A Hard Year For Federalism— Part 3 of the interview with P.D.T. Achary

In the third part of this The Leaflet exclusive interview, one of India's foremost constitutional and parliamentary procedure experts, P.D.T. Achary, reflects on the concerning new trend in India of governors sitting on Bills.

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Read Part 1 here.

Read Part 2 here.

Aakritee Raj: Another recent piece of yours sheds light on a concerning trend— how governors routinely delay action on Bills passed by state legislatures. This practice fundamentally undermines the legislative powers of states and weakens the machinery as a whole.

Recently, the Supreme Court came down strongly upon the practice and said that a governor has to either pass the Bill or send it back. What is your take on the issue?

P.D.T. Achary: I have already written on this issue, clarifying certain aspects of it. Article 200 of the Constitution of India makes it very clear that the governor has certain options. The point to note is that when the Constitution provides various options to the governor, they are obligated to choose one and only one of those options.

Now, what are these options?

One option is to give assent. The second is to not give assent or withhold it. The third is to send the Bill back to the assembly for reconsideration, in which case the governor has to give assent. The fourth is sending it to the President.

Also read: Governor bound by advice of Council of Ministers on recommendation to summon session of legislative assembly: Supreme Court on Punjab row

Despite the Supreme Court consolidating it into three options, I believe there are four. The governor can choose any one of these options. However, withholding assent is not an option. It is not an option anywhere in the world where the parliamentary system is in place. The power to withhold assent rests only with the sovereign.

In the United Kingdom, as we have borrowed much from their system, the sovereign possesses the authority to withhold assent to a Bill. However, this power is only exercised upon the advice of the council of ministers.

Now, the question arises, under what circumstances can a council of ministers advise the governor to withhold assent? They are the ones who introduced the Bill, secured its passage in the House, and subsequently submitted it to the sovereign for assent. It raises a significant query as to how the same council of ministries can then advise the sovereign to withhold assent. That seems absurd.

The point is that if the government, after submitting the Bill to the sovereign for assent, has second thoughts and wishes to reconsider, they cannot annul it because it is with the sovereign.

The sovereign cannot withhold assent except on the advice of the councilor. This is the law. The sovereign cannot withhold assent without being advised by the council of ministers. Consequently, the council of ministers will then advise the governor to withhold assent, closing the matter as the government no longer wishes to proceed with the law.

This is the sole situation where such an action can occur. However, the power needs to exist for the sovereign to exercise it. This power remains in place, even though it is rarely used except when the government or the council of ministers advises the president to withhold assent.

Also read: Article 200 of the Constitution of India and the powers of the governor: The Kerala context

The second option is sending the Bill back to the assembly, which is the fairest and most reasonable choice. If the governor has reservations about a specific provision or the entire Bill, they can send a message expressing these concerns and requesting a reconsideration. The governor can even suggest amendments.

When this message reaches the assembly, they will promptly convene to review the governor's suggestions. If the assembly passes the Bill in its original form, despite the governor's reservations, the governor must give assent. This is a constitutional requirement, meaning they cannot withhold assent.

This has been reaffirmed by the Supreme Court in the Punjab judgment. The Supreme Court has done a brilliant job, clarifying that if the governor refuses assent, they must send it to the assembly.

This effectively eliminates the option of withholding assent. Now, the remaining option, sending it to the President, has become a tricky issue.

In Kerala, for example, the governor has retained about eight Bills for over two years. However, when this matter reached the Supreme Court, the governor promptly granted assent to one Bill while forwarding the other seven to the president.

This raises serious questions about the types of Bills that can be referred to the President. The Constitution explicitly mentions only one type of Bill that should be sent to the President— specifically, a Bill that alters or encroaches upon the powers of the high court, taking away or eroding certain powers.

Although the Constitution does not specify other types of Bills, there are two indirect references.

First, Article 213 states that if a Bill contains provisions similar to an ordinance, the governor, at their discretion, may send it to the President for approval. Ordinances can generally be issued by the governor, but certain ones require presidential clearance. Therefore, if the governor believes a Bill contradicts an Ordinance, they can send it to the President.

Also read: After Delhi, Punjab and Tamil Nadu, Kerala approaches SC against governor's recalcitrance

The second reference is under Article 254, which stipulates that if there is a conflict, the Union law prevails. However, even in the presence of a conflict, if the state law has been reserved for the President's consideration and the President grants assent, then the state law will prevail.

In other words, if there is a conflict, the governor can send the Bill to the President. These are the only two indirect references to Bills that can be sent to the President.

Based on these provisions, my conclusion is that the governor can send Bills that pertain to a concurrent list subject, but only in cases of repugnancy with an Ordinance.

However, the governor cannot send Bills on a state subject, as it would amount to an encroachment on federalism. This would involve bringing the President into state affairs, which goes against the constitutional division of legislative power in the concurrent list. When there is a dispute, the President can naturally examine and consider it. 

However, when it comes to matters related to the state subject, the President has no authority to intervene. 

Therefore, my deduction is that the governor cannot send a Bill on a state matter to the President. The governor can only send Bills on concurrent subjects, and even then, only in cases of repugnancy or if the Bill affects certain provisions of the high court.

Also read: Governors sitting on Bills is a dangerous scribbling of the 'grammar of anarchy'

A.K: After observing the affairs in Kerala and Punjab, what do you think the future would look like? How does one curb this tendency?

P.D.T.A: Once the Bill is sent to the President, it is the Union government that decides whether the President should assent to it or not. It is not the President who decides; it is the Union government that advises the President.

Typically, these decisions are not publicly disclosed by the Rashtrapati Bhavan, leaving the fate of these Bills unknown.

There is an uncertainty surrounding this process. I am not saying that they will never approve a Bill, but I am emphasising the uncertainty surrounding the entire matter.

A.K: Satya Pal Malik, the former governor of Jammu and Kashmir, dissolved the assembly before the incumbent Chief Minister and leader of Jammu and Kashmir People's Democratic Party, Mehbooba Mufti, could prove her majority.

Although the governor cobbled together an explanation for his actions, which he has explained in an interview with Karan Thapar, do such actions not fortify all the aspects that we have discussed until now?

It clearly shows an instance where the governor acts over and above the powers vested with him. What are your thoughts on this sir?

P.D.T.A: Without specifically addressing Kashmir, I would like to point out that there have been instances where governors exceeded their boundaries and took actions that are unconstitutional in nature.

This has been observed in states such as Tamil Nadu, Kerala and Telangana. Such actions are not a valid exercise of a governor's power. It is unfortunate, and governors should adhere to the Constitution because they are not politicians. They are constitutional authorities with a significant responsibility to ensure good governance in the states.

Governors have the right to caution and advise the government, expressing when they believe certain actions are incorrect. Elected officials are answerable to the people, not the governor. The governor is not personally held responsible for their actions. 

Also read: Self-governance is better than good governance, Zafar Shah on the final day of Article 370 hearings

Therefore, governors should refrain from getting involved in politics. However, at times, they seem to function more as representatives of the Union government, which may be led by one party, while the states are governed by another party. This leads to political rivalry.

A.K: It seems to be a trend where Bills are withheld in states ruled by a party that is not in power at the Union level. 

Read Part 1 here.

Read Part 2 here.

Transcribed by Shrikha Gowri.