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Analysis of Supreme Court’s Judgment on Power of Governor

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 19-Dec-2023

Source: The Hindu

Introduction

The Supreme Court has recently adjudged the question upon the powers of the Governor in the case of State of Punjab v. Principal Secretary to the Governor of Punjab and Another (2023).

A 3-judge bench of Chief Justice of India (CJI), D Y Chandrachud, Justices J B Pardiwala, and Manoj Misra has held that the Governor has to return the bill to the assembly if he withholds his assent. The SC clarified this procedure stating that it was not clearly mentioned under Article 200 of the Constitution of India, 1950.

What is the Background of State of Punjab v. Principal Secretary to the Governor of Punjab and Another Case?

  • Beginning of Problem:
    • On 22nd February 2023, the Council of Ministers of the Government of Punjab forwarded a recommendation to the Governor of Punjab seeking the summoning of the Punjab Vidhan Sabha for its Budget Session commencing on 3rd March 2023.
    • The Governor’s refusal to do so, on the grounds that he was seeking legal advice, led to the institution of a petition before this Court on 25th February 2023.
  • Court’s Decision in Prior Petition:
    • The SC in State of Punjab v. Principal Secretary to the Governor of Punjab (2023) asked governor to apply mature political governance.
    • The court held that, “There was no occasion to seek legal advice on whether or not the Budget Session of the Legislative Assembly should be convened. The Governor was plainly bound by the advice tendered to him by the Council of Ministers”.
  • Position after the Judgment:
    • The session of assembly was commenced by the Speaker, and several bills were passed by the assembly forwarded for the assent of the Governor.
    • However, the Governor said that he cast doubt on the legitimacy and legality of those bills, and he was actively considering whether to obtain the legal opinion of the Attorney General for India “or as per the Constitution, to reserve these Bills for the consideration and consent of the President of India”.
  • Declaration of Illegitimacy of Session:
    • The Governor said that the Session during which those bills were passed for the assent of Governor were illegitimate and hence advised the Chief Minister to call for a fresh Monsoon/Winter Session.
    • And hence he did not declare in any public notification that he is withholding his assent to the Bills which lead to filing of petition in the case of State of Punjab v. Principal Secretary to the Governor of Punjab and Another (2023).

What were the Issues in the State of Punjab v. Principal Secretary to the Governor of Punjab and Another Case?

  • Whether the Governor can withhold action on Bills which have been passed by the State Legislature?
  • Whether it is permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session which has been adjourned but has not been prorogued?

What were the Observations of the Court with Regard to Governor?

  • Governor as Symbolic Head:
    • The court said that, in a Parliamentary form of democracy, real power rests in the elected representatives of the people.
    • The fundamental principle of constitutional law which has been consistently followed since the Constitution was adopted is that the Governor acts on the ‘aid and advise’ of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor.
  • Cannot Withhold Bill:
    • The first proviso to Article 200 envisages that, as soon as possible, after the presentation to the Governor of the Bill for assent he may return a Bill, which is not a Money Bill, together with a message requesting that the House or Houses would reconsider the Bill or any specific provisions of the Bill and in particular consider the desirability of introducing such amendments which he may recommend.
    • The judgment was based on the aforementioned proviso of Article 200, the SC clarified that the Governor cannot withhold the bill and has to return it to the assembly.
  • Manner of Exercising Jurisdiction:
    • The court also clarified while concluding that it has not expressed any opinion in regard to the manner in which the Governor will exercise his jurisdiction on the Bills in question presented to him.
    • However, he must act in a manner consistent with the provisions of Article 200 of the Constitution.

What were the Observations of the Court with Regard to Speaker?

  • Power of Speaker to Adjourn and Reconvene Session:
    • Article 178 of the Constitution provides for the office of the Speaker and Deputy Speaker of a Legislative Assembly.
    • The SC said that it is legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation.
    • Further, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House.
  • Decision on Act of Speaker:
    • The SC held that during the tenure of the Assembly, the House is governed by the decisions which are taken by the Speaker in matters of adjournment and prorogation.
    • The court allowed the Governor of Punjab to proceed to take a decision on the Bills which were submitted for assent on the basis that the sitting of the House which was conducted on 19th June 2023, 20th June 2023 and 20th October 2023 was constitutionally valid.

Way Forward

Governors can potentially hinder state lawmaking by reserving certain Bills for the President's consideration under second proviso of Article 200 and this point is yet to be decided in future.