Governors case verdict: Supreme Court limits President's powers on withholding bills passed by State

The Supreme Court of India on April 8 delivered a landmark decision outlining the powers and responsibilities of the Governors regarding the bills presented to them by a State legislature for a decision under Article 200 of the Constitution of India [The State of Tamil Nadu v The Governor of Tamil Nadu and Anr]. .In the detailed judgement uploaded on the Court’s website on the night of April 11, a bench of Justices JB Pardiwala and R Mahadevan also defined the contours of the powers of the President of India under Article 201 of the Constitution. Article 201 lays down the procedure when a bill passed by State legislature is reserved by the Governor for the consideration of the President of India.As per the said Article, when a bill is reserved by a Governor for the consideration of the President, the President shall declare that he either assents to the Bill or that he withholds assent..Below are the key findings of the apex court on the same..President’s decisions are subject to judicial review.The Court observed that the discharge of functions by the President under Article 201 are amenable to judicial review. It reasoned that while there is no political hue to the limited discretion conferred upon the Governor, “the grant of assent under Article 201 has an element of political hue by virtue of the fact that the President under Article 201 has been given the prerogative to decide whether the grant of assent in certain cases would be desirable or not”. The Court summarised its findings as follows: Where the bill which is under consideration is pertaining to a subject matter with respect to which primacy has been given to the Union government in taking a decision keeping in consideration the desirability of having certain uniform standards of national policy, then the limited grounds of judicial review would be based on arbitrariness, malafides, etc. Where the bill which is under consideration pertains to a subject matter or domain within which State legislature has been accorded primacy, and the reservation of the bill is by the Governor contrary to the aid and advice of the State Council of Ministers, then in exercise of judicial review the courts would be competent to look into the reasons for withholding of assent and whether they are legally tenable or not, besides the grounds of malafides and arbitrariness, etc. .President has no absolute or pocket veto, should take decision in 3 months.The Bench underlined that there is no absolute or pocket veto with the President when it comes to his function under Article 201 and he has to choose between the two options available - either grant assent or withhold it. The Court said that the President is required to take a decision on the bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State. Further, when he is exercising powers under the proviso to Article 201, the same should not be exercised in a piecemeal manner, the Court ordered.Proviso to Article 201 says that where the bill is not a money bill the President may direct the Governor to return the bill to the State legislature to reconsider the bill or consider amendments to it and the legislature shall then reconsider it accordingly within a period of six months and it shall be presented again to the President for his consideration.The Court stated the following as regards the exercise of the said power by the President:“Piecemeal exercise of the proviso to Article 201 must be dissuaded. This is to prevent the endless loop of sending and re-sending of the bill that may ensue between the President acting under the proviso to Article 201 and the House or Houses of the State Legislature,” the Court stressed. It added that after the bill is sent with a message to the State legislature by the President and they repass it, with or without amendments, the President would be empowered to take a final call on the giving or withholding of assent on the bill concerned. However, even in the second round, the President has no absolute veto, the Court underlined. “…if he [President] chooses to withhold his assent, the bill will not take birth as law. It must, however, be noted that even during the withholding of assent of a bill received on the second round, the President would be required to assign clear and sufficiently detailed reasons for arriving at such a decision.” It added, “In cases where the reservation is on the ground of repugnancy of the State legislation with a Central legislation, or under one of the provisions where the assent of President has been envisaged for the purpose of enforceability or imparting immunity to the legislation, it would be a matter where the President would decide the question of grant of assent keeping in mind the desirability of having a uniformity in the policy across the country on the subject matter involved.”.Constitutionality of the bill is to be tested by the judiciary, not the executive or the President.The Supreme Court made it clear that in cases where a bill has been reserved because it involves questions of Constitutional validity, the executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143.“We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill.”The Bench said that the opinion rendered by the Supreme Court under Article 143 holds high persuasive value and should ordinarily be accepted by the legislature and the executive. “In our considered view, the only reason for which the legislative or the executive wing may not take note of the opinion delivered by the Supreme Court under Article 143 is when the grounds on which a State bill was reserved for the consideration of the President, are not purely legal but also involve certain policy considerations, which may outweigh the issue of constitutionality. In such cases, if the President acts contrary to the advice of this Court and withholds assent to a bill, he must record cogent reasons and materials that justify not granting assent.” .[Read Judgment]