SC Questions Governor’s Power To Indefinitely Withhold Bills, Stresses On Balance In Democracy

The Supreme Court Constitution Bench on Wednesday posed questions to the Centre over whether an elected government can be left at “the whims and fancies of the Governor” by allowing them to indefinitely withhold assent to Bills passed by state legislatures.

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

The bench — also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar — is hearing President Droupadi Murmu’s reference on timelines fixed by a two-judge bench for the President and Governors to act on Bills.

The court was deliberating the scope of the Governor’s discretionary powers under Article 200 of the Constitution, which gives Governors the option to grant assent to a Bill, withhold it, refer it to the President in case of repugnancy with a Central law, or return it to the legislature for reconsideration.

Mehta argued that the Governor, though unelected, represents the President and is not merely a “postman” to mechanically approve Bills. “A person who is not directly elected is not a lesser person,” he said, adding that the office “is not an asylum for retired politicians but has its own sanctity which was debated in the Constituent Assembly.”

On the meaning of “withholding assent,” Mehta said: “It dies,” stressing that the power is to be used rarely but is nevertheless conferred. Illustrating with an example, he said, “Suppose a border state passes a Bill dealing with our external affairs, that we will permit a particular country’s people to enter or not, then he cannot assent, he cannot refer it to President because it’s not a repugnancy issue, and he cannot resend it to the House because if it is again passed, he cannot say no to it. So he will have to withhold.”

The CJI then asked, “If he doesn’t exercise the option of resending the Bill for reconsideration, he can withhold it for time immemorial?” to which Mehta responded: “It dies.”

Justice Narasimha, however, observed that the options must remain open-ended so that the political process has the chance to resolve such deadlocks. “The way the political process occurs is not adjudicatory. Even assuming the Governor says I withhold, the political process can knock his doors and he can still open it and say, I will send it back to you, you consider and send it back. But to say… the first time he says, I withhold, the matter comes to an end… It can’t be like that. It is counterproductive to the power of the Governor and counterproductive to the legislative process also. It has to be in a situation where it is open-ended,” he said, clarifying that the Solicitor General’s contention applied to Bills on Union List subjects.

On the wider debate about discretion, Justice Narasimha noted: “At that time we did not have impact assessment of a statute … Now, you see the amount of litigation it has thrown up by having provisions of this nature. Perhaps that could tell us whether the vision was right or not. Because the validity or correctness of a thought will come from its performance.”

Responding, Mehta said he was “not arguing that the Governor has unlimited discretion.” CJI Gavai remarked, “We have some experience as to how some honourable Governors have exercised their discretion leading to so many litigations, but we are not going by that.”

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