Governors have no discretion under Article 200; are bound by advice of state Cabinet: SC

Ruling that governors don’t not have discretion while exercising their powers under Article 200 of the Constitution in dealing with Bills passed by state Assemblies presented to them, the Supreme Court has said that they must abide by the advice of the Council of Ministers.

“Once the Bill is passed by the state legislature, and presented to the Governor for assent, he must act on the aid and advice of the Council of Ministers as a general rule and only in exceptional situations… should he reserve it for the consideration of the President,” a Bench led by Justice JB Pardiwala said while deciding on Tamil Nadu Government’s petition against the Governor for sitting over Bills.

“The framers did not expect that the Governor would, as a matter of routine, declare the withholding of assent to Bills casually. The deletion of the expression ‘in his discretion’ from the first proviso is also an unmistakable indication of the intent of the framers in vesting no discretion in the Governor as regards the withholding of assent and returning of the Bill along with suggestions for the introduction of amendments,” said the Bench which also included Justice R Mahadevan.

Describing the role of a Governor as that of a “friend, philosopher and guide”, the Bench said the advisory role of the Governor was best played by engaging with the ministerial council even before the legislation’s introduction in the legislature.

“Due to this, the Governor must be conscious to not create roadblocks or chokehold the state legislature in order to thwart and trade the will of the people for political edge. The members of the state legislature having been elected by the people of the state as an outcome of the democratic expression are better attuned to ensure the wellbeing of the people of the State. Hence, any action contrary to the express choice of the people, in other words, the state legislature would be a renege of his constitutional oath,” it said.

The top court said the Governor could exercise discretion only in specific limited exceptions provided under the Constitution. “Thus, we are of the view that the Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the council of ministers,” it said.

The only exceptions to this rule can be traced to the second Proviso to Article 200 and Article 163(1) of the Constitution, it said.

“Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion, would he be justified in exercising his powers under Article 200 contrary to the advice of the council of ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review,” it said.

The deletion of the expression ‘in his discretion’ by the framers of the Constitution during the course of adapting Section 75 of the Government of India Act, 1935, into Article 200 was a clear indication of their intent to make the ordinary exercise of powers of the Governor under Article 200 subject to the aid and advice of the ministerial council, the top court noted.

There were only two broad circumstances under which it would be permissible for the Governor to act in their own discretion under Article 200, it said.

“Where the Governor is by or under the Constitution required to act in his discretion. The only situation in which such exercise of discretion has been explicitly laid down in the Constitution is the second proviso to Article 200, that is, where, in the opinion of the Governor, the Bill, if assented to, would so derogate from the powers of the high court as to endanger the position which the high court is designed to fill by the Constitution,” the Bench said.

The second circumstance is where the Governor is, by necessary implication, required to act in their own discretion, it said.

This would include a situation where a Bill attracts such a provision of the Constitution which requires the mandatory assent of the president for securing immunity or making the law enforceable. Exercise of discretion is permissible in these cases. For instance, article(s) 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc., it said. This would also include situations where the exceptional conditions are applicable, i.e., the state Council of Ministers has disabled or disentitled itself; possibility of complete breakdown of the rule of law or by reason of peril to democracy/democratic principles respectively, as a consequence of which an action may be compelled which, by its nature is not amenable to ministerial advice, it said.