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Constitutional Law

Governor's Assent to State Laws

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 29-Mar-2024

Source: The Indian Express

Introduction

Recently, the Kerala Government approached the Supreme Court challenging the action of the President of India in withholding assent for four out of the seven bills referred by the Kerala Governor. The State also challenged the Governor's action of withholding assent to seven bills for as long as two years.

What was the Background of this Issue?

  • The bills related to amendments to laws concerning State Universities and Cooperative Societies.
  • The State pointed out that the Governor had kept these bills pending for several months, ranging from 7 months to 24 months from the date when the bills were passed by the Assembly.
  • Previously, the State filed a writ petition before the Supreme Court challenging the Governor's inaction.
  • After the Supreme Court issued notice on the petition on 20th November 2023, the Governor referred the seven bills to the President.
  • On 29th November 2023, while hearing the petition, the Supreme Court criticized the Governor for sitting over the bills.
  • On 29th February 2024 the President withheld assent from four bills and approved three other bills.
  • Presidential assent was withheld for the following bills.
    • University Laws (Amendment) (No. 2) Bill, 2021
    • The Kerala Co-operative Societies (Amendment) Bill, 2022
    • The University Laws (Amendment) Bill, 2022
    • The University Laws (Amendment) (No. 3) Bill, 2022

What are the Governor’s Powers Over Bills?

  • Article 200:
    • Article 200 of the Constitution of India, 1950 (COI) outlines the process for a Bill passed by the Legislative Assembly of a State to be presented to the Governor for assent, who may either assent, withhold assent or reserve the Bill for consideration by the President.
    • The Governor may also return the Bill with a message requesting reconsideration by the House or Houses.
  • Article 201:
    • It states that when a Bill is reserved for the consideration of the President, the President may assent to or withhold assent from the Bill.
    • The President may also direct the Governor to return the Bill to the House or Houses of the Legislature of the State for reconsideration.
  • Options Available with the Governor:
    • He may give assent, or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself.
    • He may reserve the bill for the consideration of the president. The reservation is obligatory where the bill passed by the state legislature endangers the position of the state high court.
    • However, the governor can also reserve the bill if it is of the following nature:
      • Against the provisions of the Constitution.
      • Opposed to the Directive Principles of State Policy (DPSP).
      • Against the larger interest of the country.
      • Of grave national importance.
      • Deals with compulsory acquisition of property under Article 31A of the COI.
      • Another option is to withhold the assent, but this is not normally done by any Governor because it would be an extremely unpopular action.

Can the Governor withhold His Assent to a Bill in Exercise of His Discretionary Powers?

  • While a plain reading of Article 200 of the COI suggests that the Governor can withhold his assent, experts question whether he can do so only on the advice of the Council of Ministers.
  • The Constitution provides that the Governor can exercise his executive powers only on the advice of the Council of Ministers under Article 154.
  • The larger question is why a Governor should be allowed to withhold assent when the Bill is passed by the Assembly.

What is the President’s Role in the Process?

  • In situations where a bill is sent to the President for consideration, the President can either give or withhold assent.
  • If the assent is withheld, the President requests the Governor to return the bill to the State Legislatures for reconsideration.
  • The State government then has six months to reconsider the bill, failing to do so results in its lapsing.
  • If the bill is passed once again by the State Legislature, it must be sent back to the President who, unlike the Governor, is under no obligation to give assent when accessing the reconsidered bill.
  • This is the only situation in which the State governments do not have the final say in their own lawmaking process.

Conclusion

It is therefore obvious that the reservation by the Governor to the President after keeping the Bills pending for a period of 11-24 months is a deliberate attempt to avoid carrying out his constitutional duty and function under Article 200 of the COI. Therefore, the Governors should adhere to the guidelines of Article 200, promptly communicating their concerns about Bills and sending them back to the State Legislature for reconsideration. This ensures a proper process and respects the Legislature's authority.