The West Bengal government contended before the Supreme Court on Wednesday that a governor has to immediately decide on a bill sent by the state legislature as he does not have any power to withhold assent.
The argument came after Tamil Nadu said there must be fixed timelines for the governor or President to decide on bills, as laid down by a recent (April 8) decision of the top court. This decision by a two-judge bench fixed a three-month deadline for the President to decide on bills referred by a governor, and one month for a governor to act on re-enacted bills. In the event the governor withholds consent, the judgment required him to return the bill to the legislature within three months.
Appearing for West Bengal, senior advocate Kapil Sibal said, “The fact that the governor is required to deal with a bill of the legislature, there is an element of immediacy involved because legislative measures cannot await executive stonewalling.”
The five-judge bench comprising Chief Justice of India (CJI) Bhushan R Gavai, and justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar questioned Sibal’s “immediacy” argument by asking whether the governor is bound to assent and not withhold assent. Sibal said that the governor cannot withhold assent. He submitted, “You cannot have the executive becoming a roadblock in implementing the will of the people represented by the elected legislature.”
{{/usCountry}}The five-judge bench comprising Chief Justice of India (CJI) Bhushan R Gavai, and justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar questioned Sibal’s “immediacy” argument by asking whether the governor is bound to assent and not withhold assent. Sibal said that the governor cannot withhold assent. He submitted, “You cannot have the executive becoming a roadblock in implementing the will of the people represented by the elected legislature.”
{{/usCountry}}The bench expressed doubts over accepting such an argument. Justice Narasimha said, “In coming to a solution, are you saying that the Constitution compels that bills need to be assented and that it doesn’t contemplate a situation where the legislature passes a bill and it is not assented to. We need to find the textual requirement for that.”
On the other aspect of the governor’s power to refer a bill to the President, the bench noted that Article 200 is silent on what the President is required to do after receiving the reference from the governor. The provision states that in the event the governor does not assent to the bill, the governor shall reserve it for the “consideration” of the President.
The court found these words to be in stark contrast with the President’s power to assent or dissent to bills presented for her/his assent under Article 111.Justice Nath asked Sibal, “Article 111 says when the bill is passed again by the Houses with or without amendments and presented to the President for assent, the President shall not withhold assent. Why is the same language not there in the other provision? Why language is differently used in both 111 and 200?”
Sibal said, “The Constitution framers never imagined such a kind of thing would happen. Since 1950, this issue has not happened till 2022… Will of the people cannot be subjected to executive whims and fancies. As a matter of constitutional law, this court should not allow the executive to interfere with the will of the people.”
Article 200 requires the governor to either assent to, withhold, or reserve the bill for the consideration of the President. “Such a decision must be taken forthwith upon the presentation of the bill to the governor. This follows from the very nature of the provision, which ensures that the will of the people, as expressed through legislation, becomes law without delay,” Sibal said.
He added that while Article 200 requires the governor to return the bill to the legislature “as soon as possible”, there is an “inbuilt constitutional mandate” that the decision to assent, withhold, or reserve must be taken even faster than “as soon as possible” i.e. be taken forthwith, he added.
Sibal pointed out that the Constituent Assembly originally provided for a fixed time limit of six weeks for the governor to act on a bill. The removal of this fixed period and the substitution of the words “as soon as possible” was not to dilute timeliness but to ensure that the governor was not bound to wait for the full six weeks and could act earlier if possible. “The governor’s role under Article 200 involves no impossibility that would justify inaction, and as a matter of law there cannot be impediments in the way of the governor dealing with a bill presented to him,” he said.