'If Governor Feels Bills Are Repugnant, Should He Not Tell Govt Immediately?' : Supreme Court Asks In Tamil Nadu Case

The Supreme Court on Friday (February 7) asked if the Tamil Nadu Governor could simply sit over the bills passed by the Assembly based on his own perception that they were repugnant to the Central laws, without communicating his opinion to the Government.

The Court asked if it was not incumbent on the Governor to return the bills to the Assembly as soon as possible, in terms of the first proviso to Article 200 of the Constitution, if he felt that they were repugnant.

The Court also observed during the hearing that an "impasse" has been created as the President has also returned the bills saying that they are repugnant. It said that the Court will go into the factual question if the bills were repugnant and decide it, if need arose.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan was hearing the writ petitions filed by the State Government in 2023 aggrieved by the Governor's refusal to grant assent for twelve bills, the oldest among them pending since January 2020.

After the bills remained pending for several years, on November 13, 2023, the Governor declared that he was withholding assent on ten bills. Following that, the Tamil Nadu Legislative Assembly convened a special session and re-enacted the very same bills on November 18, 2023. On November 28, some Bills were referred to the President.

So far, four lawyers have made their arguments on behalf of the State. To summarise, the Court yesterday formulated 8 questions and sought the assistance of both parties on it.

As per the petitioners' arguments, the Governor has three options under Article 200 when the Bill is sent to him: assent, reserve for reconsideration of the President and withhold the assent. 

The State argued that if the Governor reserves it for the President's reconsideration, he has to do so at the first instance. However, if he does not exercise that, the next recourse is to send the Bill to the State legislature. Here, it was argued that as per the Punjab Governor's decision(which was pronounced at a time when the Tamil Nadu Governor decided to send the re-enacted Bills to the President), if the Governor was withholding the assent, then he should return the bills to the assembly.

If the Governor feels the bill is repugnant, should he not tell the Govt?

As against this, the Attorney General of India R. Venkataramani has argued that when the Governor 'communicated' that he had withheld the assent, he did not do so for the State legislature to re-enact the Bills and then came to the Governor claiming that he is bound to give assent.

He submitted a file relating to the exchange that has taken place between the Governor and the Government. This was after the Court orally remarked that the Governor seemed to have "adopted his own procedure" in withholding the assent and then when the Bills were re-enacted, he sent it to the President. The Court had asked the Attorney General that it wanted to see what weighed with the Governor when he decided to send it to the President.

Explaining the arguments further, the Attorney General submitted that the Governor has four options under Article 200. 

He said: "When the State Government introduces a Bill before the legislative assembly and presents it to the Governor for his assent, and the Governor withholds the assent...the Bill in question falls. This means the Bill ceases to exist. In such a case, it is not required on the part of the Governor to go through the process of the first proviso(return the bill to the House). The Government on its own cannot also go through the first proviso(to re-enact the bills) and as a matter of fact because the Governor has not sent the Bill for reconsideration. What happened in this case? The Government on their own went through the first proviso and called upon the Governor to give his assent.

The first proviso to Article 200 is a further course of action besides the other three, namely giving assent, withholding assent and reserving the Bill straightway for consideration. It's more appropriate to say the first proviso can be invoked by the Governor when the reason, other than repugnance, the Governor may present to the Government several propositions in relation to the Bill."

He added that when there is a "perceived repugnance", which both parties are aware of, the Governor is not bound to "write an essay" on repugnance and communicate it back to the State Legislature. He can simply send it to the President.

Attorney General said: "On the contrary, when the Bill suffers from repugnancy, the Governor need not necessarily and may not be even obligated to first proviso. The occasion for invoking first proviso will depend on the feature of the Bill in question. No straightway jacket formula can be set to tie the hands of the Governor towards proceedings under first proviso."

However, Justice Pardiwala asked if the Governor is not obliged to inform the Government about repugnance. He said: "We want you to elaborate on this, when the Governor felt it suffers from repugnancy, that it will not fall within the ambit of changes, amendments etc. So, we have a query. If the Governor is prima facie of the view that Bill suffers from repugnance, should it not bring it to the notice of the State Government? How is the Government expected to know what is in the mind of the Governor? If repugnancy is something that troubled the Governor, the Governor should have immediately brought it to the notice of the Government and the Government could have reconsidered the Bills. If they found repugnancy, in fact, they might have even corrected it. But to say, Mr. Attorney, that because within the bracket of repugnancy, the first proviso has no application?"

He added that repugnancy is undoubtedly an important consideration for the Governor when he decides to withhold the assent. He added: "But to say, the moment the Governor finds that this suffers from repugnancy, there is no question of referring it to the State Government for reconsideration, then what next?"

Venkataramani responded that that's when the "factual dimension" of the case comes into play.

Justice Pardiwala further inquired what next the President should have taken in terms of proviso to Article 201 which reads: "Provided that where Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the House of the State together with such a message as is mentioned in the first proviso to Article 200,.."

Justice Pardiwala said: "Article 200 nowhere says 'I decline to grant assent'... It says 'withhold the assent'. Why withhold the assent? You noticed repugnancy, bring it to the notice of the State Government. Look at it, reconsider." 

Will Bills become repugnant if they remove Governor as Chancellor?

Venkataramani also brought it to the notice to the Court that in relation to the Vice-Chancellor matter, the Government was predetermined to replace the Governor contrary to the University Grant Commission's Regulation. He added that the Governor had directed the State to constitute a search-cum-selection Committee under his authority but that "fell on deaf ears".

"Repugnancy was also in the air. It was not something the Governor discovered when the Bills were sent to him," said the Attorney General.

Justice Pardiwala questioned: "They have not kept UGC Regulations in mind, will there be repugnancy?"

Venkataramani responded: "That is the understanding of the Governor."

However, this did not sit well with the Court and Justice Pardiwala again asked for a clarification: "Is this the understanding of the Governor? If the Bills overlook the UGC Regulations and have deprived me of my power, that will be repugnancy?" 

What must be communicated when withholding assent? 

The Court stated that if it's assumed that the law was repugnant to the central law, and it was sent to the President, what was the President expected to do? 

Justice Pardiwala: "How do you expect the State Government to overcome repugnancy?...If you create the impasse, you have to clear the impasse. But who will clear the impasse? There cannot be absolute deadlock."

Attorney General submitted that the Governor had already communicated to the State Government that the laws were repugnant. 

"Where is the communication?" Justice Pardiwala

"There is a lot of communication, such as where the Governor says- please constitute search-cum-selection committee...it does not happen. The State Government is not to be taken for surprise when one fine morning the Governor says, it's repugnant. The State Government is pre-determined that we will not want Chancellor to be a part of any university...That is why, at some point, the Governor finds that he should not be faulted by sitting over for a long period and considering the national interest therefore, sends it to President. Every though process of the Governor will be put on a mat and say, look here, you are acting malafide?," said Attorney General 

On the word 'message' (communication) used in Articles 200 and 201, yesterday, it was argued by Senior Advocate Rakesh Dwivedi that the Governor has to apply his mind and disclose the reasons for sending the Bill back to the House. 

The Court today inquired what route under Article 201 is followed when the President withholds his assent and sends it to the Governor saying he must communicate it to the House with the message.

Attorney General submitted that when the President decides to withhold the assent, as was communicated by the President in this case, it means the law is repugnant. On this, Justice Pardiwala again stated that the President has withheld the assent in this case, he has not stated anything otherwise on the Bills. He said: "You have brought around a situation where you want us to say something about repugnance also for once and all and not leave for any citizen of the State to challenge? This particular Act enacted by the State is repugnant to it. If we have to accept this argument, we will have to say something-whether this is repugnant or not. If we have to enter into this arena, we will and we will record our findings." 

However, the Attorney General responded that withholding the assent means declining assent 

Justice Pardiwala inquired if this interpretation would be Article 200 opaque. He said: "Is that interpretation correct? You are making the entire provision opaque."

Time period 

As per for the time period in which the Governor is supposed to send the Bills to the House or exercise any of the options, the Attorney General argued that Article 200 does not specify a timeframe. It has been argued by the petitioners that 'as soon as possible' has to be understood as a reasonable time. 

Senior Advocate Abhishek Manu Singhvi had yesterday referred to the 2021 Keisham Meghachandra Singh judgment in which a three-judge bench held that the reasonable time in which the Speaker should decide disqualification petitions under the Tenth Schedule is three months. Today, Justice Pardiwala asked for the citation of this judgment.

It should be noted that Dwivedi took exception to the note read by the Attorney General on the various aspects argued today. He submitted that these statements were not a part of the original files and is now filed as an "afterthoughts".

The hearing will continue on Monday.

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023