Why is it in the news?
- The Supreme Court has expressed serious concern about what it calls a “constitutional deadlock” resulting from Governors’ prolonged delays in assenting to Bills passed by state legislatures.
- This issue has particularly emerged in states where the ruling party in the state legislature is in opposition to the Governor’s party, leading to political and governance conflicts.
The Assent Process
- According to the Constitution of India, for a Bill passed by a state legislature to become a law, it must receive the assent of the Governor.
- There is an exception for Money Bills, which are automatically considered to have the Governor’s assent.
- When a Bill is passed by both houses of the state legislature (the Legislative Assembly and the Legislative Council, if applicable) and is presented to the Governor, the Governor has four options:
- To give assent to the Bill, which means it becomes law.
- To withhold assent, effectively vetoing the Bill.
- To return the Bill to the Legislative Assembly for reconsideration, with or without recommendations.
- To reserve the Bill for the consideration of the President of India.
Lack of Timelines
- The Constitution does not prescribe any specific timeline within which Governors must make a decision on a Bill presented to them.
- This lack of a clear timeline has led to potential misuse, where Governors may delay making a decision on Bills, effectively delaying their enactment.
- This manoeuvre of delaying legislation through inaction by Governors is often referred to as a “pocket veto.”
Efforts to Curb Misuse
- In response to these concerns, various efforts have been made to curb the potential misuse of gubernatorial powers.
- For example, in 2022, a Private Member Bill was introduced in Parliament, seeking to establish a time limit of two months for Governors to declare whether they assent to or withhold assent for a Bill. Additionally, it proposed a one-month period for Governors to return the Bill to the state legislative houses for reconsideration.
- Article 361 of the Indian Constitution grants immunity to Governors and Presidents from court proceedings for acts done in the exercise of their powers.
- However, this immunity is not absolute. If the grounds for a Governor’s refusal to give assent to a Bill are found to be mala fide (in bad faith) or ultra vires (beyond their legal authority), the Governor’s action can be subjected to judicial scrutiny.
- The Supreme Court has previously held, in the case of Rameshwar Prasad v. Union Of India (2006), that the immunity granted by Article 361(1) does not take away the power of the Court to examine the validity of the action, including on the ground of mala fides.
Supreme Court’s Caution
- The Supreme Court has repeatedly cautioned Governors against indefinitely withholding assent to Bills.
- The Court emphasizes that such actions subvert the federal structure and governance processes, as the Governor is intended to be a titular head who acts on the aid and advice of the council of ministers.
- The Court has highlighted that real power in a parliamentary form of democracy lies with the elected representatives of the people, not with the Governor.
What Constitutional Experts says
- Constitutional experts argue that withholding assent by the Governor effectively neutralizes the legislative exercise conducted by an elected legislature that represents the will of the people.
- They contend that such an option is undemocratic and goes against the principles of federalism, where states have a degree of autonomy in lawmaking.
- These experts also stress that while the Constitution does not fix a specific timeline for Governors to decide on assent, this does not mean that Governors are entitled to indefinitely delay Bills. They argue that the purpose of providing options to the Governor is for them to make a decision within a reasonable timeframe, and unreasonable delays are unsustainable in the eyes of the law.