Governor Can't Simply Withhold Bill Without Returning It To Assembly; Allowing It Against Federalism : Supreme Court In Presidential Reference

In its opinion in the Presidential Reference, the Supreme Court has held that a Governor cannot indefinitely withhold assent to a Bill without returning it to the State Legislature. The Court ruled that such a “simpliciter” power to withhold assent does not exist under Article 200 and that any interpretation enabling a Governor to stall legislation through inaction would run contrary to constitutional principles.

The Court examined the structure of Article 200 and concluded that the Governor is constitutionally permitted only three options when a Bill is presented: to assent, to reserve it for the President, or to withhold assent by returning the Bill to the Legislature with comments(except in the case of a Money Bill, which he cannot return). A reading that treats “withholding assent” as an independent power allowing the Governor to let a Bill fall through was expressly rejected.

If it is held that the Governor can simply withhold a Bill, then it would mean that even a Money Bill can be stalled, the Court noted.

"There is significant reason why there cannot exist a simpliciter power of withholding, dehors the mandate to return the Bill to the House with comments. The first proviso disentitles the Governor from returning the Bill to the House in case it is a Money Bill. Therefore, in case of a Money Bill the Governor's option is limited to either assenting to the Bill or reserving it to the President. However, if the option to withhold a Bill simpliciter is read into the substantive part of Article 200, then, even a Money Bill can be withheld simpliciter, which reading, in our opinion, defies constitutional logic," the Court noted.

Governor has only three options - no fourth option

The Union Government argued that the returning of the Bill to the Assembly is an additional fourth option available to the Governor, since this step is mentioned only in the first proviso to Article 200. The substantive provision of Article 200 mentions three options: asset, withhold, or reserve for President.

The Bench preferred an interpretation that binds the first proviso to the main text of Article 200, thereby limiting the Governor's options. Under this view, if the Governor chooses to withhold assent, he must return the Bill to the Legislature with comments for reconsideration. Once the Legislature passes the Bill again, with or without amendments, the Governor “shall not withhold assent therefrom”.

Calling the contrary interpretation “against the principle of federalism”, the Court emphasised that allowing Governors to indefinitely withhold Bills would amount to a derogation of the powers of State legislatures. The first proviso to Article 200, the Court held, mandates a dialogic process between the Governor and the Legislature, which is essential for maintaining the cooperative spirit of Indian federalism.

The Court said that if if two interpretations are possible, then an interpretation that favors a dialogic process, which encourages institutional comity and deliberation between constitutional institutions – in this case that of the Governor and the House(s) – must be preferred over an interpretation that limits or eschews such a dialogue.

 "For the reasons indicated hereinbelow, this Court is of the opinion that the latter interpretation of Article 200 is aligned with the constitutional ethos, constitutional structure and is to be preferred over an interpretation that empowers the Governor to withhold a Bill simpliciter," the 5-judge bench stated.

Allowing Governor to simply withhold Bill will defeat federal principle

The Court warned that allowing the Governor to simply withhold the Bill, without returning it to the Assembly, will negate the principles of federalism. Referring to a catena of precedents which hold that federalism as a basic structure of the Constitution, the Court observed,"it would be against the principle of federalism and a derogation of the powers of the State legislatures, to permit the Governor to withhold a Bill without following the dialogic process in the first proviso to Article 200."

"In our opinion, the first proviso initiating a constitutional conversation between the institution of the Governor and the House (or Houses), and the option to reserve the Bill for the consideration of the President under the substantive part of Article 200, exemplify the cooperative spirit of Indian federalism, and also bring out different facets of the checks-and-balances model that the Constitution has envisaged. We are accustomed to the traditional view of checks-and-balances, where the decision taken by one institution or branch is set at naught by the other. In our considered opinion, this understanding must give way to a more nuanced one. A dialogic process, which has the potential to understand and reflect on conflicting or opposing perspectives, to reconcile and to move forward in a constructive manner, is an equally potent check-and-balance system that the Constitution has prescribed. Once this perspective is grasped, the persons who occupy various constitutional offices or institutions will also do well to ingrain in themselves that dialogue, reconciliation and balance, and not obstructionism is the essence of constitutionalism that we practice in this Republic," stated the Court.