Governor's discretion on State Legislature

Constitutional Provisions:

Articles 200 and 201:

The power to grant assent or to withhold assent or to reserve a Bill for the consideration of the President is not dealt with under the heading “The Governor” in Chapter II of Part VI (i.e. as a power or as a function of the Governor) but in Chapter III dealing with State Legislature and under the sub-heading “Legislative Procedure”. 

Article 200: 

According to Article 200, when a Bill passed by the Legislature of a State is presented to the Governor, he has four options, namely, (a) he assents to the Bill; (b) he withholds assent; (c) he reserves the Bill for the consideration of the President; or (d) he returns the Bill to the Legislature for reconsideration. The first proviso says that as soon as the Bill is presented to him, he may return the Bill to the Legislature (if it is not a Money Bill) together with a message requesting the Legislature to reconsider the Bill. He can also suggest the desirability of introducing such amendments or changes as he thinks appropriate. If, on such reconsideration, the Bill is passed again, with or without amendments, and is presented to the Governor for assent, he has to accord his assent. The second proviso says that if the Bill presented to him derogates, in the opinion of Governor, from the powers of the High Court so as to endanger the position which the High court is designed to fill by the Constitution, he is bound to reserve the Bill for the consideration of the President (also see para 88 in AIR 1983 SC 1019 at 1048, Hoechst Pharmaceuticals v. State of Bihar)

The following aspects of the Article need attention: 

1) Article 200 (which is a reproduction of section 75 of the Government of India Act, 1935 with two small modifications) does not fix any time limit for granting the assent or for declaring that he is withholding his assent or for declaring that he is reserving it for the assent of the President. It has been held in Purshothaman v. State of Kerala (AIR 1962 SC 694) that there is no time limit for granting the assent. This decision lays down the following further propositions: (a) A Bill pending in the Legislature (either House) does not lapse on proroguing of Assembly, (b) A Bill pending before the Governor or the President for his assent does not lapse on dissolution of the Assembly and (c) Only the Legislative Assembly can be dissolved but not the Legislative Council. 

2) The Constitution does not furnish any guidance to the Governor - in which matters he should accord his assent and in which matters he should withhold assent. 

3) Except in matters governed by the second proviso to Article 200, that Article does not also lay down any guidelines in which matters should the Governor reserve the Bill for the consideration of the President. It has been held by the Supreme Court in Hoechst Pharmaceuticals v. State of Bihar (1983 SC 1019) that the Governor‟s power to reserve for the consideration of the President cannot be questioned in court. The following observations in the judgment, though made while dealing with a question posed from a different angle, are relevant: 

“A Bill which attracts Art.254(2) or Art.304(b) where it is introduced or moved in the Legislative Assembly of a State without the previous sanction of the President or which attracted Art.31(3) as it was then in force, or falling under the second proviso to Art.200 has necessarily to be reserved for the consideration of the President. There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny by the courts.”

May be, this matter can also be deemed to be one covered by the prohibition contained in Article 212. (Article 212 declares that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of irregularity of procedure. It is significant that the question of assent is not dealt with as a power or function of the Governor in Chapter II dealing with “The Executive – The Governor” but in Chapter III which deals with “The State Legislature”, under the sub-heading “Legislative Procedure”. It should also be remembered that according to Article 168, Governor is a part of the State Legislature.)

The power to withhold assent appears to be wide and unguided power. The Governor is an appointee of the President (Central Government). He is not elected by the people of the State or by their representatives. In such a situation, the legitimacy of this power, which empowers him to undo the will of the Legislature by just declaring that he is withholding his assent, is open to question. Even if we proceed on the basis that this power has to be exercised by the Governor on the advice of his Council of Ministers - as it ought to be - no Council of Ministers, ordinarily speaking, would tender such an advice except where it is a successor government formed by a party which was in opposition when the Bill was passed and which has since come to power (of course, one cannot envisage all the situations wherein such an advice may be tendered by the Council of Ministers). Be that as it may, wherever such advice is tendered, it would be a suspect one; the Council of Ministers cannot overturn the will of the Legislature. What can happen in such a situation is that the Governor may simply sit over the Bill and if he finds that a different party has come to power meanwhile, he may seek their advice. Such a course will not be conducive with the decorous regard a Governor is expected to the rules of the Constitutional game. Indeed, any such advice to withhold assent by the Council of Ministers to a Bill passed by the Legislature might amount to an act of impropriety. If, on the other hand, for any reason, the power to withhold assent is treated as a matter within the discretion of the Governor, the position would be a totally unedifying one. In the absence of any guidance provided by the Constitution in which cases this power can be exercised and in view of the further fact that no court is entitled to go into the justification of such withholding, conferment of such power is bound to be inherently arbitrary and discriminatory.

A reading of Article 201 shows that even a Money Bill can be reserved for the assent of the President. This would be evident from the following words in the proviso to Article 201: “Provided that where the Bill is not a Money Bill, the President may direct the Governor to return the Bill….” From the language employed in Articles 200 and 201, it cannot be said that a Money Bill cannot be reserved for the assent of the President. Such a course, if adopted by a Governor, can lead to serious dislocation of administrative business.

A Consultation Paper on THE INSTITUTION OF GOVERNOR UNDER THE CONSTITUTION - NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION