, “Nowhere

does the system of election of the Governor exist where the Institution of

responsible government is the main feature of the Constitution”.16 He believed

that this system would better serve the interests of the provinces and the

nation as a whole.

268. It was his belief that while the method of nomination was the most

appropriate one, a convention of appointing Governors in consultation with

the State government would grow. This, when read with the other

discussions which took place in the Constituent Assembly, indicate that the

framers of the Constitution reposed trust that the Governor would not be a

cipher of the Central government, would be a person above party politics

and would not attempt to override the State government with his actions. He

also supported the idea of having nominated Governors on the ground that

the intervention of the Governor would be required only in extraordinary

situations, and an elected Governor may come in conflict with the provincial

Cabinet by trying to override their decisions. His words are reproduced

below:

16

8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 431.

W.P. (C) No. 1239 of 2023 Page 222 of 414 “I see no objection to the appointment of the Governor being left to the President of the Union who has necessarily to act on the advice of the Prime Minister and his Cabinet. A convention, of consulting the provincial Cabinet might easily grow up. Such a convention, as the House is aware, has grown up in the appointment of Governors in Canada. In Australia too, though under a different Constitution, a similar convention has grown up and the Governor of a State is appointed on the advice of the provincial Cabinet. […] There is another aspect also which the House might take into consideration. In our Constitution we must try every method by which harmony could be secured between the Centre and the provinces. If you have a person who is not elected by the province or the State but you have a person appointed by the President of the Union with the consent, I take it, of the provincial Cabinet, you will add a close link between the Centre and the provinces and a clash between the provinces and the Centre will be avoided which will otherwise occasionally result. Then there is another point. It is said that the Governor may occasionally have to use his extraordinary powers. This point is more in favour of nomination rather than in favour of election. If the person who is elected on the basis of universal suffrage is to come into clash with the provincial Cabinet and if he is to set himself above the provincial Cabinet, there will be a greater constitutional danger. Even if circumstances arise when intervention by the Governor is necessary it will be only on extraordinary occasions. Even for that intervention a person who is nominated or appointed by the President with the concurrence of the provincial Cabinet is likely to take far greater care than a person who is elected by the people. On the whole, in the interest of harmony, in the interests of good working, in the interests of sounder relations between the provincial Cabinet and the Governor, it will be much better if we adopt the Canadian model and have the Governors appointed by the President with the convention growing up

W.P. (C) No. 1239 of 2023 Page 223 of 414 that the Cabinet at the Centre would also be guided by the advice of the provincial Cabinet.”

(Emphasis supplied)

269. Shri. P.S. Deshmukh was of the opinion that there exist a few fundamental

considerations which have to be kept in mind while discussing the

appointment of the Governor. The first of these fundamental considerations

was that, “if we decide that the Governor should be elected by the province

on the basis of adult franchise, then it follows logically that he should be a

real executive authority. On the other hand, if you want him to be mere

figurehead, if you want him to have exactly the same position as he has today

under the 1935 Act and which is exactly the position which is assigned to

him under the Draft Constitution, you cannot but have him appointed by the

President.”17. In light of this, he buttressed his view that Governors must be

nominated and not elected. Regarding the concern that adopting a system of

nominating the Governor would give undue power to the Prime Minister and

the President, he opined that the Prime Minister would also be a popular

Prime Minister and that he can only be there as long as he has the support of

the Parliament elected by the people at large. Therefore, his view was that

we must not hesitate in giving powers of patronage to the Prime Minister or

the President. He also expressed concerns about the potential discord

17 8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 433.

W.P. (C) No. 1239 of 2023 Page 224 of 414 between an elected Governor and the Chief Minister or Premier, which could

disrupt governance. Apart from the very real possibility of conflicts between

the elected Governor and the Chief Minister which necessitated appointment

via nomination, he argued, on the other hand that, if there was no conflict

and there was perfect agreement or collusion between the Governor and the

Chief Minister, they could agree in defying the Centre altogether and that

would put the Centre in a precarious position where they would be

completely blocked out from the States. Therefore, he remarked that, “But

apart from the conflict, if there is no conflict and there is perfect agreement,

if these two gentlemen set the Centre at naught, what will be the position?”18.

Hence, in his opinion, the appointment of Governors by the President would

maintain a balance of power and ensure some degree of Central influence

over provincial matters. He further suggested that Governors should serve

at the pleasure of the President, thereby eliminating the need for

impeachment provisions and also reinforcing the oversight of the Centre.

270. Shri. Hriday Nath Kunzru highlighted the potential for friction between

Governors and their Cabinets, specifically with reference to Article 175 of

the Draft Constitution, which has now been adopted as Article 200. By

drawing comparisons to the Canadian model, he argued that empowering

18 8, CONSTITUENT ASSEMB. DEB., (May 30, 1949) 434.

W.P. (C) No. 1239 of 2023 Page 225 of 414 the President to disallow provincial bills directly by overriding the assent of

the Governor within a certain prescribed period of time from the date of such

assent, rather than relying on the Governors as intermediaries who refer the

bill for the consideration of the President, would centralize responsibility

with the Central Executive and reduce conflicts at the provincial level. In his

view, this approach would align with the principles of responsible

government and ensure smoother governance.

271. Pandit Jawaharlal Nehru emphasized the need to foster unity and avoid

separatist tendencies within the nation. He believed that an elected Governor

could exacerbate provincial divisions and weaken ties with the Centre. In his

opinion, “Nevertheless a certain convention and practice helps or hinders

the growth of separatist tendencies. I feel that if we have an elected

Governor that would to some extent encourage that separatist provincial

tendency more than otherwise. There will be far fewer common links with

the Centre.”19 He argued that duplicating the electoral process for the office

of Governor would be unnecessary and counterproductive, leading to

conflicts, wastage of resources, and disruptive tendencies. Supporting the

nomination of Governors, he asserted that this approach would align with

19 8, CONSTITUENT ASSEMB. DEB., (May 31, 1949) 455.

W.P. (C) No. 1239 of 2023 Page 226 of 414 the parliamentary system of democracy and strengthen the relationship

between the provinces and the Centre.

c. Constituent Assembly Debates on the Exercise of Discretion by the Governor

272. The other key question which fell for the consideration of the Constituent

Assembly was whether any discretion would be made available to the

Governor as the constitutional head of the State. Article 163(1) of the

Constitution, which describes the nature of such discretionary powers, reads

as follows:

“(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”

273. To understand the true import and the scope of this discretion which exists

with the Governor, it would be apposite for us to look into the Constituent

Assembly debates pertaining to this Article in some detail. Article 163 which

provides for the Council of Ministers to aid and advice the Governor was

earlier numbered as Article 143 under the Draft Constitution. Two

amendments were sought to be moved to draft Article 143 on the 1st of July

1949; however, those did not gain the approval of the Constituent Assembly

W.P. (C) No. 1239 of 2023 Page 227 of 414 and the original version of draft Article 143 came to be later adopted as

Article 163 as we see it today.

274. Of the two amendments, one of which was moved by Shri. H.V. Kamath

sought to delete the expression, “except in so far as he is by or under this

Constitution required to exercise his functions or any of them in his

discretion”. Shri. H.V. Kamath was of the opinion that the draft Article had

been blindly copied from the GoI Act, 1935, without any mature

consideration. He further remarked that, “There is no strong or valid reason

for giving the Governor more authority either in his discretion or otherwise

vis-a-vis his ministers, than has been given to the President in relation to his

ministers”20. Investing such wide discretionary powers on the Governor was

all the more problematic, according to him, since Governors are nominated

to their positions and not elected. No departure from the principles of a

constitutional government must be favored except for reasons of emergency

and therefore, he advocated for these discretionary powers to be done away

with.

275. However, Shri. T. T. Krishnamachari pointed out that there existed specific

provisions under the Draft Constitution wherein the Governor was in fact

empowered to act in his discretion, irrespective of the advice tendered by his

20 8, CONSTITUENT ASSEMB. DEB., (Jun. 1, 1949) 489.

W.P. (C) No. 1239 of 2023 Page 228 of 414 Council of Ministers. Therefore, according to him, there were two ways of

drafting which would capture the aforesaid underlying idea: One, would be

to make a mention of this exception under draft Article 143 itself and

enumerate the specific scenarios where the Governor would be able to

exercise his discretion in the subsequent relevant articles or; Two, would be

to leave out any mention of this discretionary power under draft Article 143

and only state it in the appropriate article that will follow. In the case of draft

Article 143, according to him, it was only that the former method had been

followed. Therefore, the general proposition or the default rule would be that

“the Governor has normally to act on the advice of his Ministers except in

so far as the exercise of his discretions covered by those Articles in the

Constitution in which he is specifically empowered to act in his

discretion.”21

276. As an illustration, Shri. T.T. Krishnamachari referred to draft Article 188

which related to the proclamation of Emergency in States by the Governor

under his discretion. It was his opinion that if such a discretionary power can

be given under draft Article 188, there is no harm in the mention of

discretion under draft Article 143 either. He understood the scheme of the

draft Constitution to mean that unless there is a specific mention of

21 8, CONSTITUENT ASSEMB. DEB, (Jun. 1, 1949) 491.

W.P. (C) No. 1239 of 2023 Page 229 of 414 discretion under any subsequent Article, the discretionary power mentioned

under draft Article 143 cannot at all be exercised.

277. Shri. Brajeshwar Prasad was not in favor of the amendment that was put

forth since he was of the opinion that the Governor should be vested not only

with the power to act in his discretion but also with the power to act in his

individual judgement. He was of the view that there was a dearth of

leadership in the provinces wherein competent men were not available and

unless the Governor is vested with large powers, it would be difficult to

effect any improvement in the provincial administration. He went to the

extent of saying that though such a procedure may be considered as

undemocratic, it would be in the interest of the country. He remarked that,

“I cannot allow democracy to jeopardize the vital interests of the country

[…] The masses who ought to be the rulers of this land are down-trodden

and exploited in all ways. Under these circumstances there is no way left

open but for the Government of India to take the Provincial administrations

in its own hands”22. In his opinion, federalism could not succeed in a country

which was passing through a transitory period and therefore, he subscribed

to the view that power must be vested at the Centre and as a natural corollary,

the Governor must be able to act in his discretion.

22 8, CONSTITUENT ASSEMB. DEB., (Jun. 1, 1949) 492.

W.P. (C) No. 1239 of 2023 Page 230 of 414

278. Shri. Mahavir Tyagi was also in agreement with the view that the Governor

must be granted discretion. In his opinion, the State must be kept linked

together with the Centre and the Governor would be the agent who guards

the Central policy in the provinces/States. There would be certain subject-

matters which affect the whole body politic and the provinces/States cannot

be left free of the policy at the Centre. Since the policy which is evoked in

the Centre must be followed by all the States, and if the Governors were to

be in the hands of the provincial Ministers, then there will be various policies

in various provinces and ministers of various types having different party

labels and programmes would push their own agenda. Therefore, it was his

view that, “The Governor being the agency of the Centre would be the only

guarantee to integrate the various provinces/States”23. According to him,

this is why the Governor’s discretionary powers should not be interfered

with. He went on to remark that democratic trends are like a wild beast and

that it goes by the whims and fancies of the parties and the masses. There

must be some machinery which would keep this wild beast under control. It

is in such a reality that the Governor exercising his discretion acts as a

guardian of the Central policy on one side and the Constitution on the other.

23 8, CONSTITUENT ASSEMB. DEB., (Jun. 1, 1949) 495.

W.P. (C) No. 1239 of 2023 Page 231 of 414

279. Shri. B.M. Gupta was of the view that if certain powers had to be given to

the Governor, our endeavor must be to restrict them as far as possible so that

the Governor’s position as a constitutional head may be maintained.