SC Cautions Against Bill Assent Delays, Leaves Reform To Parliament

While studying the Indian Constitution with explanations of its various provisions provided by scholars and jurists, one phrase is often encountered: India is a Federation of States with a strong unitary bias.

Constitutional experts differ on the correctness of this interpretation, while politicians – depending on whether they rule at the centre or in the states – either favour a strong union or strong states.

Seventy-five years after the Constitution was adopted, it is difficult to say with certainty whether, through the gubernatorial system, the founding fathers intended to ensure that the elected state governments should adhere strictly to the Statute.

However, looking at the Constitution as a whole and its clear inclination towards democratic principles in governance, it does not seem likely that the framers of the Consrtitution foresaw that the Governor, a non-elected person appointed by the Union Government, could be used, rather misused by future rulers, to either impose the Centre’s dictates on the states or to impede the constitutional duties and responsibilities of the state governments towards the electorate.

The Supreme Court’s recent response to the reference made to it by the President of India on whether, in the Constitutional scheme of things, there is any time limit within which either the President of India or the Governors in different states must decide on whether to sign Bills passed by the Parliament or the state legislatures, return them to the House for reconsideration, or keep them pending without taking either of these two actions, has not put the matter to rest.

The top Court’s answers to the queries raised may be summarised as follows:

• That the Constitution, as it exists today, does not prescribe any fixed time limit within which the President or the Governors must act on bills passed by the Parliament or the state legislatures. The phrase "as soon as possible" in Article 200 implies flexibility, not a rigid, judicially mandated deadline. Imposing fixed timelines in these cases is outside the Court’s domain.
• Governors and the President cannot indefinitely sit on bills. Such inaction thwarts the will of the people expressed through the legislature and is subject to judicial scrutiny. In cases of inordinate delay, courts can request the functionaries to decide within a reasonable time.
• The judiciary cannot usurp the constitutional functions of the Governor or the President and create a legal fiction "deemed assent" for pending bills. That would violate the doctrine of separation of powers
• A Governor has the discretion when deciding on a bill, which means they are not bound by the aid and advice of the Council of Ministers in this specific function. Their options are to grant assent, withhold assent and return the bill to the Assembly for reconsideration, or reserve it for the President's consideration.
• Courts cannot review the merits or "wisdom" of the Governor's or President's decision itself, and judicial review of the contents of a bill is possible only after it becomes an Act.

Whatever be the intent of the framers of the Constitution when they decided that every state would have a Governor appointed by the central government, it is undeniable that since independence, the Governors have acted as a mellowed-down version of the British Viceroys in the pre-independence days.

The state governments were under the perpetual threat that the Governor might, on flimsy grounds, report to the Centre under Article 356 about a perceived breakdown of the constitutional machinery in the state and recommend imposition of President’s rule. The Governors would even decline to discharge their functions under the advice of the state Cabinet of Ministers.

The Supreme Court held in the Shamsher Singh vs Punjab, 1974 judgement that the Governor must function under the aid and advice of the state Council of Ministers (except in certain constitutionally specified discretionary matters). Again, the wanton use of Article 356 by the Governors stopped only after the Supreme Court judgment in the S.R. Bommai v. Union of India (1994) pronounced: (a) Presidential Proclamations under Article 356 were open to judicial review; (b) A floor test of majority in the Assembly, and not the Governor’s subjective assessment would be the norm; (c) the state Assembly cannot be dissolved before parliamentary approval of the Proclamation- it can only be suspended; and (d) Courts can reinstate a dismissed state government and revive the assembly if a Proclamation is found unconstitutional.

The latest advice tendered by the Supreme Court has reiterated the constitutional provisions on the subject and upheld the principle of separation of powers. It has not delved into the desirability of specifying a time limit within which the President and Governors should act on Bills sent to them for their approval.

Although the Supreme Court has said that it would not be proper for the constitutional functionaries to sit on Bills for an indefinite period, in the absence of a legal definition of how much time lapse would be considered “indefinite,” this part of the advice is more of a suggestion. It entirely depends upon the executive to listen to the Court’s counsel.

An aggrieved state government, faced with a situation where the governor neither gives assent to nor returns bills passed by the state legislature, may approach the Supreme Court. However, at best, the Court can urge the concerned functionary to expedite the matter, who will still have the discretion to ignore such a nudge. Thus, the problem faced by the states, viz., of bills stalled by governors, especially those ruled by opposition parties, will persist.

A comparison with some democracies is instructive. In Australia, Canada, and the UK, the Governor or monarch rarely delays assent. Strong conventions and the high political costs of antagonising an enlightened and vigilant public bind the head of state firmly to government advice. In the United States, where conventions are weak, the Constitution lays down explicit timelines.

India, however, is in a grey zone of conventions that are already few and far between, have weakened further in the past few decades, and no timelines exist. The result is a void easily exploited in bitter Centre-State rivalries. The Supreme Court’s response to the President’s reference does little to alter this reality.

The Supreme Court’s response, however, has two significant implications. First, it places constitutional morality back at the centre of federal functioning. Governors can no longer enjoy unrestrained discretion. Any unreasonable delay is now judicially challengeable, and several States may well head to court the next time a Bill is held back without action.

Second, it quietly suggests that Parliament may ponder upon the Governor’s role as provided in the Constitution and decide to what extent it is compatible with a federal set-up. If the political class wants strict time limits, it must amend the Constitution—or at least establish conventions, as other democracies have done.

Put simply, the Supreme Court has reminded the political class that while the problem is real, its resolution lies in the political arena, not the courtroom. What remains to be seen is whether India’s political system accepts the invitation—or leaves the grey zone intact.

Sandip Mitra retired from the Indian Foreign Service. The views expressed here are the writer’s own.