Can Governors Indefinitely Refuse Assent To Bills Passed By The Legislature?

On the face of it, the recent Supreme Court judgement in the Presidential Reference on Governors’ discretion regarding Bills (“Presidential Reference”) seems to say that Governors do not have the power to exercise such a “pocket veto” indefinitely. But read the judgement closer. Amid the poor reasoning and obfuscation, one finds that the court actually holds the opposite - that Governors are free to decide whether they want to assent to a Bill passed by the legislature in any manner whatsoever. In this article, I’ll try to explain why this is what the court intends in its judgement.

First, it is necessary to understand the context in which this Presidential reference was made. Back in May this year, a two judge bench of Justice Pardiwala and Mahadevan delivered a much needed if somewhat controversial judgement that curbed the powers of Governors when it came to the question of assent. Coming in the context of Tamil Nadu Governor RN Ravi’s refusal to take any action on Bills passed by the Tamil Nadu State Legislative Assembly, it seemed like a necessary remedy to unconstitutional behaviour by an unelected, unaccountable official. While granting “deemed assent” to Bills which had been withheld by Governor Ravi, the Supreme Court also laid down detailed timelines for the Governor to act under Article 200 when a Bill was awaiting their assent. Failure to act within these timelines would mean that the Bill was deemed to have been assented to by the Governor.

The SC did not stop there though. They also laid down detailed guidelines on what happens if the Governor were to refer the Bill to President for their approval in accordance with Article 201. Holding that like the Governor, the President could not exercise a pocket veto, a time limit of three months is fixed for the President to take a call on Bills referred by the Governor. Further, elaborate guidelines were laid down for how the President should act in case of such Bills and how State Governments could challenge the President’s actions in court.

Why did the Supreme Court even have to go this far in the Tamil Nadu case?

The reasons are not too hard to find. Governor Ravi may have been the most egregious offender, but other State Governments such as Punjab and Kerala ruled by non-NDA alliance parties were suffering the same problems. In effect the SC was tired of playing referee in pointless political melees and wanted to create a structural remedy.

Nonetheless, did the two judge bench go too far though with its directions to the President?

In my view, it did. The office of President is different from the Governor. Whereas the Governor has limited discretionary powers in certain areas, Presidents have none. They have to act on the aid and advice of the Union Council of Ministers. If they are advised to reject a State’s Bill or return it, they have to. Until the Union Council of Ministers decides for them, the President cannot do anything. The court however, in creating these guidelines, unsettled the constitutional position on the position of the President.

It is no surprise then that the Union Government, in the guise of a Presidential Reference under Article 143, sought to review this verdict. What was going to be re-examined in the Presidential Reference was whether the 2 judge bench could have imposed timelines on the Governor and the President in a bid to address the problem of gubernatorial misbehaviour.

The real source of the problem with Governors is a controversial decision made at the framing of the Constitution. The colonial office of the Governor, designed to limit and interfere in the functioning of provincial legislatures composed largely of Indians, was retained in the Constitution of India. While the initial proposal of an elected Governor was abandoned, by ensuring that the Governor could only be removed by the President, the Constituent Assembly essentially retained the office as an agent of the Union Government. Several members expressed disappointments and frustration, worrying that the Governor would become a parallel authority in State Governments.

That the worries of members in the Constituent Assembly have come true is obvious from the way the office of the governor has been used to settle political scores and defeat democratic mandates over the last seventy years. The Supreme Court has been forced to step in, on more than one occasion, to demand Governors act within the scope of their powers under the Constitution.

So when the Supreme Court heard the Presidential Reference regarding Governors’ discretion, it was reasonable to expect that while the two judge bench’s solution to the problem might not be accepted, the problem of Governors abusing their powers would still be addressed by the court.

Instead, the SC takes the bizarre approach of acknowledging the problem of Governors’ discretion but refuses to offer any solution to it. The court holds that no timeline can be fixed for Governors to take a decision on whether or not assent should be granted to a Bill. The court replaces a clearly defined time limit and mandate with a vague and generalised remedy for the state government in case the Governor unreasonably delays assent. Even in such cases of extraordinary delay, the court says it will do nothing more than try to urge the government to take a decision. Beyond this, all actions of the Governor whether or not they are constitutionally justified are deemed beyond judicial review. 

The court gives short shrift to the ideas of democracy and federalism. Democracy and federalism the court says are very important principles in the Constitution. But god forbid they mean something. If a Governor simply ignores the mandate of a popularly elected legislature, well that’s what the Constitution intended the court seems to be saying. If a State Government has to kowtow to the whims of the Union Government to get even basic bills passed, well that’s what the Constitution envisages anyway. The court is fine with principles in theory. It just doesn’t want any of them in practice.

At some point the court realizes the implications of its judgement. However, this does not prompt a rethink but a pathetic plea to the Governor to try and uphold the Constitution sometimes. This plea is laughable. When the Court has itself held that the Constitution itself allows the Governor to ignore the principles of federalism and democracy, this vain pleading seems more designed to convince the uninformed public that this is a decision that actually cares about the Constitution.

The Supreme Court’s judgement in the Presidential Reference is unlikely to remain law for long. It creates an unsatisfactory status quo that future benches of the Supreme Court may be less willing to tolerate. For better or worse, the three month limit rejected by the judgment in the Presidential Reference case is likely to become a benchmark which states consider the outer limit for Governors to act on pending Bills. When faced with a flood of petitions from state governments fighting recalcitrant governors, will future benches of the Supreme Court adopt the same hands off approach to this matter? Will future courts wilfully undermine their own authority and the authority of the Constitution to let Governors get away with everything?

History suggests otherwise and I foresee the judgement in the Presidential Reference being revisited in the not-too-distant future. Unlike the Supreme Court, I am wiling to commit to a timeline and say, within the next decade.