Governor Can Reserve Bill Passed Again By Assembly For President's Assent : Supreme Court In Presidential Reference

In the opinion given in the Presidential Reference, the Supreme Court held that the Governor has the option of reserving a Bill, which has been re-enacted by the Legislature after being returned by the Governor in the first instance, for the President's assent.

The Court said that the restriction as per the first proviso of Article 200 of the Constitution is on the Governor withholding the assent for a re-passed Bill. However, the option of reserving the Bill for the President's assent is not closed even after the Bill is returned by the Assembly.

The 5-judge bench led by Chief Justice of India BR Gavai observed :

"The text of the first proviso to Article 200 through its phrasing “shall not withhold assent therefrom” clearly indicates that what was sought to be curtailed among the three options, was only the option to 'withhold'. We have already held that the first proviso conditions the verb 'withhold', to mean withhold and return to the Legislature. The first proviso cannot be read in a manner so as to condition the option of the Governor to reserve the Bill for President's consideration as well. Therefore, when the Bill is returned to the Governor, he is still left with two options – either to grant his assent, or to refer it to the President for his consideration. This power to reserve a Bill for the President's consideration, is irrespective of whether the Bill is returned by the Legislature in its amended or unamended form."

The Court observed that this is a safeguard against the Legislature inserting amendments in the returned Bill. "Since it is the Governor who considers the Bill in its amended form, and is able to compare it to the earlier version passed by the Legislature, it is his constitutional function to decide whether the Bill ought to be assented to, or if its amended form affects such inter-state, or federal aspect of the country, requiring the attention of the President," the Court said.

The Court held that the argument advanced by those opposing the reference - that once the Legislature sends the Bill back, the Governor has no choice except to give assent - is inconsistent with the text of Article 200. Such a reading also conflicts with the second proviso, which specifically allows reservation for the President when a Bill may impact the powers or functioning of the High Court. Recognising that the Governor retains both choices,either to grant assent or to reserve the Bill for the President,even at the second stage enhances the Constitution's intended process of dialogue and consultation rather than diminishing it.

The argument that a Bill can be returned only once, as under the proviso to Article 201, was also found to be flawed. Article 200 and Article 201 are not identical: Article 201 does not contain the phrase “shall not withhold assent,” and Article 201 imposes a six-month limit on the Legislature to reconsider the Bill, whereas Article 200 does not. These differences show that the Governor's return of a Bill under Article 200 and the President's return under Article 201 operate differently, both in terms of the institutions involved and the consequences for the Legislature.

It may be recalled that this was one of the issues in the Tamil Nadu Governor case, where the Governor referred the Bills which were re-enacted by the Assembly. In that case, the two-judge bench had held that the Governor cannot refer the Bills returned by the Assembly in the second round. The 5-judge bench has departed from that view.

The opinion was rendered by a bench comprising CJI BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar answering the reference was by the President under Article 143 raising 14 queries. The reference was made in the aftermath of the Tamil Nadu Governor case.

Other reports from the judgment :