Set time frame for Governors to take decisions

KK Paul

Former Governor

SOME of the Bills duly passed by the state legislature at times get delayed for want of assent by the Governors, leading to avoidable strain and acrimony. Relevant to this matter are two judgments delivered earlier this month where the higher judiciary has made significant observations on the gubernatorial office.

Turning down the plea of the UP Government to not bind the Governor with a deadline of three months for deciding the cases on remission of sentences, the Supreme Court observed that “even a constitutional authority is not above the law.” Chief Justice of India DY Chandrachud said, “The law obligates each and every authority equally, and that the Constitution ascertains there is no vacuum even at the level of the constitutional authorities.”

In the second case, the Chhattisgarh High Court had to stay its own order while seeking a response from the Raj Bhavan on a petition highlighting the delay in the assent by the Governor to a Bill passed by the state legislature on December 2, 2022. A petition had been filed alleging a violation of Article 200 and that the Governor was stalling the duly passed Bill. Notices were also issued, but later a stay on its own order had to be granted keeping in view the provisions of Article 361, where a Governor is protected from court proceedings.

The main issue is the inordinate delay in assenting to the Bills received from various legislatures, particularly in some states where the ruling party is of a different hue from the one at the Centre. The possibility of just such a problem was visualised by the Constituent Assembly in 1949 at the drafting stage itself.

While debating in the Constituent Assembly, Brajeshwar Prasad (Bihar) was in favour of giving veto power to the Governor in respect of ‘unjust and unsound legislation’. On the other hand, Shibban Lal Saxena (United Provinces) had the foresight to mention, “I know that the Governor is the nominee of the President, but it is quite possible that the party in power in the province may not be the same as the party in power at the Centre… I think it will introduce a very wrong principle to give the Governor this power to go against the express wish of the Assembly as well as the state Cabinet.”

Ultimately, it was left to one of the members of the drafting committee, TT Krishnamachari, to explain that the Governor could not go against the wishes of the Cabinet. This enabled the Constituent Assembly to pass the relevant clause, and today it figures in Article 200, where towards the end it states, “Governor shall not withhold assent therefrom.”

The spirit and essence of Article 200, thus, clearly propel the Governor towards a constitutional decision with no scope for any discretion or a confrontational approach. However, the catch is that no time limit for taking a decision has been prescribed. At times, various Governors have used the ambiguity in the provisions of this enabling and empowering clause and sat over the Bills, which await their assent. Often, the term ‘pocket veto’ is used to describe such an action on the part of a Governor. Faced with a possible situation like this, the Chhattisgarh Government had moved the High Court to direct the Governor to fulfil his constitutional duties but failed to realise that there is another provision in the Constitution which insulates him from judicial action.

Nevertheless, having visualised the possibility of such a practice, all three commissions set up by the Centre on constitutional issues have addressed the issue and also suggested remedial measures. The Sarkaria Commission on Centre-state relations (1983) recommended, “In dealing with a state Bill presented to the Governor under Article 200, he should not act contrary to the advice of the state Cabinet, even though he may not have personally liked the policy embodied in the Bill. Only in rarest of the rare and exceptional cases, he may exercise his discretion where the provisions manifestly and clearly violate the Constitution.”

The National Commission to review the working of the Constitution (2002), chaired by former CJI MN Venkatachaliah, had recommended a time limit of six months in which a Governor should decide. Similarly, the Punchhi Commission (2007) recommended that the Governor was obliged to give his assent but take a maximum of six months. It was also recommended that Article 200 be so amended that the words “or that he withholds assent therefrom” are deleted. Perhaps, this deletion was recommended to remove any ambiguity and a false interpretation, as under the Constitution the Governor had to act on the advice of the Cabinet. This had also been affirmed earlier in the matter of Shamsher Singh vs State of Punjab, decided by a seven-judge Bench of the Supreme Court. All these recommendations have since remained as such, without any further movement.

Also concerning the time frame, in a separate matter, the constitutional power of the Governor under Article 192 to decide on the disqualification of MLAs has come under sharper focus. Here, he obviously does not take the advice of the state Cabinet, but has to obtain the opinion of the Election Commission. According to Article 192 (2), the Governor shall act on such opinion. The wording is simple and leaves none in doubt that there is no other option available to him, but here too, as no time frame has been mentioned, a state Governor has been sitting over the papers for over six months. In fact, even a former Chief Election Commissioner had to state that the Governor had to act, which did not elicit any response. In the meantime, he has left the matter for his successor to take a decision.

Though in a different context, a former PM is reported to have said that not taking a decision was also a decision; the office of the Governor, bound by the provisions of the Constitution, does not have that liberty. In our Constitution, there is no scope for indefinite procrastination, and in case such a situation does arise as the CJI has hinted, the SC may have to step in, but hopefully such a situation should never arise.

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