Governor has no power to halt law-making by legislature, holds SC in Kerala matter

While expressing its displeasure with the Kerala governor Arif Mohammed Khan for sitting on Bills for long periods, a three-judge Bench remarked that governors could not use their powers to halt the law-making exercise of the legislature.

—

ON Wednesday, the Supreme Court expressed its displeasure with Kerala governor Arif Mohammed Khan for sitting on Bills passed by the Kerala legislative assembly for two years.

A three-judge Bench comprising the Chief Justice of India (CJI) D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra remarked that governors could not use their powers to halt the law-making exercise of the legislature.

The Bench made these observations after senior advocate K.K. Venugopal, for the Kerala government, informed the Bench that after the Bench issued notice on the petition filed by the state government, the governor assented to one Bill while sending the remaining seven Bills to the President of India for consideration.

Of these Bills, three have remained pending with the governor for more than two years, and three more in excess of a year.

Venugopal also argued that the governor could not simply refer the Bills to the President. He could refer the Bills to the President only if there was repugnancy between the state law and a Union legislation.

Venugopal, thus, prayed the court to lay down guidelines on when a governor of a state can send Bills passed by the state legislature to the President.

The Bench, however, pointed out that it was not the relief asked for in the petition. The Bench eventually granted permission to the state of Kerala to amend its petition.

In the recent past, governments of many non-Bharatiya Janata Party-ruled states—prominent being Tamil Nadu, Telangana, Punjab and Delhi— have approached the Supreme Court against the recalcitrance of governors.

In the Punjab matter, the Supreme Court observed: "The governor, as an unelected head of the state, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the state legislature."

In its petition, the state government has argued that grave injustice is being done to the people of the state as well as to representative democratic institutions (i.e., the state legislature and the executive) due to the governor keeping Bills pending for long periods of time.

"The governor appears to be of the view that granting assent or otherwise dealing with Bills is a matter entrusted to him in his absolute discretion, to decide whenever he pleases. This is a complete subversion of the Constitution," the state government contends.

"The conduct of the governor, as would presently be demonstrated, threatens to defeat and subvert the very fundamentals and basic foundations of our Constitution, including the rule of law and democratic good governance, apart from defeating the rights of the people of the state to the welfare measures sought to be implemented through the Bills," the state government argues.

The first proviso to Article 200 states that the governor may "as soon as possible after the presentation" of the Bill for assent, return the Bill if it is not a money Bill together with a message for reconsideration to the House or Houses of the state legislature.

The expression "as soon as possible" has significant constitutional content and must be borne in mind by constitutional authorities.

The words "as soon as possible", the Kerala government argues, necessarily mean that not only should pending Bills be disposed of within a reasonable time, but also that these Bills have to be dealt with urgently and expeditiously without any avoidable delay.