'How Could Governor Send Re-passed Bills To President?' : Supreme Court Reserves Judgment On Tamil Nadu Govt Plea

The Supreme Court today(February 10) reserved judgment on the writ petitions filed by the Tamil Nadu Government against its Governor Dr RN Ravi withholding assent for 12 bills, the oldest of them pending since January 2020. Once the Bills were re-enacted in a special session by the Government, the Governor sent some of the re-passed laws to the President for reconsideration. 

Various constitutional issues concerning the interpretation of Article 200 and factual questions have emerged from the four days of the hearing. A bench of Justices JB Pardiwala and R. Mahadevan has formulated eight questions for the parties, including some additional questions which were given today. To briefly summarise, the petitioners have argued that the action of the Governor sitting over the Bills for 3 years and then one fine day, declaring that he is withholding assent and when the Bills are passed again, reserving it to the President are violative of Article 200. Therefore, the Governor's declaration is held to be void. Whereas, the Respondent submitted that what troubled the Governor was repugnancy with the central laws and nothing else and therefore, in the national interest, he sent it to the President. 

On withholding assent

To summarise, the petitioners have interpreted Article 200 to three options: assent, withhold assent and reserve it for Presidential assent. As per them, the option of withholding the assent has to be read with the first proviso to Article 200, that is, the Bills are sent to the assembly for reconsideration. Reliance has been put on the Punjab Governor's decision which was pronounced on November 10, 2023, when this present matter was before the Court. In fact, in one of the hearings, the Court had observed that the Governor's declaration regarding withholding of assent came soon after the judgment in the Punjab case.

Whereas, Attorney General for India R. Venkataramani has argued that the Governor has four options: assent, withhold the assent, reserve it for Presidential assent and send it back to the assembly. He has submitted that in the present case, the Governor sent it back to the assembly with a declaration that he is withholding assent and not for re-consideration.

A factual question that was contemplated by the Court was whether the bills were returned to the Assembly or the Governor simply communicated that he was withholding assent. It has been informed by Senior Advocate Rakesh Dwivedi that the files which contained the Bills were sent to the House and there was no ad idem as to whether the Governor was returning the Bill to the house or not. 

On referring it to President 

It was argued by Senior Advocate Abhishek Manu Singhvi that the option of reserving it for the President has to be exercised as the first option. Once that option is not exercised, the Governor cannot send it to the President. Senior Advocate Mukul Rohatgi argued that the Governor can reserve the Bill for the President in the second round only if the Bills relate to taking the powers of the High Court as contemplated in the last proviso to Article 200.

As against this, the Attorney General has stated that the Governor has the discretion to send it to the President even after the Bills were re-enacted because the Bills were repugnant. Once the bills were with the President, Article 254 came in and the Bills ceased to exist. 

Today, Dwivedi referred to the history of Article 200. He referred to Section 75 (assent to Bills) of the Government of India Act, 1935, and remarked that the provision expressly uses the word 'discretion' in the context of the power exercised by the Governor. Adding to this, he also stated that keeping in mind federalism and supremacy of the Parliamentary democracy, it was a deliberate attempt on the part of the Constitution framers to take away any discretion from the Governor. 

From there, he referred to the Constituent Assembly debate and draft Article 175 where the words 'discretion' were not retained. 

The amendment to the draft Article 175(Article 200) was moved by Dr. B.R. Ambedkar, who said: "Sir, this is in substitution of the old proviso. The old proviso contained three important provisions. The first was that it conferred power on the Governor to return a Bill before assent to the Legislature and recommend certain specific points for consideration. The proviso as it stood left the matter of returning the Bill to the discretion of himself. Secondly, the right to return the Bill with the recommendation was applicable to all Bills including money Bills.

Thirdly, the right was given to the Governor to return the Bill only in those cases where the Legislature of a province was unicameral. It was felt then that in a responsible government there can be no room for the Governor acting on discretion. Therefore the new proviso deletes the word ' In his discretion.' Similarly it is felt that this right to return the Bill should not be extended to a money Bill and consequently the words 'if it is not a money Bill' are introduced. It is also felt that this right of a Governor to return ;the Bill to the Legislature need not necessarily be confined to cases where the Legislature of the province is unicameral. It is a salutary provision and may be made;use of in all case even where the Legislature of a province is bicameral."

What happens when the Governor withholds the Bills 

The Court had asked the Attorney General as to what happens when the Governor withheld the assent but did not return the bill to the house in exercise of the powers under the first proviso. In response, Venkataramani stated that the Bill falls. However, then Justice Pardiwala questioned that if Bills have fallen, how can the fallen Bills be sent to the President? He said: "How do you forward the fallen Bills to the President?"

The Attorney General argued that in the absence of any express provision precluding the Governor's reference to the President, the Governor can very well send it to the President. 

Again, the Court verified the dates on which the Governor withheld assent, that is November 13, 2023. After which, on November 18, the Bills were passed again and on November 28, the Governor sent the Bills to the President. 

Justice Pardiwala questioned how reenacted Bills were sent to the President: "If the Bills came to the Government with an endorsement that he is withholding, what was sent to the President? How could you send the repassed Bill to the President, Mr Attorney?"

Communication

The issue of communication has arisen both as a factual as well as constitutional question. Article 200 uses the words 'message' in the first proviso. It has been argued by Dwivedi that the Governor has to apply his mind and disclose the reasons why he is sending the Bills for reconsideration. Whereas, the Attorney General has maintained that the Governor was not obliged to, in this case specifically, because there was repugnancy which the Government was aware of in terms of the communication which have taken place between them. 

The communication apparently refers to the Governor asking the Government to constitute a search-cum-selection committee under his authority as the ex-officio Chancellor of the universities to appoint the Vice Chancellor and the Government did not agree to it. 

Aid and advice

Dwivedi has submitted that the act of the Governor in delaying and withholding its assent and then referring it to the President was without the aid and advice of the Council of Ministers and therefore, unconstitutional. Taking a cue from Article 111, he stated that the President, whenever he gives assent, does do so in the 'aid and advice' of the Union Cabinet as per Article 74. Therefore, the constitutional interpretation has to be much that the Governor is also obliged to act in the aid and advice of the Council of Ministers. 

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

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Reports of previous hearings :

'TN Governor Seems To Have Adopted His Own Procedure' : Supreme Court Questions Governor RN Ravi For Withholding Bills

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