A restoration of sanity to the constitutional system

‘The judgment of the Supreme Court of India can be called a landmark one’
| Photo Credit: AP

The judgment of the Supreme Court of India, on April 8, 2025, namely, The State Of Tamil Nadu vs The Governor of Tamilnadu and Anr., can be called a landmark one as it has brought greater clarity to the constitutional provision dealing with the giving of assent to a Bill by a Governor. In this case, the background to the case is about the Governor of Tamil Nadu, R.N. Ravi, who had kept with him 10 Bills without taking any decision on them for many years. Finally, when the Assembly passed the Bills again and sent them to him, the Governor, instead of giving his assent, as per the mandate of Article 200 of the Constitution, sent them to the President of India for consideration. He sent the Bills to the President only after the Government of Tamil Nadu approached the top court.

The Bench of the Court (Justice J.B. Pardiwala and Justice R. Mahadevan) has now held that the action of the Governor in sending the Bills to the President at that stage to be unconstitutional and has struck it down. The Court also struck down the action taken by the President on those Bills — she had withheld assent. Invoking its special power under Article 142, the Court declared that all those Bills rejected by the President shall be deemed to have been assented to.

It is perhaps the first time in the history of the Court that Bills passed by the legislature of a state and withheld by the President have been declared as assented to by the Court. It is an extraordinary remedy to an extraordinary situation created by an extraordinary action of a State Governor.

Editorial | Legal milestone: The Supreme Court and the Tamil Nadu Governor

In fact, Tamil Nadu is not the only State where the Governor has sat on Bills passed by the legislature. It has happened in Kerala, Telangana and Punjab. Kerala has now approached the Court on the same issue, which is yet to be heard.

The Bill does not die

Article 200 lays down the course of action to be followed by the Governor when a Bill duly passed by the legislature is presented to him. The logical course the Governor should follow is to give assent to the Bill. But if he does not follow this and decides to withhold assent to the Bill, the said Article says that he may declare that he is withholding assent. It would thus appear that once the Governor withholds assent, the Bill will die a natural death. The wording of this Article would convey such a meaning. But this part of the Article was very cogently explained by the Court in State Of Punjab vs Principal Secretary to The Governor of Punjab and Another (2023). The Court made it unambiguously clear that a declaration by the Governor that he is withholding assent does not bring an end to the Bill. It held that withholding of the Bill should be followed by sending the Bill to the legislature for reconsideration as soon as possible.

When the Bill is thus sent to the legislature, it would reconsider it promptly and send it back to the Governor either in the form in which it was passed originally or with amendments suggested by the Governor. Either way, the Governor will have to give assent to the Bill. He cannot exercise any veto against it. The Court has explained this point in the following words: “if the governor decides to withhold assent under the substantive part of Article 200 the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration … if the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200 the governor as the unelected head of the state would be in a position to virtually veto the functioning of a duly elected legislature by simple declaring that assent is withheld without any further recourse”.

This judicial explanation has been carried forward by the Court in the Tamil Nadu case. The Court has reiterated this position, namely, withholding assent is not the end of the story so far as the Bill is concerned but the Governor is mandated to send the Bill back to the legislature for its reconsideration and the Governor shall give assent to the Bill which is sent to him after reconsideration.

The Court’s ‘time limit’ and legality

Three crucial points have been decided by the Court which make this judgment truly historic. The first relates to the time limit fixed within which the Governor as well as the President of India should decide the issue of assent. The minimum period is one month and the maximum, three months. If the Governor or the President does not adhere to this time limit, the aggrieved State can seek the intervention of the constitutional court. Obviously, the Court went to the extent of fixing a time limit in this case because of the fact that the Governor sat on the Bills for years without taking any decision. The Court has said that the Governor does not have the power to exercise a pocket veto or an absolute veto while exercising his power under Article 200.

Following the judgment, questions have been raised on the legality of a time limit under Article 200. The Court has clarified it in the judgment — it has stated that it is guided by the inherent expedient nature of the procedure prescribed under Article 200 and the well-settled legal principle that where no time limit for the exercise of a power is prescribed, it should be exercised within a reasonable period. The Court has viewed the deliberate inaction on the part of the Governor in assenting to the Bills or reserving them for the consideration of the President as a serious threat to the federal polity.

The second point relates to the question of discretion of the Governor in withholding assent or reserving the Bill for the consideration of the President.

The Court has taken the position that the Governor can take either action only on the advice of the Council of Ministers. The judgment says that when the Governor withholds assent, he has to send the Bill to the legislature for reconsideration and when the Assembly sends the Bill back to the Governor with or without the amendments suggested by him, the Governor has to give assent.

But there is a problem with this proposition. For example, what is the occasion when the government has to advise the Governor to withhold assent and send the Bill to the Assembly for reconsideration? When the legislature can send back the Bill after reconsideration without accepting any of the amendments suggested by the Governor, how can it be then said that the Council of Ministers have advised the Governor to propose amendments to the legislature when the government commands a majority there? In fact, on the question of discretion, the Court has not been consistent as different Benches have given different opinions thereon.

Constitutional heads and judicial review

The third, and most crucial, point is about judicial review of the decision of the Governor and the President. The basic proposition laid down by the Court after reviewing a catena of cases is that “no exercise of power under the constitution is beyond the pale of judicial review”. So, it has held that there is no reason to exclude the discharge of functions by the Governor or the President under Articles 200 and 201, respectively, from judicial review.

The judgment has been assailed by the Kerala Governor who has said that this is a case of judicial overreach and that it is the job of Parliament, and not the Court, to amend the Constitution. While it is true that Parliament alone has the right to amend the Constitution, it is the job of the judiciary to explain and interpret the constitutional provisions. Another issue that has been raised by a section of lawyers is that the issues decided by Justice Pardiwala’s Bench can be decided only by a Constitution Bench under Article 145(3). In fact, the Constitution Bench under Article 145(3) decides substantial questions of law as to the interpretation of the Constitution.

Closer scrutiny would reveal that none of these points comes under the category of substantial question of law within the meaning of that Article. As a matter of fact, the Court has only brought out the inherent meaning and amplified the dimensions of it in Articles 200 and 201 with the objective of preventing the subversion of the constitutional order. By doing so, the Court has restored sanity to the constitutional system which had come under severe strain due to plain arbitrariness and deliberate inaction on the part of constitutional authorities.

Decades ago, India had seen the unedifying spectacle of a President sitting on the postal Bill for years, with a helpless Union government unable to do anything. This underscores the need to make suitable changes in the relevant provisions of the Constitution relating to the issue of assent to Bills, whether they are passed by Parliament or a State legislature. The cue must be from this judgment. Therein lies the importance of this judgment.

P.D.T. Achary is former Secretary General, Lok Sabha