If Governors Can Veto Bills By Withholding Assent, Even Money Bills Could Be Blocked : Supreme Court In Presidential Reference Hearing

During the hearing of the Presidential Reference on the issue of assent to bills, the Supreme Court on Tuesday expressed concerns at the interpretation of Article 200 of the Constitution that Governors have an independent power to withhold a Bill, without returning it to the State Legislative Assembly.

If such an interpretation is accepted, it would mean that Governors can even withhold money bills, which they are otherwise bound to approve, the Court orally remarked. The Court remarked that such a situation is "problematic".

The hearing is before a Constitution Bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vilkram Nath, Justice PS Narasimha and Justice AS Chandurkar.

Addressing Senior Advocate Harish Salve, who is representing the State of Maharashtra, Justice Narasimha referred to the Union's argument that the power of withholding as per Article 200(1) cannot be read with the option of returning the Bill to the Assembly as per the proviso to Article 200. According to the Union, if the Governor withholds a Bill, it means that the Bill lapses. In other words, the Governor can veto the Bill by withholding.  The Union disagreed with the Supreme Court's view in the TN Governor and Punjab Governor cases that if a Governor withholds a Bill, then he must necessarily return it to the assembly for reconsideration.

Justice Narasimha said :

"The Union says the power of withholding stands on its own and the Governor can withhold the Bill. Therefore, when you independently exercise the power of withholding, it is a little problematic. Because, at the threshold, the Governor withholds the Bill. There is a problem because with this power, even a money bill can be withheld. The proviso will not apply there. There is a big problem with that interpretation. Assuming for a minute that it is permissible, even at the threshold, a Bill can be withheld,..."

Justice Narasimha pointed out that the proviso to Article 200 says that, except in the case of a money bill, a Governor can return the Bill to the Assembly for reconsideration. If an independent power of the Governor to withhold a bill is recognised, "a money bill can also be straightaway withheld," Justice Narasimha said. "He can stop a money bill, straightaway," Justice Narasimha said. "He can," Salve replied.

Salve said that if one reads the plain language of Article 200 without any "preconceived notions", it follows that the Governor can simply withhold a Bill. The substantive provision of Article 200 does not say that the Governor cannot withhold a money bill, he stated. "What we are doing is that we are picking words from outside the provision and adding it to the provision because we feel that there should be some limitation," Salve said. He asserted that "withholding" was a fourth option available to the Governor, apart from granting assent, returning to the assembly and reserving for the President's assent.

Justice Narasimha again asked, "How do you reconcile that a money bill can be rejected at the outset by the Governor by the substantive provision? He can return the Bill only if it is not a money Bill? How do you reconcile this?"

At this juncture, Solicitor General of India Tushar Mehta interjected to say, "Article 207 has the answer." SG said that as per Article 207, a money bill can be introduced only with the proposal of the Governor. Hence, there is no question of the Governor withholding a money bill, since it is introduced with the Governor's recommendation, SG explained.

Salve however said that there can be a situation where the money bill passed by the legislature is different from the version recommended by the Governor. "If what is approved finally does not accord with what was recommended by the Governor, the Governor can withhold assent," he said, adding that he was testing the argument with hypothetical situations.

Salve said that since the Constitution framers inserted a safeguard regarding money bill in the form of Article 207, they may not have considered it necessary to extend the fourth option (withholding) to money bills.

Salve stated that if the Constitution framers did not place any limitation on the Governor's options, then such limitations cannot be added through interpretation. He also argued against fixing timelines for the President and Governors to act on Bills.

"Article 200 does not set out a time limit under which the Governor has to set out his discretion- political process takes place behind the scheme, we achieve in 15 days but in some cases it takes 6 months. This can't be sitting in ivory tower and taking decisions. Governor is appointed by the President, and he holds office during the pleasure of President. We have to realise, it is within the Constitution, Governor is appointed by President and holds office virtually at his pleasure-in one sense he is the channel of communciation between Union and State and it is hard to believe that when Union does not accept the Bill and Governor withholds, it would be hard to believe that Union has no role to play. This is how the Constitution works," he said.

He further argued that it was not open for the Court to review why the Governor had withheld assent. If the provision has no express limitations, there are no "judicially manageable standards" by which the exercise of the power can be reviewed. To a pointed query by the CJI "Can the court ask the Governor why he is withholding?", an emphatic 'No' was Salve's answer.

Senior Advocate NeeraJ Kishan Kaul and Maninder Singh, representing the States of Madhya Pradesh and Rajasthan respectively, also made arguments supporting the Union's submissions.

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The hearing is progressing. Live updates can be followed here.

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