CAN JUDICIARY REVIEW INACTION OF GOVERNORS ON BILLS?

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Picture Courtesy:  THE HINDU 

Context

The Supreme Court questioned why a Governor's inaction on bills under Article 200 should be immune from judicial review when their discretion in imposing President's Rule under Article 356 is reviewable.

Governor's Role under the Indian Constitution

It is a constitutional authority appointed by the President as per Article 155 and holds office during the pleasure of the President.

Serve as the constitutional head of the state and act as a link between the Union and State governments.

Formal head of the state executive, authority is exercised on the advice of the State Council of Ministers, except in functions designated as discretionary by or under the Constitution (Article 163).

Powers of Governor under Article 200

Article 200 governs assent to state Bills, providing three formal courses of action when a Bill is presented after being passed by the state legislature:

• Grant assent, making the Bill a law.
• Withhold assent and return the Bill (if it is not a Money Bill) for reconsideration.
• Reserve the Bill for the President’s consideration, but only in specified instances, such as Bills affecting the High Court’s powers.

The Constitution does not specify a timeframe within which the Governor must act on a Bill.

Issue of Governor’s Inaction on state bill

The lack of an explicit timeline in Article 200, resulting in "pocket veto"—the indefinite withholding of assent without expressly rejecting or returning the Bill.

The inaction compromises the legislative mandate of elected governments, degrades democratic accountability, and lead to legislative deadlocks. This is observed in various states, including Tamil Nadu, Kerala, Telangana, Punjab, Chhattisgarh, West Bengal, Karnataka, and Rajasthan.

• State governments view this attitude as an insult to the people's mandate, hindering the implementation of elected governments' policies.

Judicial Intervention

Rejection of "Pocket Veto" and Indefinite Delay: Supreme Court on several occasions, declared that inaction by the Governor on a Bill is not a constitutionally recognized mode of action and against the constitutional value of representative parliamentary democracy.

• Such indefinite delay is considered unconstitutional and hampers the functioning of the state legislature.
• Court emphasized that if a Governor withholds assent, they must return the Bill to the legislature "as soon as possible".

The Tamil Nadu Case (2025): In State of Tamil Nadu v/s The Governor of Tamil Nadu, the Supreme Court found the Governor's actions of delaying assent and then reserving re-passed Bills for the President unconstitutional.

• The Court declared the withholding of assent unconstitutional and effectively "deemed assented" to 10 Bills using its plenary power under Article 142 to ensure "complete justice".

Imposition of Timelines: Addressing the constitutional lacuna in Article 200 (which uses "as soon as possible" but lacks an explicit timeline), the Court prescribed strict timelines:

• One month for decisions (assent, withhold, or reserve for President) when acting on the advice of the Council of Ministers.
• Three months for decisions when the Governor acts contrary to the advice of the Council of Ministers (e.g., returning a Bill or reserving it for the President).
• One month for Bills re-passed by the Assembly; at this stage, the Governor must grant assent and cannot reserve the Bill for the President.
• For the President's action on reserved Bills, a decision should be taken within three months.

Scope of Discretion and Judicial Review: The Court clarified that the Governor’s discretionary powers are limited. The Governor is expected to act on ministerial advice in almost all matters.

• Inaction or delayed action can invite judicial correction, and the Governor may be compelled to act through a writ of mandamus if no sufficient explanation for the delay is provided.

Significance of Judicial Intervention

Strengthening Constitutional Morality: By prescribing time-bound action, the Court ensures that Governors' constitutional duties are performed promptly, backing the fact that constitutional offices serve the public mandate, not partisan interests.

Reaffirmation of 'Aid and Advice' Principle: Declares that governor discretion is not absolute and is bound by ministerial advice under Article 163, upholding the Governor's facilitative role in a parliamentary democracy.

Setting a Precedent: The judgment offers a template for future cases of indefinitely stalled state Bills, accelerating adjudication in disputes from states like Punjab, Kerala and Telangana.

Expansion of Judicial Oversight: The Court's use of Article 142 to directly grant assent indicates the judiciary's willingness to rectify unconstitutional deadlocks, declaring that governors' inaction is subject to judicial review.

Counter View/Concerns of Judiciary Involvement

Judicial Overreach vs Separation of Powers: Critics argue that by imposing timelines and creating a concept of "deemed assent," the judiciary may be encroaching on the executive's domain and violating the principle of separation of powers.

• The Solicitor General argued that such intervention amounts to "judicial amendment" of the Constitution and that the Court should not "assume the power to create timelines".  

Non-Justiciability: Union government argued that decisions of the Governor and President under Articles 200 and 201 are not justiciable and should be resolved politically, for example, through discussions between the Chief Minister and the Prime Minister or President.

Presidential Reference (Article 143): Following the Supreme Court's judgment, President invoked Article 143(1) to seek the Supreme Court’s advisory opinion on 14 questions, directly challenging the judicial imposition of timelines and the concept of "deemed assent".  

What are the Challenges Related to Governors?

Politicization of the Governor’s Office: Especially in states where the ruling party differs from the Union government.

• Governors are seen as acting as agents of the Centre's ruling party, strained cooperative federalism.
• Examples include the Arunachal Pradesh case (2016), where the Governor's actions led to the dismissal of an elected government, later overturned by the Supreme Court.

Questionable Use of Discretionary Powers: Criticised for misusing discretionary powers under Article 356 (President rule) without a floor test, as seen in Uttarakhand (2016).

• Accused of overreaching in administrative matters, bypassing elected state governments, and interfering in appointments, such as Vice-Chancellors in state universities, leading to governance paralysis and legal battles.

Lack of Accountability and Constitutional Lacunae: Governors are accountable to the President and can be removed at the Union government's discretion, without an impeachment process.

• Lack of direct accountability at the state level allows them to act without facing immediate consequences, undermining their impartiality.

Way Forward  

Legislative/Constitutional Amendment: Insert clear timeframes (e.g., 1-2 months) in Article 200 or state laws to eliminate ambiguities like "as soon as possible" and prevent indefinite delays.

Amend Article 163: To limit the Governor's discretionary powers, clarifying that they should only be used in exceptional circumstances impacting national interest or constitutional integrity, to prevent political bias.

Implement Commission Recommendations: Institutionalise suggestions of the Sarkaria and Punchhi Commissions on minimising politicisation of governor roles and clarifying conditions and time limits for withholding assent.

• Sarkaria Commission (1988):
• Governor discretion should be exercised rarely, in line with the constitutional values.
• Suggested Governors to avoid political partisanship and follow the advice of the Council of Ministers in almost all matters.
• Suggested that Governors should be appointed after consulting the Chief Minister.
• Stated that Governors should not have recent political affiliations.
• Recommended that the Governor's role in university governance should be limited, with states having a greater voice.
• Punchhi Commission (2007)
• Proposed that Governors should act on Bills within a fixed timeframe, specifically a six-month limit for reserved Bills.
• Recommended stricter safeguards against the misuse of Article 356 (President’s Rule).
• Proposed an impeachment process for Governors at the state level to enhance accountability.
• Venkatachaliah Commission (2002): Suggested that the appointment of Governors should be handled by a committee consisting of the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the relevant state.

Enhanced Cooperative Federalism: Promoting regular communication between the Governor's office and the State Cabinet can help resolve issues before they escalate.

• Forums like the Inter-State Council can be utilized for better coordination and dispute resolution between the Centre and states.  

Ensuring a Neutral Governor’s Office: Integrate neutrality and constitutional expertise as key criteria in the appointment process.

Political Resolution: Resolve disputes administratively or politically within constitutional limits, rather than always through the courts.

Review and Accountability Mechanisms: Introducing an impeachment process for Governors at the state level could enhance accountability.

• A periodic review mechanism by Judicial Commissions could be set up to assess how Governors exercise their powers, to ensure their actions align with constitutional norms and limit interference with state governance.

Clear Guidelines on President's Rule (Article 356): The Governor's discretion in recommending President's Rule must be exercised judiciously, backed by objective material, and remain open to judicial scrutiny.

• It should be a last-resort mechanism, invoked only after all constitutional remedies are exhausted.

Source: THE HINDU