In a landmark ruling of significant constitutional importance, the Supreme Court held on Tuesday, April 8 that the Tamil Nadu Governor’s action of reserving bills for the President’s consideration after they were re-enacted by the state legislature is legally erroneous. The Government of Tamil Nadu had filed a writ petition in 2023 challenging Governor RN Ravi’s action of indefinitely withholding assent to 12 bills passed by the state legislature. Most of these bills aimed to empower the state government, rather than the Governor, to appoint Vice Chancellors of state-run universities.
After the Tamil Nadu government approached the Supreme Court, the Governor referred two of these bills to the President and withheld assent for the remaining 10. Although the Tamil Nadu Assembly re-enacted those 10 bills in November 2023, the Governor once again referred them to the President instead of granting assent. A division bench of the Supreme Court, consisting of Justices JB Pardiwala and R Mahadevan, has now found that the Governor’s actions “lacked bona fides” and were illegal. The court ruled that the Governor cannot exercise a “pocket veto” and obstruct the normal legislative process.
In this article, I will briefly examine the constitutional interpretation used by the court to reach its verdict, the broader legal and political implications of the judgement, and what it reveals about the design and practice of federalism in India.
Judicial counteraction
The Supreme Court, through this judgement, has aimed to balance the power between the Governor and the state government by circumscribing the powers of the Governor over granting assent to bills. The Court ruled that once a state legislature passes a bill, under Article 200 of the Constitution, the Governor has only three options: grant assent, withhold assent, or reserve the bill for the President’s consideration.
Article 200 also includes a proviso stating that if the Governor returns the bill for reconsideration to the legislature and the bill is passed again, the Governor cannot withhold assent. The Court clarified that this action of returning the bill is a part of the Governor’s power to withhold assent, and cannot be considered a fourth option available to the Governor. Therefore, once the legislature re-passes the bill, the Governor is constitutionally bound to grant assent and cannot reserve the bill for the President's consideration at that point. This curbs one of the strategies used by the Governor to avoid giving effect to bills.
The Court also proscribed another strategy used by the Governor, where he simply “sits on” the bill indefinitely without taking a decision, instead of granting or withholding assent or forwarding it to the President. Article 200 states that the Governor may return the bill to the house for reconsideration “as soon as possible”. The Court relied on this wording to hold that the Governor is required to act urgently and prescribed time limits within which the Governor must assent to bills under various circumstances.
The Court also drew up on constitutional history to arrive at its finding that the Governor does not have discretionary powers under Article 200. The bench noted that the words “in his discretion”, which was there in the equivalent provision of the Government of India Act, 1935, was removed from Article 200 by the Constituent Assembly, which clearly indicates that the Governor has to abide by the aid and advice of the Council of Ministers. The Court reasoned that if the Governor is granted discretion, it can turn him into “a super constitutional figure” who can bring the operation of the legislative machinery of the state to a complete halt.
What is particularly striking about the judgement is that the Court invoked its inherent powers to do “complete justice” under Article 142 of the Constitution to give effect to the bills in question. The bench noted that due to the “unduly long period” these bills had been kept pending and the “scant respect” shown by the Governor to previous Supreme Court decisions, they were “left with no other option” but to declare the bills “as deemed to have been assented”.
Essentially, the Court performed the legislative function of the Governor and brought a set of bills to life. This is an unprecedented and contentious counteraction by the Supreme Court that challenges the conventional ideas and processes of law-making. Soon after the Supreme Court published its judgement on the night of April 11, the Tamil Nadu government notified the 10 Acts through the official gazette. So, for the first time in India’s constitutional history, a government has notified legislations without the assent of either the Governor or the President.
Broader implications
The judgement has far-reaching legal and political implications. It will bolster the case of other opposition-governed states that have had run-ins with their Governors regarding the passing of legislation. For instance, the Government of Kerala had filed a similar petition before the Supreme Court in November 2023, contesting Governor Arif Mohammad Khan’s prolonged inaction on multiple bills passed by the state legislature. This judgement is likely to directly help the Government of Kerala in its legal challenge and also aid other states like Karnataka, where the Governor has returned certain bills.
The time limits for granting assent prescribed in the judgement will now govern the future actions of Governors across all states. If a Governor chooses to act against the advice of the Council of Ministers by withholding assent or reserving a bill for the President, it must now be done within three months. If any Governor fails to adhere to the timeline set out in the judgement, the state government has the right to seek judicial review.
Beyond the Governor, the Supreme Court has also brought the President’s actions under judicial review and held that the President also has “no pocket veto” under Article 201. The bench held that in cases where the Governor refers a bill to the President, the President must decide to assent or withhold within three months and if there is any further delay, he shall convey reasons for it to the concerned state government. Hence, the judgement has sought to ensure that no Governor or President in the future can indefinitely delay granting assent to bills passed by the state legislature.
Governors and the politics of federalism
The judgement also raises the larger question of what role a Governor should play in a federal constitutional democracy. The bench noted that the Governor must perform the role of a “friend, a philosopher and guide” and “must be the harbinger of consensus and resolution, lubricating the functioning of the state machinery by his sagacity”. While such a framing sounds too idealistic and far-fetched, the Court’s call for the Governor to “not create roadblocks or chokehold the State legislature” and clear directions on the time-bound manner in which a bill should receive assent from the Governor and President, presents a window for a reset of the union-state relations.
In recent years, the Governor has increasingly become a proxy for the Union government in the state. From installing chief ministers in case of hung assemblies to overriding decisions made by elected governments, the Governor, or the Lieutenant Governor, has often acted in a politically partisan manner in various states. This is, undeniably, symptomatic of the increasing hegemonic power that the current political dispensation at the centre has come to occupy and its insatiable desire to control all forms of authority.
However, what is at play here is not just peculiar to the current regime, but is also a function of the way power is organised in India’s constitutional order. Controversies regarding the actions of governors, after all, are not new and have manifested in various ways since independence. In fact, since the 1990s, Indian politics has become more federalised due to the rising influence of regional parties at the national level and Supreme Court judgements that have circumscribed the Governor’s powers. However, this de facto federalisation has not altered the formal division of power between the union and the states under the Indian Constitution, which continues to retain its centralising bias.
In the light of the Union government’s ascending influence over Indian polity, many opposition-run states, especially from the south, are increasingly putting up a joint front in challenging it in the public arena as well as in the courts. However, the fact that the Supreme Court had to creatively interpret the Constitution to impose limits on the Governor’s power points to concerns with the underlying constitutional framework that centralises authority and distrusts power being exercised from below. Hence, those advocating federalism should not only target the current regime for their anti-democratic actions, but should also question the Governor’s powers under the Constitution and champion alternative imaginations for organising political authority.
Mathew Idiculla is a legal and policy consultant and a PhD candidate at the Faculty of Law & Justice, UNSW Sydney. Views expressed here are the author’s own.