If Bills Can Be Withheld Without Returning To Assembly, Won't Elected Govts Be At Governors' Whims? Supreme Court Asks

If Governors can simply withhold their assent to Bills without returning them to the Legislative Assembly, would it not place the Governments elected by the majority at the whims and fancies of the Governor, asked the Supreme Court today during the hearing of the Presidential Reference on questions relating to the grant of assent to Bills.

A bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing the arguments of Solicitor General of India.

SG Tushar Mehta submitted that, as per Article 200 of the Constitution, the Governor has four options: grant assent, withhold assent, reserve the Bill for the President's consideration, or return the Bill to the Assembly. SG argued that if the Governor says that he was withholding the assent, then it means that the "Bill dies." The Governor need not return the Bill to the Assembly for reconsideration if assent was withheld, according to the SG. 

CJI Gavai then asked if such a power is recognised, would it not enable the Governor to withhold the Bill indefinitely? "According to you, withholding means the Bill falls through? But then, if he does not exercise the option of resending for reconsideration, he will withhold it for time immemorial," CJI said.

SG said that the Constitution itself has given that discretion to the Governor.

"Are we then not giving total powers to the Governor to sit in appeals? The Government elected by majority will be at the whims and fancies of the Governor," CJI observed.

The SG argued that the 3-judge bench's judgment in the Punjab Governor case, which held that the Governor must return the Bill to the assembly if he was withholding assent, was contrary to precedents of 5-judge bench judgments. In the Punjab Governor case, the Court held that the Governor's power to withhold assent as per Article 200 must be read with the first proviso to Article 200, which speaks of returning the Bill to the Assembly.  The SG argued that the interpretation in the Punjab Governor case was "erroneous". The two-judge bench in the Tamil Nadu Governor case followed the Punjab Governor case, which is in conflict with various larger bench decisions exactly on the same point, he added.

When the bench asked if the Constituent Assembly debated the meaning of the word 'withhold', SG Mehta replied in the negative. Justice Narasimha pointed out that the term 'withhold' is used twice in Article 200, first in the main provision and second in the proviso.

The Solicitor maintained that 'withholding' was an independent option available to the Governor. To illustrate, the SG said that if a State legislature passed glaringly egregious laws such as removing reservations altogether, or barring the entry of persons from other states, or mandating that its people must speak only one particular language, giving absolute immunity to the entire Cabinet from prosecutions, or barring central agencies from exercising their powers in the State, or undermining the powers of the President or the PM, etc, the Governor would be justified in withholding the Bill.

SG Tushar Mehta said that the power of withholding is to be exercised by the Governor rarely and sparingly to deal with such extraordinary situations. 

The SG submitted that the Governor is not just a "postman" to mechanically approve the Bills, and that he was representing the Union of India and the President. "A person who is not directly elected is not a lesser person," the SG said, asserting that the Governor was a person upon whom the Constitution has reposed trust to discharge Constitutional functions.

SG Mehta maintained that any other reading would make the power of withholding redundant. The idea is not to confer discretion on the Governor to "kill the Bill," he clarified. He added that the three-judge bench in the Punjab Governor judgment did not record the findings of the five-judge bench, including Valluri Basavaiah Chaudhary's judgment, which says the Bill falls through once the Governor withholds it. 

"Neither textually nor contextually, it is possible to conclude that the term withhold will have to be read as a temporary suspension of powers of granting assent till first proviso works out. There is no concept of temporary withholding of any bills. If the framers of the Constitution wanted to link the term withhold in the main part of Article 200 to read only in the context of first proviso, two things would have been provided a)the term withhold in the main part would have been qualified with the term subject to first proviso mentioned therein. b) the first proviso would have mentioned that the Bill so withheld shall be reconsidered by the House, which is not there," SG Mehta said.

Justices Kant, Narasimha and Nath, on the other hand, reiterated that the withholding of assent has to be read with the word 'unless', that is, the Bill falls through unless the procedure indicated in the first proviso is not followed. They added that even the Chaudhary judgment says the same.

The CJI added that they have not been referred to any judgment which says that the Governor can permanently withhold assent.

Justice Nath averred that if the intention was that there was a fourth option with the Governor, that is to return the Bill to Assembly and refer it for the President if the defects are not cured, then it would have been provided along with the line of options namely, giving assent, withholding assent and reserving it for the President. "Why did they need a separate option for that? why proviso for that? it could have been an option in the main," questioned.

At one point, Justice Narasimha said that the process of constitutional interpretation is not "frozen" and if the Governor exercises withholding simpliciter as the second option suggested by the SG, and matters come to an end, it could really be counterproductive as the political process is not "adjudicatory". He said that, for instance, if the Governor decides to withhold the Bill but when the political process "knocks at his door" and the Chief Minister says, they will find a solution and the Governor agrees to return the Bill to the Assembly to cure the defect. That way, the options must remain "open-ended".

"The way political process occurs is not adjudiciatory, even assuming the Governor says I withhold, political process can knock his doors and he can still open it and say, I will send it back to you, you consider and send it back. But to say if it comes for the first time he says, I withhold, the matter comes to an end. It can't be like that. It is counterproductive to the power of the Governor and counterproductive to the legislative process also. It has to be in a situation where it is open-ended. We see the point, what you are saying is, grossly a case falling under List I, he could say no but he could also say, please modify it," Justice Narasimha remarked.

Justice Kant also added that if withholding simpliciter is exercised, it makes the option of granting assent and reserving it for the President "defunct". He stated that the Governor exercises wide powers and an embargo, which is not there, should not be read into the provision. 

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