States will be at whims of governor if nod to Bills withheld: Supreme Court

The Supreme Court on Wednesday said that the power of the governor to permanently withhold assent to bills would leave the state government, which is elected with majority, at his “whims and fancies”.

 

“Would we not be giving total powers to the governor to sit in over an appeal. The government elected with the majority will be at (the) whims and fancies of (the) governor,” Chief Justice of India(CJI), Justice B R Gavai, said.

 

The court was hearing the maintainability of the reference made by President Droupadi Murmu under Article 143. The reference was concerning the April 8 ruling of the top court that set timelines for governors and the President to grant assent to bills passed by the legislature.

 

 

In the April 8 judgment, a bench of Justice J B Pardiwala and Justice R Mahadevan invoked its special powers under Article 142 of the Constitution to fix deadlines for the President and governors to act on state bills.

 

Replying to the query of the CJI, Solicitor General Tushar Mehta, appearing for the Centre, told the Constitution Bench of CJI B R Gavai, Justice Surya Kant, Justice Vikram Nath, Justice P S Narasimha, and Justice Atul S Chandurkar that everyone derives power from the Constitution.

 

On the powers of the governor under Article 200, Mehta said the governor has four options- assent to the bill, withhold assent, reserve the bill for consideration of the President or send it back to the legislature. He said that when the governor withholds assent, the bill falls through.

 

Article 200 of the Indian Constitution outlines the governor's powers regarding assent to bills passed by the state legislature. If a bill is returned, the legislature can pass it again with or without amendments, and the governor is then bound to give assent.

 

The bench, however, remarked that the governor has to communicate his or her decision and that the focal point of the debate would be whether withholding is temporary or permanent. Mehta said the power to withhold is to be used rarely and only in the first instance, as it leads to the death of the bill.

 

“The governor is not just a postman. He represents the Union of India, appointed by the President. The President is elected by the entire nation by way of the entire election and that is also a way of democratic expression,” Mehta said.

 

After the April 8 judgment, the President invoked Article 143(1) of the Constitution of India to consult the Supreme Court. This Article, commonly referred to as the power of ‘Presidential Reference’, empowers the President of India to seek the Supreme Court’s opinion on questions of law or fact of public importance.

 

President Murmu, on May 13, posed 14 questions to the Supreme Court of India on several aspects of law, including the ambit of the powers under Article 142.

 

In response, the states of Kerala and Tamil Nadu filed an application questioning the maintainability of the reference. It urged the Supreme Court to return the reference unanswered and said it was an attempt by the Centre to indirectly overrule binding judgments without disclosure.

 

Meanwhile, the central government supported the reference, arguing that the power of governors and the President to act on bills cannot be bound by judicial timelines. The hearing will continue on Thursday.