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It is the Constitutional obstinacy of a Governor

The CJI explained: A Head cannot refer re-enacted Bills to President

Madabhushi Sridhar Acharyulu, Former CIC, Professor and Advisor of School of Law, Mahindra University, Hyderabad. (3.12.2023)

As per the Constitution of India, if the bill is not sent, resent, enacted, re-enacted, or repassed the Bills can not be withheld by any Governor on any day, for any reason. Read Article 200 under its first proviso. The Governor cannot violate the Constitution of India. Once, the Governor withholds assent, the Governor cannot stultify the Bills. Whether the Bills can be ‘re-enacted. There is nothing to decide on a constitutional issue than what a Governor has done in Tamil Nadu. The Head of the State was criticized as what is called “constitutional obstinacy” by referring 10 key Bills re-enacted by the State Assembly and sent to the President for consideration on November 28. This Governor cannot refer the Bills, re-passed by the legislature, to the President. This needs not to be explained, it is enough if they read Article 200. If the Governor wants he can read the entire Constitution or specific proviso to read and read again. Like a teacher of UKG, who is the scholar of jurisprudence and present Chief Justice of India cannot be made to teach every governor in  India, to read Article 200.  

Every teacher of law, knows what are the Governor’s Powers over Bills? The Article 200 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”.

The Chief Justice said this law has already been settled by the top court in its November 10 judgment. If the Assembly re-passes the Bills, with or without amendments, the Governor has no choice left but to grant his assent to the Bills in the re-enacted form. The CJI explained again: “…Once the Assembly has re-passed the Bills, you [Governor] cannot say ‘now I will refer it to the President’. The first proviso’s last line is very clear. It says the Governor ‘shall not withhold assent’ to re-enacted Bills sent back to him for consent”.

For the benefit of any Governor, he should also read Article 201, which 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”.

Then, let us consider if any options are available for the Governor. (a) The Governor 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. (b) 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. (c) However, the Governor can also reserve the bill if (i) It is opposed to the Directive Principles of State Policy (DPSP), (ii) it is against the larger interest of the country: (iii) it is of grave national importance, (vi) it deals with compulsory acquisition of property under Article 31A of the Constitution.

There is another option is to withhold the assent, but this is not normally done by any Governor because it would be an extremely unpopular action.

Attorney-General R. Venkataramani, appearing for the Governor, said on 1st December, said that the Governor had “simply withheld assent” on November 13, explaining “he had not sent back the Bills, but had only communicated to the Assembly that he had refused consent to the Bills”. While arguing that point further, the Attorney General has questioned the CJI: “So, you are saying the Governor can just withhold consent and virtually kill the Bills?”

There is no fourth category of withholding consent and keeping it hanging. The Governor cannot keep the Bills hanging perennially. That means the Assembly’s re-passage of the Bills on November 18 was a futile exercise, senior advocates A.M. Singhvi and P. Wilson, for the State government, asked whether the Attorney General’s submissions implied that the Assembly had passed “a ghost” on November 18?

Now we have to resort to ADR, (alternative dispute resolution) not litigation on unconstitutional moves of the head of State, like mediation or negotiation with two important constitutional high officers.  The CJI urged the Governor to resolve the impasse with the Chief Minister, telling AG “so many things need to be resolved between the Chief Minister and the Governor. Please ask the Governor to engage with the Chief Minister… Let them sit down and discuss”.

Some important lessons for Governor

A simple reading the text of Article 200 explains that the Governor can withhold his assent, experts question whether he can do so only on the advice of the Council of Ministers, as the Constitution provides that the Governor can exercise his executive powers only on the advice of the Council of Ministers under Article 154. Why a Governor should be allowed to withhold assent when the Bill is passed by the Assembly.

If a constitutional functionary does not understand the issues with pending bills: The Governor’s failure to take a decision on the Bills passed by the legislature leads to a delay in decision-making, which affects the effective functioning of the state government. And when the Governor fails to decide on a Bill passed by the assembly, it delays the implementation of policies and laws also. Finally, the Governor, appointed by the Centre, can understand that only use his powers to delay or reject Bills passed by state assemblies for political reasons. It shows a sign of inefficiency and if he does not provide any reason for his decision, will be called ‘lack of accountability seriously violate the principles of transparency and accountability in governance’.

Learn from present CJI and first President

Learn from present CJI and first President

On this day, today Advocates’ Day, the birthday of Dr. Rajendra Prasad, a great lawyer who headed the Constitutional Assembly, good advocacy was proved and the Constitution was upheld with the interference of the CJI.  

Let us celebrate this #AdvocatesDay and discuss the clients not just about their legal fraternity. They should believe in a fraternity of people, not just lawyers. 

Dr Rajendra Prasad is a follower of Mahatma Gandhi, a very active independence fighter, lawyer, scholar, and then the first President of India, in office from 1950 to 1962. His birth anniversary of Rajendra Prasad (3 December 1884 – 28 February 1963). 

PIB Photo: B.R. Ambedkar who spearheaded the drafting of the Indian Constitution, was an admirable jurist, reformer and intellectual. Here he is seen with Jawaharlal Nehru.

Advocates have been instrumental in spearheading movements in the society for a positive change. In modern times lawyers in various countries have given leadership to their nations. In the great American and French Revolutions many of the leading figures were lawyers. Abraham Lincoln, the great American President during the American Civil War was a lawyer, and so was Robespierre, the great French leader during the French Revolution, Lenin, the great leader of the Russian Revolution of 1917 was a student of law. Prominent freedom fighters belonged to the legal fraternity and played a leading part in the framing of our Constitution. Gandhiji, Pandit Nehru, Dr. Ambedkar, Alladi Krishnaswami Iyer, and K.M. Munshi to mention just a few. Lawyers gave up their practice to join the freedom movement and many of them went to jail.

Rajendra Prasad was imprisoned during the Salt Satyagraha of 1931 and the Quit India movement of 1942. After the 1946 elections, Prasad served as an important Minister in the central government. In 1947, Prasad was elected as President of the Constituent Assembly of India, which prepared the Constitution of India and served as its provisional parliament. Prasad was elected its first president by the Constituent Assembly. Although a ceremonial head of state, Prasad encouraged the development of education in India and advised the Nehru government on several occasions. 

In 1957, Prasad was re-elected to the presidency, becoming the only president to serve two full terms. He died on 28 February 1963, aged 78. He was awarded the Bharat Ratna, the nation’s highest civilian award. All the collective of lawyers should work to save rule of law. We need to remember heroes of the Constitution:

Wikimedia Commons: British prime minister Ramsay MacDonald to the right of Mahatma Gandhi at the Second Round Table Conference in London, October 1931. Fourth from the left in the foreground is Dr. B. R. Ambedkar, representative of the “Depressed Classes.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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