Strict timelines for Governor to act; BK Pavitra bad law: Key takeaways from Supreme Court ruling on Governor's powers

The Supreme Court Tuesday delivered a landmark ruling on Governor's powers and responsibilities regarding the bills presented to him by a State legislature for decision under Article 200 of the Constitution of India..The Bench of Justices JB Pardiwala and R Mahadevan cautioned Governors against breaking the democratic will of people and went on to set a timeline for granting assent to such bills in order to curb the growing tendency of motivated inaction of the Governors..Below are seven important takeaways from the top court's judgment today..Governor's options.In discharge of his functions under Article 200, the Governor has three options to choose from when a bill passed by the State legislature is presented to him:a. to assent.b. to withhold assent,c. to reserve the bill for the consideration of the President.Once the Governor declares withholding of assent and returns the bill to the House, the bill would lapse, unless the house reconsiders the bill in accordance with the suggestions made by the Governor in his message and presents to him after re-passing, the Court said.It added that once the Governor exercises the option of withholding assent, he is under an obligation to follow the procedure prescribed as soon as possible..Governor has no veto.Articles 200 makes it clear that there is no scope of inaction, the Court ruled. It stressed on quick decision making when it comes to passing and clearance of the laws and Governor has to adopt one of the three courses of action he is entitled to. "Whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein. Further, the expression “as soon as possible” in the first proviso permeates Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them. Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simpliciter withholding of assent, meaning thereby that ‘absolute veto’ is also impermissible under Article 200," the Court said..Governor cannot send bill to President once re-presented to him.The Court held that it is not open for the Governor to reserve a bill for the consideration of the President once it is presented before him in the second round after having been returned to the house previously, as per the first proposal."The use of the expression 'shall not withhold assent therefrom' appearing in the first proviso places a clear embargo on the Governor, and are a clear enunciation of the requirement that the Governor must assent to a bill presented to him after complying with the procedure laid down in the first proviso. The only exception to this general rule is when the bill presented in the second round is different from the one presented to the Governor in the first instance," the Court said.It added that Governor can then choose from the three options provided under Article 200..TN Governor's actions illegal; bills deemed to be assented to.The Court thus held that reservation of the 10 bills by the Governor for the consideration of the President in the second round was illegal, erroneous in law, and liable to be set aside."As a result, any subsequent action taken upon the said bills by the President also does not survive and is thus set aside," the Court ruled.Importantly, the Court further ordered that since the bills remain pending with the Governor for an unduly long period of time and he did not act in a bona fide manner by reserving the bill for the consideration of the President, the bills are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered by the Legislature.This extraordinary direction was passed by the Court taking recourse to its inherent powers under Article 142 of the Constitution which empowers it to pass directions to do complete justice in cases before it..Top court fixes timelines for Governor.The Court noted that there is no expressly specified time limit for the discharge of the functions by the Governor under Article 200 of the Constitution.However, it added that Article 200 cannot be read in a manner which allows the Governor not to take action upon bills which are presented to him for assent, and thereby delay and essentially roadblock the law making machinery in the state."The use of the expression 'as soon as possible' in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent," it clarified.The settled law is that when no time limit for exercise of power is prescribed, the same must be exercised in a reasonable time, the Court said.Therefore, it went on to prescribe timeline for Governor's actions.Prescription of such time limits within the scheme of Article 200 is with a view to lay down a determinable judicial standard for ascertaining the reasonable exercise of such power and to curtail any arbitrary inaction, it clarified.The timeline is as under,1. 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 action forthwith, subject to a maximum period of one month 2. In case of withholding of ascent, 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.3. 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.4. 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. Failure to comply with this timelines would make the inaction of the governor subject to judicial review by the courts, the top court said..BK Pavitra is per incuriam.The Court said that Governor, in exercise of this functions under Article 200, as a general rule is required to abide by the aid and advice tendered by the Council of Ministers. The only exceptions are in second proviso to Article 200 and Article 163 (1), it added."Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers," the Court observed.Having concluded that any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review, the Bench found itself in in disagreement with the view taken by the top court in an earlier judgment in BK Pavitra that the Constitution confers a discretion upon the Governor in so far as the reservation of bills for the consideration of the President is concerned."We say so because the removal of the expression 'in his discretion' from Section 75 of the Government of India, when it was being adopted as Article 200 of the Constitution, clearly indicates that any discretion which was available to the Governor under the Act in respect of reservation of bills became unavailable with the commencement of the Constitution....It is also manifest that the decision in BK Pavitra is not in consonance with the observations made by the larger bench decision of this court in Shamsher Singh. The majority opinion in Shamsher Singh, more particularly in para 28 observed that '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 this discretion'."Thus, the Court held that BK Pavitra judgment is per incuriam..Judicial review allowed.The top court today further said that that power of judicial review in a written constitution is implicit, unless expressly excluded by a provision of the Constitution. Article 200 is no exception to this general rule, the Court clarified."So withholding of assent or reservation of bills for the consideration of the President in exercise of his discretion, being subject to the limits defined by the Constitution, would be justiciable on judicially determinable grounds," the Court added..[Read Judgment]