Constitutional Limits On Governor’s Power To Withhold Bills

Abstract

The Indian Constitution establishes a federal parliamentary system with a clear division of powers between the Union and the States. A critical feature of this structure is the office of the Governor, envisioned as a constitutional head of the state, functioning on the aid and advice of the Council of Ministers. However, a persistent area of constitutional friction and political controversy revolves around the Governor's power, under Article 200, to grant assent to Bills passed by the State Legislature. This provision grants the Governor multiple options: to assent, to withhold assent, to reserve the Bill for the President's consideration, or to return the Bill (if it is not a Money Bill) for the legislature's reconsideration. This article provides a meticulous analysis of the constitutional limits on the Governor's power to withhold assent to a Bill. It begins by examining the textual interpretation of Article 200, juxtaposing it with the analogous power of the President under Article 111. The core of the argument establishes that, following the landmark judgment in the Nabam Rebia case and the foundational principles of cabinet responsibility, the Governor's power to withhold assent is not a discretionary power but must be exercised only on the aid and advice of the Council of Ministers. The article delves into the historical context, the intent of the Constituent Assembly, and the evolution of judicial precedents to substantiate this position. It further explores the specific scenarios where a Governor's role becomes pivotal: the act of reserving a Bill for the President, the power to return a Bill for reconsideration, and the contentious practice of indefinitely sitting on Bills without any action, often termed as "pocket veto." The analysis concludes that while the Governor possesses certain situational discretion, the power to outrightly veto a Bill passed by a democratically elected legislature is constitutionally impermissible. The article underscores that the Governor's role is that of a sagacious counsellor and a constitutional bridge, not an adversarial authority, and any deviation from this principle undermines the federal structure and the democratic ethos of the Constitution.

Introduction

The office of the Governor in the Indian constitutional scheme is a unique institution, embodying the dual role of being the constitutional head of a state and a representative of the Union in the state. This dual capacity often places the Governor at the crossroads of federal dynamics and party politics. Among the various functions assigned to the Governor, the power to deal with Bills passed by the State Legislature, as enumerated in Article 200 of the Constitution, has been a subject of intense legal and political debate. The text of Article 200 provides the Governor with a set of alternatives when a Bill is presented for assent: "shall declare that he assents to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the President." Additionally, the proviso grants the Governor the power to return a Bill, if it is not a Money Bill, with a message requesting the House (or Houses) to reconsider the Bill or any specified provisions thereof.

» The central constitutional question that arises is: Does the Governor possess an independent, discretionary power to withhold assent to a Bill, acting as a virtual veto-wielding authority over the will of the elected legislature? Or is this power, like other executive functions, to be exercised strictly on the aid and advice of the Council of Ministers headed by the Chief Minister? The answer to this question strikes at the very heart of India's democratic and federal principles.

The practice of Governors withholding assent or indefinitely delaying decisions on Bills has become increasingly common, especially in states governed by political parties opposed to the party in power at the Centre. This has led to accusations of the office being politicized and used to obstruct the legislative agenda of elected state governments. Such actions raise profound questions about the autonomy of states and the principle of responsible government.

This article seeks to provide a comprehensive and authoritative examination of the constitutional limits on the Governor's power to withhold assent to Bills. It will trace the historical origins of the provision, analyze the intent of the framers of the Constitution, and perform a detailed exegesis of the relevant constitutional articles. The core of the discussion will be a thorough review of the jurisprudence developed by the Supreme Court of India, which has progressively clarified and circumscribed the Governor's discretionary powers. The article will also dissect the different courses of action available to the Governor under Article 200—assenting, withholding assent, reserving for the President, and returning for reconsideration—to delineate the precise boundaries of permissible action. The ultimate objective is to demonstrate that the Constitution, interpreted in its true spirit and through established precedents, does not grant the Governor an untrammelled veto power but subjects it to the overarching doctrine of cabinet responsibility and the federal balance.

I. Historical Context and the Intent of the Framers

To understand the limits on the Governor's power, it is essential to appreciate the historical context and the deliberate choices made by the Constituent Assembly. The Government of India Act, 1935, which served as a foundational document for the Indian Constitution, granted the Governor significant discretionary powers. The framers of the Indian Constitution were deeply conscious of the potential misuse of such powers and were determined to establish a truly responsible government in the provinces (now states).

During the debates in the Constituent Assembly, there was a conscious effort to reduce the discretionary powers of the Governor. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, explicitly stated that the Governor under the new Constitution would be a "constitutional head" who must act on the advice of his ministers. He distinguished the new office from the Governor under the 1935 Act, who was often "an agent of the President." The intent was clear: to prevent the Governor from becoming a parallel centre of power or an instrument of the Central Government to interfere in state affairs.

The draft article corresponding to the present Article 200 was debated extensively. Some members proposed that the Governor should have absolute veto power. However, this view was rejected. The Assembly ultimately adopted a formulation that gave the Governor specific, limited options, with the understanding that these would be exercised in a manner consistent with the principles of cabinet government. The power to "withhold assent" was retained, but not as a general discretionary power. It was envisaged as a tool to be used in exceptional circumstances, primarily leading to the next available option—reserving the Bill for the President's consideration on specific grounds mentioned in the Constitution.

The framers did not intend for the Governor to sit in judgment over the policy wisdom of a Bill passed by a democratically elected legislature. Their primary concern was to create safeguards for situations where a state law might encroach upon the powers of the Union or contravene a central law or a constitutional provision. This historical backdrop is crucial for interpreting the scope of Article 200 and confirms that the Governor's power to withhold assent was never meant to be a personal or political veto.

II. Textual Analysis of Article 200 and its Constitutional Scheme

Article 200 of the Constitution of India reads:

"When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the President: Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom."

A plain reading of this article reveals several key points that impose inherent limits on the Governor's power:

» The Use of "Shall": The article states that the Governor "shall declare" one of the three options. This implies a constitutional duty to act. The Governor cannot simply refrain from making a declaration. Inaction or indefinite sitting on a Bill is, therefore, a violation of this constitutional mandate.

» The Limited Options: The Governor is given only three primary courses of action: assent, withhold assent, or reserve for the President. There is no fourth option of "pocket veto" (i.e., neither assenting nor refusing assent).

» The Mandatory Nature of Assent upon Reconsideration: The proviso is particularly significant. It allows the Governor to return a Bill (except a Money Bill) for reconsideration. However, it explicitly mandates that "the Governor shall not withhold assent therefrom" if the Bill is passed again by the legislature, with or without incorporating the Governor's recommendations. This is a powerful limitation. It indicates that the legislature has the final say on the substance of the Bill. The Governor's power to recommend reconsideration is a deliberative tool, not a veto power.

» Comparison with Article 111 (President's Power): Article 111, which deals with the President's assent to Bills, contains a similar proviso for returning a Bill for reconsideration. However, it does not have the mandatory "shall not withhold assent" clause that is present in Article 200. This deliberate difference in drafting underscores the Constituent Assembly's intent to provide greater finality to the state legislature's decisions once it has reconsidered a Bill, thereby placing a stricter limit on the Governor's power compared to the President's.

III. The Doctrinal Foundation: Aid and Advice vs. Discretion

The most critical limit on the Governor's power to withhold assent flows from the foundational principle of the Indian constitutional system: the doctrine of aid and advice. Article 163(1) of the Constitution states:

• "There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion."

• This article establishes a crucial rule: the Governor must act on the aid and advice of the Council of Ministers in all matters, unless the Constitution expressly grants him discretion. The onus is on identifying those specific functions where discretion is conferred.

The Supreme Court has consistently and unequivocally interpreted this provision. In a series of landmark judgments, including Shamsher Singh & Anr. vs. State of Punjab (1974), the Court held that the Governor is a formal or constitutional head of the state and the real executive powers are vested in the Council of Ministers. The Court ruled that the Governor's power to appoint or dismiss a Chief Minister are among the very few situations where discretion is exercised. For all other functions, including the assent to Bills under Article 200, the Governor must act as per the advice of the ministers.

Therefore, the power to "withhold assent" under Article 200 is not a discretionary power. If the Council of Ministers, representing the majority in the legislature, decides to pass a Bill and present it for assent, the constitutional convention demands that the Governor give assent. To withhold assent would be to override the will of the elected government, a power not granted by the Constitution. The Governor cannot withhold assent based on personal or political disagreement with the content of the Bill.

IV. The Nabam Rebia Judgment and its Profound Impact

The most authoritative and recent pronouncement on this issue came from a Constitution Bench of the Supreme Court in the case of Nabam Rebia and Etc. vs. Deputy Speaker and Ors. (2016). While the primary context of this case was the Governor's power in relation to the assembly speaker, the Court made sweeping observations about the Governor's role in general, and specifically regarding assent to Bills.

The Court categorically stated:

"The Governor has no discretion to withhold assent to a Bill passed by the State Legislature, except in the circumstances as provided in the Constitution."

• The Court elaborated that the only real discretion available to the Governor under Article 200 is the choice to reserve a Bill for the consideration of the President. This discretion is not unfettered but is limited to the specific grounds mentioned in the Constitution, such as:

• If the Bill would derogate from the powers of the High Court (Article 200).

• If the Bill is of the nature described in Article 31A (which requires the President's assent for laws related to acquisition of estates, etc.).

• If the Bill is contrary to the provisions of the Constitution or a Central law on the Concurrent List, or if it affects the larger interest of the country.

The Nabam Rebia judgment effectively closed the door on any argument that the Governor can independently withhold assent. It reinforced that the phrase "withholds assent" in Article 200 is not a standalone discretionary power but is intrinsically linked to the subsequent act of reserving the Bill for the President's consideration. The Governor cannot simply say "no"; if the Governor has objections, the constitutional path is to reserve the Bill, thereby passing the responsibility to the President, who acts on the advice of the Union Council of Ministers.

V. Scrutinizing the Specific Courses of Action under Article 200

Having established the overarching principle, it is necessary to examine the precise constitutional limits governing each option available to the Governor.

A. Granting Assent

This is the normal and expected course of action. Once a Bill is passed by the legislature and the Council of Ministers advises assent, the Governor is constitutionally bound to grant it. There is no discretion here.

B. Withholding Assent and Reserving for the President

As established by Nabam Rebia, these two actions are constitutionally intertwined. The power to withhold assent is not an end in itself; it is a step preceding the reservation of the Bill. The discretion lies not in saying "no" to the state government, but in saying "let the President decide" on the specific, constitutionally mandated grounds.

The grounds for reservation are not based on the Governor's personal view of the Bill's policy merits. For instance, a Governor cannot reserve a Bill simply because he or the Central Government believes it is "populist," "fiscally irresponsible," or against a particular ideology. The grounds must be juridical and constitutional, such as a clear encroachment on the Union List, a violation of Fundamental Rights, or incompatibility with a Central law.

C. Returning the Bill for Reconsideration

This power, under the proviso to Article 200, is a significant tool. The Governor can send the Bill back to the legislature, recommending amendments. However, the limits are strict:

It cannot be used for Money Bills.

It must be done "as soon as possible," preventing deliberate delays.

Most importantly, if the legislature reiterates its decision by passing the Bill again, the Governor shall not withhold assent. This is a non-negotiable constitutional command. The Governor's role is reduced to a mandatory, formal assent. This provision is a clear testament to the supremacy of the elected legislature in matters of legislation.

D. The Illegitimacy of the "Pocket Veto"

A common, yet unconstitutional, practice is for Governors to neither grant assent, nor withhold it, nor return the Bill. They simply keep the Bill pending indefinitely. This is often referred to as a "pocket veto." This action is a gross violation of the constitutional scheme.

• It violates the word "shall declare" in Article 200, which implies a duty to decide.

• It frustrates the legislative will of the elected government.

• It is an abuse of the constitutional position.

The Supreme Court, in various observations, has frowned upon such inaction. While there is no explicit time limit in Article 200, constitutional morality and the principle of responsible government demand that the Governor act within a reasonable time. Indefinite inaction is a form of veto that the Constitution does not grant.

VI. Situational Discretion and Legitimate Grounds for Intervention

While the Governor's power to withhold assent is severely circumscribed, there are legitimate, situation-specific grounds where the Governor may be required to act with a degree of discretion. These are exceptions that prove the rule and are tightly defined.

» Constitutionality of the Bill: If a Bill is prima facie and patently unconstitutional—for example, a Bill that explicitly discriminates on the basis of religion or a Bill that a state has no legislative competence to enact—the Governor has a constitutional duty to intervene. However, this is not a power to make a final judicial determination. The appropriate course, in such a rare case, would be to reserve the Bill for the President's consideration, as the President has the benefit of the advice of the Union Law Ministry and the Attorney General. The Governor should not act as a court of first instance.

» Bills Passed during Improper Legislative Procedure: If there is a serious and demonstrable flaw in the legislative process itself (e.g., the Bill was passed without the requisite quorum, or in violation of a mandatory procedural rule), the Governor may be justified in returning the Bill for reconsideration or reserving it. However, this must be based on objective facts, not on unsubstantiated claims.

» Bills Passed by a Government that has Lost Confidence: This is a classic example of situational discretion. If a Bill is presented to the Governor at a time when the government has clearly lost its majority in the House (as demonstrated by a floor test or a no-confidence motion), the Governor would be justified in withholding assent until the political uncertainty is resolved. The rationale is that the Council of Ministers may no longer represent the will of the legislature. However, this discretion must be exercised with extreme caution and based on concrete evidence, not on mere speculation or political reports.

VII. Consequences of Unconstitutional Withholding of Assent

When a Governor unconstitutionally withholds assent or engages in a pocket veto, it leads to several adverse consequences:

• Subversion of Democracy: It overrides the mandate of the people as expressed through their elected representatives.

• Erosion of Federalism: It transforms the Governor from a constitutional bridge into an agent of political obstruction, damaging the Centre-State relationship.

• Constitutional Crisis: It creates a deadlock between the state government and the Raj Bhavan, bringing the legislative process to a halt.

• Judicial Intervention: The only recourse for a state government is to approach the High Court or the Supreme Court under its writ jurisdiction. The courts can issue a writ of mandamus commanding the Governor to perform the constitutional duty and declare the inaction or the decision to withhold assent as unconstitutional. However, this judicial remedy is time-consuming and politicizes the issue further.

Conclusion

The constitutional limits on the Governor's power to withhold assent to Bills are both explicit and implicit, derived from the text of the Constitution, the intent of its framers, and a consistent line of judicial pronouncements. The office of the Governor was never intended to be a super-legislature or a political opponent of the state government. The power under Article 200 is a structured power, designed to be exercised within a narrow framework.

» The landmark Nabam Rebia judgment has settled the legal position with finality: the Governor has no general discretion to withhold assent. The only permissible discretion is to reserve a Bill for the President's consideration on specific, constitutionally recognized grounds. The power to return a Bill for reconsideration is tempered by the mandatory injunction to assent if the legislature persists. The practice of using a pocket veto through indefinite inaction is a clear violation of the constitutional mandate.

The true role of the Governor in the legislative process is that of a wise counsellor and a constitutional sentinel, ensuring that the machinery of government functions smoothly and in accordance with the Constitution. Any attempt to expand this role into one of an active veto-player undermines the principles of cabinet responsibility, state autonomy, and democratic governance. Upholding these constitutional limits is not just a legal necessity but a democratic imperative for the survival of India's federal structure.

Here are some questions and answers on the topic:

1. Does the Governor of a state possess an independent, discretionary power to withhold assent to a Bill passed by the State Legislature?

No, the Governor does not possess an independent or discretionary power to withhold assent to a Bill. This position is firmly established by the Indian Constitution and reinforced by the Supreme Court. According to Article 163 of the Constitution, the Governor must act on the aid and advice of the Council of Ministers in all matters, except in those few functions where the Constitution expressly grants discretion. The power to deal with Bills under Article 200 is not one of these expressly granted discretionary powers. The Supreme Court, in the landmark case of Shamsher Singh vs. State of Punjab, clarified that the Governor is a constitutional head and the real executive power resides with the elected government. Therefore, the decision to withhold assent cannot be based on the Governor's personal or political judgment but must be taken on the advice of the state's Council of Ministers. The act of withholding assent is not an end in itself; it is constitutionally meaningful only when it is followed by the subsequent step of reserving the Bill for the consideration of the President of India on specific grounds.

2. What is the significance of the Supreme Court's judgment in the Nabam Rebia case regarding the Governor's power to withhold assent?

The Supreme Court's judgment in the Nabam Rebia case is of profound significance as it authoritatively settled the legal position on the Governor's power concerning legislative Bills. The Constitution Bench of the Court categorically declared that the Governor has no discretion to withhold assent to a Bill passed by the State Legislature, except in the circumstances as provided in the Constitution. The Court interpreted Article 200 to mean that the power to "withhold assent" is not a standalone, discretionary power but is intrinsically linked to the option of "reserving the Bill for the consideration of the President." This means a Governor cannot simply veto a Bill; if the Governor has objections, the constitutional course is to reserve the Bill for the President's decision. This judgment severely curtails any attempt by a Governor to act as an adversarial authority to the elected state government and reinforces the principle that the Governor must function as a constitutional head acting on the aid and advice of the Council of Ministers.

3. What are the constitutional limits on the Governor's power to return a Bill for the legislature's reconsideration?

The Governor's power to return a Bill for reconsideration, provided under the proviso to Article 200, is subject to three key constitutional limits. First, this power cannot be exercised in the case of a Money Bill; it applies only to ordinary legislation. Second, the Governor must return the Bill "as soon as possible" after it is presented for assent, which implies a constitutional duty to act without undue delay and prevents the use of tactical procrastination. The third and most crucial limit is that if the State Legislature passes the Bill again after such reconsideration, with or without accepting any of the Governor's recommended amendments, the Governor is left with no choice whatsoever. The Constitution uses the mandatory phrase "shall not withhold assent therefrom," making it obligatory for the Governor to give assent. This provision ensures the ultimate supremacy of the elected legislature in the law-making process and reduces the Governor's role to that of a recommending authority, not a veto-wielding one.

4. Is the practice of a Governor indefinitely sitting on a Bill, without granting or withholding assent, constitutionally permissible?

No, the practice of a Governor indefinitely sitting on a Bill, often termed a "pocket veto," is constitutionally impermissible and amounts to a dereliction of constitutional duty. Article 200 of the Constitution commands that when a Bill is presented to the Governor, the Governor "shall declare" either that he assents, withholds assent, or reserves the Bill for the President. The use of the word "shall" imposes a mandatory obligation to make a decision. By neither assenting nor refusing assent, the Governor violates this explicit constitutional mandate. Such inaction frustrates the legislative will of the democratically elected government and creates an unconstitutional deadlock. While the Constitution does not specify a time limit, constitutional morality and the principles of responsible government demand that the Governor exercise this duty within a reasonable time. Indefinite inaction is an abuse of power that has been criticized by the Supreme Court and undermines the very foundation of the state's legislative autonomy.

5. In what specific situations does the Constitution allow the Governor to exercise genuine discretion in dealing with a Bill?

The Constitution allows the Governor to exercise a degree of genuine, situational discretion in dealing with a Bill primarily in two specific scenarios. The first and most explicit discretion is the power to reserve a Bill for the consideration of the President. This discretion, however, is not unfettered; it should be exercised on specific grounds mentioned in the Constitution, such as if the Bill appears to derogate from the powers of the High Court, violates the provisions of the Constitution, or encroaches upon the legislative domain of the Union. The second scenario involves situational discretion, where the Governor may need to act independently based on extraordinary circumstances. For instance, if a Bill is presented by a Council of Ministers that has demonstrably lost the confidence of the legislative assembly, as proven by a floor test, the Governor may be justified in withholding action on the Bill until the political uncertainty is resolved. Similarly, if a Bill is patently and unequivocally unconstitutional on its face, the Governor may have a duty to reserve it. However, this is not a power to make a final judicial determination but a protective measure to refer a clearly defective law for higher scrutiny.

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