A five-judge constitution bench of the Supreme Court on Wednesday questioned the Centre about the unbridled power given to governors to withhold bills passed by state legislatures, which leaves an elected government “at the whims” of a titular head.
The bench posed the question to solicitor-general Tushar Mehta, appearing for the Centre, who argued that governors were not “postmen” but “seasoned politicians” who enjoyed certain discretionary powers that the courts should not interfere with.
Any apprehension regarding the misuse of such powers can be rectified only by Parliament, Mehta argued.
The submissions were made before a bench of Chief Justice of India B.R. Gavai and Justices Surya Kant, Vikram Nath, P.S. Narasimha and A.S. Chandurkar. It was hearing for the second consecutive day the reference made by President Droupadi Murmu on the question whether the Supreme Court and the high courts had the power to fix timelines for governors or the President for clearing bills passed by Assemblies.
Murmu had made the reference in the wake of an April 8 judgment passed by the Supreme Court that neither the President nor the governor had any “pocket veto power” to indefinitely withhold bills passed by a state legislature, as it prescribed timelines of three months and one month for the two constitutional authorities.
Failure to adhere to the prescribed timelines would give the right to the aggrieved state to either move the high court concerned or the Supreme Court, a bench of Justices J.B. Pardiwala and R. Mahadevan had said. The court had also ordered “deemed” assent to 10 bills passed by the Tamil Nadu Assembly with effect from November 18, 2023, when they had been presented to governor R.N. Ravi a second time after heeding his initial call for reconsideration.
Responding to Mehta’s argument about the discretionary powers of governors, CJI Gavai said: “Then are we not giving total powers to the governor, in which case the government elected by majority will be at the whims of the governor.”
Mehta argued that the appointment of governors was “not an asylum for retired politicians”.
The solicitor-general quoted B.R Ambedkar as saying in a Constituent Assembly debate: “Now, speaking for myself, I have no doubt in my mind that the retention in or the vesting of the governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government.”
The CJI countered Mehta’s argument, saying: “Dr Ambedkar had also replied that discretion can be exercised by the governor only as provided by the Constitution specifically.”
Mehta submitted that under Articles 200/201 of the Constitution, the governor enjoyed four options: give assent, withhold assent, ask the legislature to reconsider or reserve the bill for consideration of the President. He argued that there was no fixed time limit for the withholding of bills by the governor, and the bill “dies” if he chose to withhold assent.
“Suppose a border state passes legislation dealing with national security, he can’t assent or refer to the President or return to the House for reconsideration because then he is bound. Here, he will have to withhold it. It (such discretionary power) has to be used rarely or sparingly,” Mehta said.
CJI Gavai remarked: “…He will withhold it for time immemorial!”
“It (bill) dies,” Mehta replied.
“He (governor) is not a postman. He represents the government of India and is appointed by the President. The President acts on the aid and advice of the council of ministers, which is responsible to the entire Parliament,” Mehta argued.