LAW COMMISSION OF KARNATAKA TWENTY SECOND REPORT …

LAW COMMISSION OF KARNATAKA

TWENTY SECOND REPORT

Assent to Bills – Problems of Delay

(Articles 200 & 201 of the

Constitution of India)

Government of Karnataka, Ministry of Law

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Dr. Justice V.S. Malimath,

Chairman

Mr. Justice S.R. Venkatesha Murthy,

Member

Sri. B.A. Muchandi,

Member Secretary

Ex-Officio Members

Sri. S. Vijay Shankar,

Advocate General of Karnataka.

Sri. K.N. Phaneendra

Principal Law Secretary,

Government of Karnataka.

Sri. H.M. Bharatesh,

Principal Secretary,

Karnataka Legislative Assembly/Council.

Dr. K.M. Hanumantharayappa,

Dean, Faculty of Law,

Bangalore University.

Sri. G.K. Boregowda,

Secretary, Parliamentary Affairs,

Government of Karnataka.

Sri. G. Dakshinamoorthy,

Director, KILPAR


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No. 302, III Floor, Vidhana Soudha, Bangalore-560 001

Telephone No. 080-22033882 – Telefax No. 080-22200637

TWENTY SECOND REPORT


(Articles 200 & 201 of the Constitution of India)


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Twenty Second Report

07.07.2012


(Articles 200 & 201 of the Constitution of India)

I. JUSTIFICATION FOR THE STATE LAW COMMISSION

TO ADDRESS THE ISSUE RELATING TO GRANT OF

ASSENT UNDER ARTICLES 200 & 201:

The need and justification for the State Law Commission to take

up this issue of delay in the matter of granting assent to legislation even

though it would involve constitutional amendments are not far to seek.

In our constitutional scheme assent by the Governor is an essential pre-

requisite for any Bill to become law. Assent is part of the legislative

procedure as is clear from Chapter II of Part V and Chapter III of Part

VI of the Constitution. The policies and programmes of a democratically

elected Government find expression in legislation which are brought to

fruition only on receiving assent. Without assent the Bill passed by the

Legislature remains a sonnet writ on water and the Government’s

programmes would remain illusory. Hence the importance of assent.

2. It is the States which are hurt by assent being delayed or

withheld. The Governors many a time withhold assent or delay its grant

or reserve the legislation for the consideration of the President which

may also result in delay or denial of assent. The legislation validly

enacted by the legislature is thus held up. The object of every legislation

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is public good. That object is defeated by delay. Delay may also have

political implications for the party in power in the State. The founding

fathers of the Constitution trusted that the Governors would discharge

their responsibilities with utmost diligence and objectivity and grant

assent expeditiously. Unfortunately many of the Governors have not

justified the confidence reposed in them. The Union is not affected by

such delay or inaction. It is the interests of the State that are jeopardized.

Centre-State relations may also be adversely affected. The federal

principle which is one of the pillars of our constitutional policy is also

hit. The constitutional regime and ethos suffer a dent. It is significant to

mention that recently that the Union Home Minister has stated that 115

legislations from various States reserved for the President’s

consideration are pending. This demonstrates the seriousness of the

problem.

3. Enormous delay is being suffered since several decades in

the matter of according assent to the Bills forwarded to the Governor

under Article 200 of the Constitution and further delay when the

Governor forwards the Bill for the President’s assent under Article 201

of the Constitution. By such delay, fulfillment of laudable objectives

sought to be achieved by the legislation gets delayed or even be defeated.

By way of illustration we would like to invite attention to a few

instances. Karnataka Town & Country Planning and Certain Other

Laws (Amendment) Bill, 2009 was, after it was passed by the Karnataka

State Legislature, sent to the Governor on 24.7.2010 seeking his assent

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as required by Article 200 of the Constitution. More than two years

have elapsed and yet the Governor has not accorded his assent. Similar

problem is noticed in cases where the Governor reserves the Bill under

the proviso to Article 200 for consideration of the President on his

forming the opinion that when the Bill became law, it would derogate

from the powers of the High Court as to endanger the position which

that Court is designed to fill and also in cases covered by Article 254(2)

of the Constitution which provides that where a law made by the

Legislature of a State with respect to one of the matters enumerated in

the concurrent list contains any provision repugnant to the provisions of

an earlier law made by Parliament or an existing law with respect to that

matter. By way of illustration, we would like to invite attention to

Karnataka Education Act which was passed by the legislature in the year

1983 received President’s assent ten years later on 29.10.1993,

Karnataka Molasses Regulation Bill 2004 was sent to the President for

his assent on 3.11.2006. Even though more than five years and six

months have elapsed Assent of the President is still not given. There

have been several delays in many more cases. Delay in according assent

by the Governor or the President may virtually defeat the laudable

objectives sought to be achieved by the legislature. Supreme Court has

held that they have no jurisdiction to interfere in matters relating to grant

of assent to Bills. Therefore, the sovereign Legislatures of the States

can be neutralized by delay or denying assent making a mockery of

democracy. Therefore, it is high time that this problem is seriously

attended to and suitable solution found expeditiously.

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4. It is in this backdrop that the State Law Commission

decided to take-up the issue to examine all aspects thoroughly and find

out effective solutions.

II. INTRODUCTION :

Legislation is the expression of the will of the ultimate sovereign-

the people expressed through their elected representatives- the

legislatures. To the legislature, the legal sovereign which represents the

will of the people is committed the power and function of law making.

There is always the presumption that the Legislature knows, understands

and appreciates the needs of the people and its legislations are aimed at

fulfilling those needs and aspirations and directed towards problems

made manifest by experience. The Legislature is supposed to be the best

judge of what is good for the community by whose suffrage it comes

into existence. This theory has to be translated into practice and brought

to full fruition. Hence the imperative need to give full and expeditious

effect to laws made by the legislature.

III. KEY FEATURES OF A PARLIAMENTARY SYSTEM:

The Constitution envisages separation of powers among the three

organs of the State namely, legislature, executive and judiciary. Rule of

Law being the basic feature of our Constitution all the laudable

objectives set out in the Preamble have to be achieved through the

instrumentality of laws. Law making is the preserve of the legislature.

But it is not alone in this function. In the Parliamentary system of

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government which we have in India two political ideas lie at its heart-

representation and responsibility and they explain the basic institutional

structure of government. Representation is secured through popular

elections conducted on the basis of universal adult franchise.

Responsibility is ensured by a high degree of integration of the

legislature with the executive and by the doctrines of individual and

collective ministerial responsibility. There is no strict separation of

powers. Indeed there is a harmonious blending of the legislature and the

executive and a fusion of their powers and functions. The Cabinet is the

hyphen which joins, the buckle which fastens the legislative part to the

executive. All legislation (except a private Member’s Bill) emanates

from the government- the political executive which is responsible for

drafting and introducing legislation and piloting its successful passage in

the legislature. A Bill is drafted by the concerned Department/Ministry;

it is approved by the Cabinet and then introduced in the legislature by

the concerned Minister.

IV. LEGISLATIVE PROCESS – INTRODUCTION, PASSING,

ASSENT, PUBLICATION AND COMING INTO FORCE:

The journey of a legislation starts with the introduction of a Bill

which passes through different stages before it is passed by the

legislature. After a Bill is passed there are still various stages that it has

to pass through before it becomes a workable and enforceable law. In

the Indian context, Articles 107 to 111 (in the case of Parliament) and

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Articles 196 to 201 (in the case of State Legislature) deal with and

govern legislative procedure.

2. In the first place the Bill has to receive the assent of the

Governor or the President, as the case may be, for it to become an Act.

This is because the Governor is part of the State Legislature under

Article 168 and Articles 200 & 201 which deal with assent are part of

the constitutional scheme re: legislative procedure.

3. After the Bill receives assent it shall be duly published in

the official Gazette and in such other manner as may be prescribed.

4. There are many occasions when the legislature leaves it to

the executive to notify and bring an Act into force and sometimes

different dates are fixed for different provisions to be enforced.

5. Rules and Regulations have to be framed under an

enactment and authorities have to be constituted and appointed

thereunder to make the Act viable and workable.

6. Delay can occur at any or all of these stages for a variety

of reasons, attributable to different authorities. This may result in

negation of the sovereign will.

7. Each of these areas needs to be addressed and solutions

found.

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8. This report is limited to addressing the issue of delay in

according assent to Bills passed by the State Legislature.

RE: ASSENT TO BILLS

V. HEAD OF STATE - PART OF LEGISLATURE - ASSENT

NECESSARY TO MAKE LAW

The Governor is part of the legislature vide Article 168. For the

sake of convenience it is extracted below:-

“Article 168- Constitution of Legislatures in

States – “(1) - For every State there shall be a

Legislature which shall consist of the Governor, and

(a) in the States of Andhra Pradesh, Bihar,

Maharashtra, Karnataka and Uttar Pradesh, two

Houses;

(b) in other States, one House.

(2) Where there are two Houses of the Legislature of a

State, one shall be known as the Legislative Council

and the other as the Legislative Assembly, and where

there is only one House, it shall be known as the

Legislative Assembly.”

2. Assent is part of the legislative procedure prescribed in

Articles 196-201. The assent of the Head of State is necessary for a Bill

to become an Act in most countries.

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VI. COMPARATIVE POSITION - UNDER OTHER

CONSTITUTIONS:

United Kingdom: In UK royal assent is necessary for enactment

of law. This has been the position since the beginning of Parliament.

The Crown is part of Parliament. The law is enacted by the Parliament

which consists of the Monarch and the two Houses. In earlier times the

Monarch used to come to Parliament to announce the assent to a Bill.

Now the assent is notified to each House separately by its Presiding

Officer. While in theory assenting to a Bill or withholding assent is the

prerogative of the Crown, in effect that power has become obsolete for

over 300 years. With the development of the Cabinet system the Crown

acts on the advise of the Ministers. Royal assent is now given as a matter

of course to a Bill passed by both Houses. There has been no veto since

1707 during the reign of Queen Anne. “To refuse assent would now be

unconstitutional.” (Hood Phillips). “Refusal of the royal assent on the

ground that the Monarch strongly disapproved of a Bill or that it was

intensely controversial would nevertheless be unconstitutional.” (S.A.

deSmith)

VII. LEGISLATION IN FEDERAL STATES:

1. USA: In the USA a Bill passed by the Congress is

required to be presented to the President for his approval. If the

President approves he signs the Bill and then it becomes law. If not, he

may within ten days return it with his objections to the House in which it

originated. Each House will then reconsider it and if it is passed in each

House by two thirds of the members present, the Bill will become law,

notwithstanding the absence of the President’s signature. If the President

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neither signs nor returns, it then becomes law even without his signature

when the ten days time limit expires. If, however, Congress adjourns

before the expiry of the ten day limit and the President does not sign it,

the Bill fails to become law. {Sec 7(2) of Article I -US Constitution}1

2. Canada: In Canada a Bill passed by both Houses of

Parliament is to be presented to the Governor General (vide Secs. 55-57,

British North America Act, 1867 now known as the Constitution

Act,1867)2 who may assent to it or reserve it for the consideration of the

1 “Every Bill which shall have passed the House of Representatives and the Senate shall, before it

becomes a law, be presented to the President of the United States; if he approves he shall sign it, but if

not he shall return it, with his objections, to that House in which it shall have originated, who shall enter

its objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-

thirds of that house shall agree to pass the Bill, it shall be sent together with objections, to the other

House by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall

become a law. But in all such cases the votes of both Houses shall be determined by Yeas and nays, and

the names of the persons voting for and against the bill shall be entered on the journal of each House

respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it

shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the

Congress, by their, adjournment, prevents its return, in which case it shall not be a law.”

2 55. Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the

Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act

and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds

the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure.

56. Where the Governor General assents to a Bill in the Queen's Name, he shall by the first convenient

Opportunity send an authentic Copy of the Act to One of Her Majesty's Principal Secretaries of State,

and if the Queen in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to

disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the

Act was received by him) being signified by the Governor General, by Speech or Message to each of the

Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such

Signification.

57. A Bill reserved for the Signification of the Queen's Pleasure shall not have any Force unless and until

within Two Years from the Day on which it was presented to the Governor General for the Queen's

Assent, the Governor General signifies, by Speech or Message to each of the Houses of the Parliament or

by Proclamation, that it has received the Assent of the Queen in Council.

An Entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House,

and a Duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the

Records of Canada.

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Crown. If a Bill is so reserved it shall not have force of law unless the

Crown signifies its assent within two years from the date of presentation.

Even where the Governor General has assented, the Crown may within

two years of the receipt of a copy of the Bill, veto or disallow the Bill in

which case the Act shall be annulled from the date of such disallowance.

However since 1929 it is settled that the Crown will not exercise this

power.

3. Some Other Countries :

a) The position is the same in Australia. (See Sections 58-60 of

the Commonwealth of Australia Constitution Act, 1901).3

b) In New Zealand also assent of the Head of State is required for

a Bill to become law.

c) Under the Constitution of Eire, 1937 the President has to sign

and promulgate as law every Bill passed by both the Houses {vide

Article 13(3)}. He has no choice in the matter.

3 58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-

General for the Queen's assent, he shall declare, according to his discretion, but subject to this

Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law

for the Queen's pleasure. The Governor-General may return to the house in which it originated any

proposed law so presented to him, and may transmit therewith any amendments which he may

recommend, and the Houses may deal with the recommendation.

59. The Queen may disallow any law within one year from the Governor-General's assent, and such

disallowance on being made known by the Governor-General by speech or message to each of the

Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is

so made known.

60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until within

two years from the day on which it was presented to the Governor-General for the Queen's assent the

Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by

Proclamation, that it has received the Queen's assent.

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d) Under the French Constitution, 1958 the President has to sign

and promulgate all laws passed by Parliament (Article 10)4, though he

may seek reconsideration by Parliament.

e) The Japanese Emperor is not a part of the Legislature and he

has no veto power against legislation-vide Article 41 of the Japanese

Constitution, 1946.

VIII. PROVINCIAL LEGISLATION:

The question of reserving provincial legislation for consideration

of the Head of State does not arise in unitary States like UK or in strictly

federal Constitutions like USA and Australia.

1. Australia: However, under the Australian States

Constitution Act, 1907, the Governor of a State is required to reserve for

royal assent certain legislative measures like those which alter the

constitution of a State Legislature. But significantly the Australian

States have direct communication with the Crown and the Crown’s

powers regarding such Bills are exercised on the advise of the State

Ministry and not the Dominion Ministry. Now under the Australia Act,

1986 State laws are not subject to disallowance or withholding assent or

reserving for royal assent (vide Sections 8,9).

4 Article 10 of the French Constitution of 1958, “the President of the Republic shall promulgate laws

within fifteen days following the transmission to the Government of the finally adopted law.

He may, before the expiration of this time limit, ask Parliament for reconsideration of the law or of

certain of its articles. This reconsideration may not be refused.”

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2. Canada: In Canada while a provincial legislation may be

reserved by the Governor for the Governor General’s assent (Sections

55-57 modified by Section 905 of the Constitution Act) convention has

developed that legislation within the competence of the legislature will

not be disallowed. (See Kennedy’s Essays in Constitutional Law

pp 44-57).

IX. CONSTITUTIONAL POSITION IN INDIA RE: BILLS

PASSED BY PARLIAMENT

When a Bill passed by Parliament is presented to the President,

Article 111 of the Constitution governs the matter. Article 111 is

extracted below:-

Article 111 - Assent to Bills: When a Bill has

been passed by the Houses of Parliament, it shall be

presented to the President, and the President shall

declare either that he assents to the Bill, or that he withholds assent therefrom:

Provided that the President may, as soon as possible

after the presentation to him of a Bill for assent, return

the Bill if it is not a money Bill to the Houses with a

message requesting that they will reconsider the Bill or

any specified provisions thereof and, in particular, will

consider the desirability of introducing any such

5 90. The following Provisions of this Act respecting the Parliament of Canada, namely, -- the

Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to

Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved,-- shall extend and

apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made

applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the

Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen

and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

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amendments as he may recommend in his message, and

when a Bill is so returned, the Houses shall reconsider

the Bill accordingly, and if the Bill is passed again by the

Houses with or without amendments and presented to

the President for assent, the President shall not withhold

assent therefrom.

X. The President shall either declare his assent or withhold his

assent to the Bill; and in the case of non-Money Bills he may send the

Bill back to Parliament with a message and suggestions. Parliament

should then reconsider the Bill and when on such reconsideration it is

passed with or without amendment and again presented to the President

then he has to declare his assent. Thus when a Bill is presented for a

second time the President is bound to assent.

XI. CONSTITUTIONAL POSITION IN INDIA RE. BILLS

PASSED BY STATE LEGISLATURE:

When a bill is passed by the Legislature of a State, the same shall

be presented to the Governor and Article 200 & 201 govern the matter.

They are extracted below:-

Article 200 - Assent to Bills: When a Bill has

been passed by the Legislative Assembly of a State or,

in the case of a State having a Legislative Council, has

been passed by both the Houses of the Legislature of

the State, it shall be presented to the Governor and the

Governor shall declare either that he assents to the Bill

or that he withholds assent therefrom or that he

reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible

after the presentation to him of the Bill for assent,

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return the Bill if it is not a Money Bill together with a

message requesting that the House or Houses will

reconsider the Bill or any specified provisions thereof

and, in particular, will consider the desirability of

introducing any such amendments as he may

recommend in his message and, when a Bill is so

returned, the House or Houses shall reconsider the Bill

accordingly, and if the Bill is passed again by the

House or Houses with or without amendment and

presented to the Governor for assent, the Governor

shall not withhold assent therefrom:

Provided further that the Governor shall not assent to,

but shall reserve for the consideration of the President,

any Bill which in the opinion of the Governor would, if

it became law, so derogate from the powers of the High

Court as to endanger the position which that Court is by this Constitution designed to fill.

Article 201 – Bills reserved for consideration:

When a Bill is reserved by a Governor for the

consideration of the President, the President shall

declare either that he assents to the Bill or that he

withholds assent therefrom:

Provided that, where the 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 Houses of

the Legislature of the States together with such a

message as is mentioned in the first proviso to Article

200 and, when a Bill is so returned, the House or

Houses shall reconsider it accordingly within a period

of six months from the date of receipt of such a

message and, if it is again passed by the House or

Houses with or without amendment, it shall be

presented again to the President for his consideration.

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XII. When a Bill passed by the State Legislature is presented to the

Governor, Article 200 comes into play. The Governor shall declare that

he assents or withholds his assent. In the case of non- Money Bills, the

Governor, like the President, may send the Bill back to the Legislature

with a message for reconsideration. If the Bill is, on such

reconsideration, again passed by the Legislature with or without

amendment and presented to the Governor he has to declare his assent.

Thus when a Bill is presented to the Governor for a second time he is

bound to assent. Besides the three courses of action as stated above

which the Governor may adopt under Article 200, he may reserve a Bill

for the consideration of the President. It is within his authority to do so.

In case a Bill derogates from the powers of the High Court, the

Governor shall not assent but reserve it for the President’s consideration.

2. When a Bill is reserved by the Governor for consideration

of the President Article 201 springs into action. Article 201 lays down

that when a Bill is reserved for the President’s consideration, he may

declare his assent or withhold it or in case of non-Money Bills he may

direct the Governor to send back the Bill to the Legislature with a

message to reconsider it. The Legislature shall within six months of

receipt of such message reconsider the Bill and when it is passed again

with or without the amendments suggested it shall be presented to the

President for his consideration. The Constitution is silent as to the

course of action that the President should then adopt. Thus in India the

position is that in the case of State legislation the Governor (Article 200)

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cannot withhold assent when a Bill after reconsideration by the

legislature is presented for the second time.

3. The grey area appears to be, what matters the Governor

can reserve for the President’s consideration and what happens when a

State Bill returned by the President is reconsidered and passed for a

second time and again presented to the President (Article 201). The

Constitution is silent on these aspects. But sometimes even the silences

of the Constitution are eloquent. Can the President/Governor stifle

legislation validly passed by the legislature? While prima facie there

appears to be some discretion, is it really so? The apparent areas of

discretion may be when the President or the Governor withholds assent

or the Governor reserves a Bill for the President’s consideration and the

action of the President when a State Bill is presented to him after it is

reconsidered and passed a second time.

4. Constitutions are best worked, apart from express

provisions, on the basis of practices and conventions that are evolved

and which are quite significant. Constitutional conventions are part of

constitutional law. Further there is a moral dimension to every major

constitutional issue; the language of the text is not necessarily a

controlling factor. Convention has been developed in all countries that

assent is never intended to, designed or exercised to defeat or undo or

delay legislation.

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XIII. MAJOR PREMISE:

The basic major premise of the Constitution is that what obtains

is limited government. Powers are distributed among the different wings

of the State and between the Centre and the State. No institution or wing

is supreme or conferred with absolute authority or unlimited power.

2. The Constitution envisages not only a democracy of men

but also of institutions. In that sense no institution or office is supreme

or conferred with absolute authority or unlimited power. All are

creatures of the Constitution subject to constitutional limitations and

should function as such. The President and the Governors too are

expected to act in consonance with the spirit and ethos of

constitutionalism.

3. Further, as has been aptly observed, constitutional

interpretation ‘must be aglow with the insightful observations of Chief

Justice Marshall’:

“We must never forget that it is a Constitution

which we are expounding, a Constitution intended to

endure for ages, and consequently to be adapted to the

various crises of human affairs. Nor did they imagine

that it was to be so strictly interpreted that amendments

and radical revisions would be constantly required to

keep Government functioning smoothly.” (McCulloch

v. Maryland (1819) 4 Wh.316 (415)).

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XIV. EXERCISE OF POWER BY PRESIDENT /

GOVERNOR IN GENERAL

The constitutional position regarding exercise of powers by the

President and the Governor is settled and clear. They have to exercise

their powers and discharge their functions including in the matter of

assent to Bills on the basis of Ministerial advise. It is now well

established that the position of the President and the Governor is akin to

that of the constitutional monarch in Britain. He is generally bound by

the advise of his ministers except where it is otherwise prescribed

constitutionally. He can do nothing contrary to their advise nor can he

do anything without their advise. Articles 74 and 163 deal with the

functioning of the President and the Governor respectively. The general

position is clear.

2. Moving the Draft Constitution in the Constituent

Assembly on 4.11.1948, Dr. Ambedkar said:

“There is placed at the head of the Indian Union

a functionary who is called the President of the Union.

The title of this functionary reminds one of the

President of the United States. But beyond identity of

names there is nothing in common between the form of

Government prevalent in America and the form of

Government proposed under the Draft Constitution.

The American form of Government is called the

Presidential system of Government. What the Draft

Constitution proposes is the Parliamentary system. The

two are fundamentally different.... Under the Draft

Constitution, the President occupies the same position

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as the King under the English Constitution. He is the

Head of the State but not of the Executive. He

represents the nation but does not rule the nation. He

is the symbol of the nation. His place in the

administration is that of a ceremonial device on a seal

by which the nation’s decisions are made known.... The

President of the United States is not bound to accept

any advise tendered to him by any of his Secretaries

(who are in charge of different departments). The

President of the Indian Union will be generally bound

by the advise of his Ministers. He can do nothing

contrary to their advise nor can he do anything without

their advice....” (CAD Vol.VII, pg 32-quoted in

Samsher Singh’s case)

3. In the debate regarding Draft Article 61 which is Article

74 (on 30.12.1948) it was stated that these articles

“should not be interpreted literally because they

embody conventions of the Cabinet system of

government evolved in Great Britain as a result of a

long struggle between the King and Parliament. At

every stage of the struggle the King yielded some power,

but was anxious to preserve his prestige. Therefore, at

the end of the struggle, the King gave up all his power

but preserved all his forms. Therefore, it is said here

that there shall be a Council of Ministers with the

Prime Minister at the Head to aid and advise the

President in the exercise of his functions. That does not

mean, that normally, the function of the Prime Minister

is to aid or advise the President in the exercise of his

functions. In fact, the position is altogether opposite or

the reverse. It is the Prime Minister’s business with the

support of the Council of Ministers to rule the country

and the President may be permitted now and then to aid

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and advise the Council of Ministers. Therefore, we

should look at the substance and not at the mere

phraseology which is the result of conventions.” (CAD

Vol. VII pg 1155)

“There is no case which can arise where the

President would be called upon to discharge his

functions without the advise of the Prime Minister or

his Cabinet...Under a Parliamentary system of

Government there are only two prerogatives which the

King or Head of State may exercise. One is the

appointment of the Prime Minister and the other is the

dissolution of Parliament....The position of Governor is

exactly the same as the position of the President...” (Dr.

Ambedkar on 30.12.1948 CAD Vol.VII pg 1158)

4. Article 163 makes a slight difference in the position of the

Governor, viz., that he is not bound by the advise of the Ministers in

matters where he is by or under the Constitution to act in his discretion.

The discretionary power of the Governor is restricted by the express

language of Article 163 which does not confer on the Governor a

general discretionary power to act against or without the advise of the

Council of Ministers. The exposition in the Constituent Assembly

Debates is clear. Speaking on Draft Article 143 which is Article 163, Sir

Alladi Krishnaswami Ayyar said in the first place the general principle

is laid down in Article 143, namely, the principle of ministerial

responsibility that the Governor in the various spheres of executive

activity should act on the advise of his Ministers. Certain specific

functions are to be exercised in his discretion as expressly provided in

some articles.

- 24 -

5. As Dr. Ambedkar stated,

“The article will have to be read in conjunction

with such other articles which specifically reserve the

power to the Governor. It is not a general clause giving

the Governor power to disregard the advise of his

ministers in any matter in which he finds he ought to

disregard.” (CAD Vol. VIII page 501, on 01.06.1949).

6. The functions which are specifically required by the

Constitution to be exercised by the Governor in his discretion are

specified in Articles 239 (2), 371 A (2) (b), (d) and (f); and Para 9(2) of

the 6th

Schedule.

7. The position that in the discharge of their functions the

President and the Governors have a discretion to disregard the advise of

their Council of Ministers is inconsistent with the express conferment of

discretionary power on the Governors under Article 163(2), for if

Governors have a discretion in all matters under Article 163(1), it would

be unnecessary to confer on them an express power to act in their

discretion in a few specified matters. It negatives the view that

President/Governor has general discretionary power to act against

ministerial advise. (H.M. Seervai Constitutional Law of India 4th

Ed. pg

2037). The area of discretion is clearly defined and confined.

8. This does not reduce the Head of State to a mere

figurehead or rubber stamp. He will still have the ‘right to be consulted,

the right to encourage and the right to warn’ (Bagehot- The English

- 25 -

Constitution pg 111) and ‘the right to offer on his own initiative

suggestions and advise to the Ministers even where he is obliged in the

last resort to accept the formal advise tendered’ (de Smith & Brazier-

Constitutional & Administrative Law pg 114).

9. Acting on ministerial advise does not necessarily mean

immediate acceptance of the Ministry’s first thoughts. He can state all

his objections to any proposal and ask his Ministers, if necessary, to

reconsider the matter. It is only in the last resort that he must accept their

final advise (Sir B.N. Rau).

10. This principle and the right of the Head of State to

influence his Council of Ministers is embodied in Articles 74(1) read

with 78 and 163(1) read with 167 and the same are extracted below:

Article 74 - Council of Ministers to aid and

advise the President - (1) There shall be a Council of

Ministers with the Prime Minister at the head to aid

and advise the President who shall, in the exercise of

his functions, act in accordance with such advise:

Provided that the President may require the Council of

Ministers to reconsider such advise, either generally or

otherwise, and the President shall act in accordance

with the advise tendered after such reconsideration.

Article 78 - Duties of Prime Minister as respects

the furnishing of information to the President, etc. - It

shall be the duty of the Prime Minister-

- 26 -

(a) to communicate to the President all decisions of the

Council of Ministers relating to the administration

of the affairs of the Union and proposals for the

legislation;

(b) to furnish such information relating to the

administration of the affairs of the Union and

proposals for legislation as the President may call

for; and

(c) if the President so requires, to submit for the

consideration of the Council of Ministers any

matter on which a decision has been taken by a

Minister but which has not been considered by the

Council.

Article 163- Council of Ministers to aid and

advise Governor - (1) There shall be a Council of

Ministers with the Chief Minister as the head to aid

and advise the Governor in the exercise of his

functions, except in so far as he is by or under this

Constitution required to exercise his functions or any

of them in his discretion.

Article 167 - Duties of Chief Minister as

respects the furnishing of information to Governor, etc.

- It shall be the duty of the Chief Minister of each

State-

(a) to communicate to the Governor of the State all

decisions of the Council of Ministers relating to the

administration of the affairs of the State and

proposals for the legislation;

(b) to furnish such information relating to the

administration of the affairs of the State and

proposals for legislation as the Governor may call

for; and

- 27 -

(c) if the Governor so requires, to submit for the

consideration of the Council of Ministers any

matter on which a decision has been taken by a

Minister but which has not been considered by the

Council.

11. The purport of all this is clear from a passage in the

Memorandum submitted by Prime Minister Asquith to King George V

in 1913 and expressed tersely and precisely

“.......a constitutional monarch in this country is

entitled and bound to give his Ministers all relevant

information which comes to him; to point out

objections which seem to him valid against the course

which they advise; to suggest, if he thinks fit, an

alternative policy. Such instructions are always

received by Ministers with the utmost respect and

considered with more respect and deference than if

they proceeded from any other quarters. But, in the

end, the Sovereign always acts upon the advise which

Ministers after full deliberation and (if need be)

reconsideration, feel it their duty to offer. They give

that advise well knowing that they can, and probably

will, be called upon to account for it by Parliament.”

This has been quoted in the Constituent Assembly

Debates on 2.6.1949 (at page 542 of Vol VIII).

12. These conventions have been adverted to, reiterated and

accepted by the Supreme Court as part of constitutional law and hence

legally enforceable. Reference may be made to some of the decisions-

S.C. Advocates-on-Record Association vs. Union of India (II Judges

Case) (AIR 1994 SC 268); S.R. Bommai vs. Union of India (AIR 1994

SC 1918).

- 28 -

13. It is also relevant to refer to the 20th

report of the

Governors Committee:

“Even in the sphere where the Governor is bound to

act on the advise of his Council of Ministers, it does

not necessarily mean the immediate and automatic

acceptance by him of such advise. In any relationship

between the Governor and his Council of Ministers,

the process of mutual discussion is implicit, and the

Governor will not be committing any impropriety if he

states all his objections to any proposed course of

action and asks the Ministry to reconsider the matter.

In the last resort, he is bound to accept its final advise,

but he has a duty, whenever necessary, to advise the

Ministry if he thinks that the Ministry is taking an

erroneous step and to suggest to it to reconsider the

proposed course of action. In the process of advise and

consent, there is ample room for exchange of views

between the Governor and Council of Ministers even

though he is bound to accept its advise.”

14. As Seervai points out,

“it is enough to say that Samsher Singh’s case (AIR

1974 SC 2192) has finally established, it is submitted

rightly, that the President is the constitutional head of

government obliged to act on the advise of his Council

of Ministers.”

(H.M.Seervai: Constitutional Law of India 4th

Ed. pg

2035).

15. Samsher Singh’s case was referred to a larger Bench to

delineate the constitutional position of the President/Governor. It was

necessitated by a couple of earlier rulings which really represented a

drift and not the trend of judicial opinion in that behalf. The issue was

- 29 -

whether the constitutional requirement of the satisfaction of the

President/Governor means his personal satisfaction. The Court

unequivocally reiterated the settled legal position that the

President/Governor is only the constitutional head, the real power being

vested in the Council of Ministers on whose aid and advise the

President/Governor exercises his powers and functions. The satisfaction

required by the Constitution is not the personal satisfaction of the

President or Governor but the satisfaction of the President or Governor

in the constitutional sense in the cabinet system of government, that is,

the satisfaction of his Council of Ministers. In Constitutional Law, the

‘functions’ of the President and Governor and the ‘business’ of

Government belong to the Ministers and not to the Head of State, that

‘aid and advise’ of Ministers are terms of art which in law mean, in the

Cabinet context of our constitutional scheme, that the aider acts and the

advisor decides in his own authority and not subject to the power of

President to accept or reject such action or decision, except, in the case

of Governors, to the limited extent that Article 163 permits and his

discretion, remote controlled by the Centre has play.

16. As Justice Krishna Iyer put it in his inimitable style in

Samsher Singh v. State of Punjab (AIR 1974 SC 2192),

“The omnipotence of the President and of the

Governor at the State level is euphemistically inscribed

in the pages of our Fundamental Law with the obvious

intent that even where express conferment of power

and functions is written into the Articles, such business

has to be disposed of decisively by the Ministry

- 30 -

answerable to the Legislature and through it

vicariously to the people, thus vindicating our

democracy instead of surrendering it to a single

summit soul whose deification is incompatible with the

basis of our political architecture”.

This underscores the ideas of representation and responsibility,

the twin attributes of a Parliamentary system.

XV. EXERCISE OF POWER BY THE GOVERNOR

RE: ASSENT

It is clear from the constitutional position of the Governor that his

powers have to be exercised in accordance with ministerial advise. This

holds good even in the matter of assent to Bills. The Constituent

Assembly Debates and the judgments underscore this position. The

discretionary power of the Governor is defined by Article 163 itself.

There is no general discretionary power. The power of assent is not one

of the functions which the Governor is by or under the Constitution

required to exercise in his discretion. It is significant that unlike the

corresponding provision – Sec 75 of the Government of India Act, 1935,

the words ‘in his discretion’ have been omitted in Article 200. One of

the situations where the Governor can act in his discretion is the second

proviso to Article 200- reserving for the consideration of the President, a

Bill, which in the opinion of the Governor would derogate from the

powers of the High Court.

- 31 -

2. In the debate on Draft Article 175 which is Article 200, it

was stated by Dr. Ambedkar that

“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...... It was

felt then that in a responsible Government there can be

room for Governor acting on discretion. Therefore, the

new proviso deletes the words ‘in his discretion’

(14.6.1949 Vol IX CAD pg 41).

3. Participating in the debate Sri. T.T.Krishnamachari said

“I would ask him to remember one particular

point to which Dr. Ambedkar drew pointed attention,

viz., that the Governor will not be exercising his

discretion in the matter of referring a Bill back to the

House with a message. That provision has gone out of

the picture. The Governor is no longer vested with any

discretion. If it happens that as per amendment no. 17,

the Governor sends a Bill back for further

consideration he does so expressly on the advise of his

Council of Ministers. The provision has merely been

made to be used if an occasion arises when the

formalities envisaged in Article 172 (present Article

197) which has already been passed do not perhaps go

through, but there is some point of the Bill which has

been accepted by the Upper House which the Ministry

thereafter finds has to be modified. Then they will use

this procedure; they will use the Governor to hold up

the further proceedings of the Bill and remit it to the

Lower House with his message. If my Hon. Friend

understands that the Governor cannot act on his own,

- 32 -

he can act only on the advise of the Ministry then the

whole picture will fall clearly in its proper place before

him. It may happen that the whole procedure

envisaged in Article 172 also goes through and then

again something might have to be done in the manner

laid down by the particular proviso but it is perhaps

unlikely. It is a saving clause and vests power in the

hands of the Ministry to remedy a hasty action or meet

the popular opinion reflected outside the House, that it

does not detract from the power of the lower House or

confer any more power on the Governor” (pg 61 of Vol

IX CAD).

In principle the position would be the same with regard to other

provisions of Article 200 as also Articles 201 and 111.

4. It has been stated by Sir Alladi that

“Article 74 is all pervasive in its character and

does not make any distinction between one kind of

function and another. It applies to every function and

power vested in the President, whether it relates to

addressing the House or returning a Bill for

reconsideration or assenting or withholding assent to

the Bill..... The expression ‘aid and advise’ in Article

74 cannot be construed so as to enable the President to

act independently or against the advise of the

Cabinet.....” In Article 111 dealing with the power to

remit a Bill for reconsideration, “the President is not

intended to be a revisional or appellate authority over

the Cabinet. A Bill might have been introduced either

by a private member or a member of the Cabinet. It

may be rushed through in the Parliament. The Cabinet

might notice an obvious slip or error after it has passed

the Houses. This power vested in the President is as

- 33 -

much intended to be exercised on the advise of the

Cabinet as any other power.”

5. All this has been referred to with approval by the Supreme

Court in Samsher Singh and it has been stated:

“We declare the law of this branch of our

Constitution to be that the President and Governor,

custodians of all executive and other powers under

various articles, shall, by virtue of these provisions,

exercise their formal constitutional powers only upon

and in accordance with the advise of their Ministers

save in a few well known exceptional situations...... We

have no doubt that deSmith’s statement regarding

royal assent holds good for the President and Governor

in India: “Refusal of the royal assent on the ground

that the Monarch strongly disapproved of a Bill or that

it was intensely controversial would nevertheless be

unconstitutional. The only circumstances in which the

withholding of the royal assent might be justifiable

would be if the Government itself were to advise such a

course-a highly improbable contingency- or possibly if

it was notorious that a Bill had been passed in

disregard to mandatory procedural requirements; but

since the Government in the latter situation would be

of the opinion that the deviation would not affect the

validity of the measure once it had been assented to,

prudence would suggest the giving of assent.”

This has been referred to and followed by a five Judge Bench in

Madhya Pradesh Special Police Establishment vs. State of Madhya

Pradesh - (2004) 8 SCC 788.

6. There is an instance of veto/withholding assent by the

President way back in 1954. Parliament had passed the PEPSU

- 34 -

Appropriation Bill under Article 357 because President’s rule was

proclaimed in that State. That proclamation was revoked on 7.3.1954.

The Bill was presented to the President, Dr. Rajendra Prasad on

8.3.1954 when Parliament had no authority to exercise legislative

powers of PEPSU State. Hence the President did not give his assent. The

power to withhold assent is necessary to prevent enactment of a Bill

which appears to be ultra vires or unconstitutional when it is ready for

the President’s assent.

7. Of course, when a Bill is returned, reconsidered and

presented to the Governor (Article 200) he is bound to assent. Apart

from the express language of the article, that position stems from the

principle underlying the conventional role and rights of the Head of

State- to be consulted, to encourage, to warn, to seek information, to

offer suggestions and advise and ultimately be bound by the formal

advise tendered to him.

XVI. RESERVING FOR PRESIDENT’S CONSIDERATION:

The Constitution provides for a cooperative federalism with a

bias in favour of the Centre which within reasonable limits is necessary

for the preservation of the indestructible Union of States. There are no

guidelines in the matter of exercise of power by the Governor under

Article 200. Initially it was thought that Instrument of Instructions

would be issued to the Governors for their guidance but later it was felt

to be unnecessary.

- 35 -

2. As Palkhivala said the object of enacting these provisions

was perhaps that while the constitutionality of a law can be challenged

in a court, its wisdom cannot be and that it would be better to prevent a

clearly unconstitutional legislation from becoming law than to have it

invalidated by a court later. A Governor is expected to reserve only such

Bills for the President’s consideration and assent as are patently

unconstitutional or palpably against the national interest. But in practice

and reality instances are not wanting where Governors surrender their

judgement and act as deferential subordinates of the Union Government

in exercising this power. Moreover it is also true that the record of the

Centre in enacting legislation is not such as to justify the belief that it is

superior to the States in wisdom or in knowledge of constitutional

limitations.

3. The Constitution is silent as to matters and occasions in

which the Governor may reserve a Bill for the consideration of the

President. While what the Governor may reserve for the President’s

consideration appears to be discretionary, as noted earlier the Governor

has to act on ministerial advise except where he is required by or under

the Constitution to act in his discretion and this is not one of such

matters. It may therefore be stated that except where the Constitution

requires and mandates reservation of a Bill for the President’s

consideration and assent, it is only legislation on topics in the

Concurrent List that would have to be reserved for the President’s

consideration in case of any repugnancy with a Union law. Of course

- 36 -

even this, the Governor would have to do on ministerial advise. But this

may perhaps be one area where there is room for differing views

regarding repugnancy and the Governor may think it appropriate to

reserve the Bill for the President’s consideration and assent to avoid any

problem regarding its validity. Discretion, if any, for the Governor to

reserve Bills for the President’s consideration can only be with regard to

legislation on topics in List III.

4. Vice President G.S.Pathak had remarked in 1970 that in

the sphere in which he is bound by the advise of the Council of

Ministers, for obvious reasons, the Governor must be independent of

the Centre as there may be cases where the advise of the Centre may

clash with the advise of the State Council of Ministers and in such

cases the Governor ignores the Centre’s advise and acts on the advise

of his Council of Ministers. (From The White Paper on the Office of the

Governor: Constitutional Position and Political Perversion,

Government of Karnataka, September 1983, pg21- Quoted in

Rameshwar Prasad vs. Union of India AIR 2006 SC 980).

5. However, it is not for the Governor to entertain doubts

about the constitutionality of the provisions of a Bill and decline to give

assent to a Bill or reserve it for the President’s consideration;

constitutionality is for the Courts to decide after the Bill becomes law.

This would accord with democratic principles and values. Any other

interpretation would clothe the Governor with the plenitude of power

- 37 -

and discretion even vaster than the President of India or even a President

under a Presidential system which is not intended or provided for in the

Constitution and would also result in sacrificing many democratic values.

Of course, it would be open to the Governor to seek legal advise from

the Advocate General or from any other person. It would also be open to

him to share and discuss these views with the Ministry. But in the end

he is bound to act as per the advise given to him by the Ministry.

Moreover, reserving a Bill for the President’s consideration except

where it is absolutely called for will also be, in one sense, abdication of

his powers and functions by the Governor. The Sarkaria Commission on

Centre-State Relations has stated that reserving a Bill for the President’s

consideration is intended to subserve the broad purpose of co-operative

federalism and it is to be used sparingly and only in proper cases.

6. Even though ours is not a strictly classical federal

constitution, the State legislatures are supreme in their allotted spheres.

Hence where Article 254(2) is not attracted, the Governor reserving a

Bill for the President’s consideration and the President declining assent

would hurt and defeat democratic values and sentiments and the federal

principle and would be against the constitutional ethos. To ensure

adherence to this settled legal position an appropriate amendment may

be brought.

- 38 -

XVII. ARTICLE 201- PRESIDENT’S DISCRETION.

Another slippery area is Article 201- President’s assent to State

legislation. The President has to act on the aid and advise of his Council

of Ministers. No grounds are indicated in the Constitution upon which

the President can refuse assent. There are also no guidelines regarding

the consideration which the Union Government applies to examine a

Bill reserved for the President’s assent. Thus even in the matter of assent

to a State Bill the President is to be guided and bound by the advise of

the Union Government. However he is not expected to refuse assent to

nullify laws passed by the representative State legislature. Two

constitutional principles would then come into play and conflict. If the

President, on the advise of the Union Government, refuses assent to a

State legislation, his action will not be unconstitutional as he is bound

by the advise of the Cabinet; but such action will be detrimental to the

interests of federalism and the democratic principle. It will be, therefore,

susceptible to scrutiny and correction in judicial review.

2. It is significant to note that there was virtually no

discussion in the Constituent Assembly on draft Article 176 which is the

present Article 201. The same was adopted on 1.8.1949 without any

discussion. But the trend of discussions and the tenor of the

constitutional scheme regarding the powers and functions of the Head of

State leave no room for any doubt that legislation brought by the

representative legislature should not be nullified by the discretion

apparently vested in the Head of State nor is the Union Executive to be

- 39 -

construed and enthroned as a super legislature over the State legislature

in legislative matters.

3. A judgement of the House of Lords regarding correction

of obvious drafting errors may be referred to.

“Where `Homer in the person of the draftsman

(of an Act of Parliament) nodded’ and omitted words

from a statute necessary to secure its purpose, those

words may, in appropriate circumstances, be read into

the statute.... The principle is not limited to the

insertion of necessary words. Words may be substituted

or omitted as required.”

See Inco Europe Ltd v. First Choice

Distribution [2000] 1 WLR HL 586(589,592).

An appropriate amendment may be made to make explicit this

undoubted legal position.

XVIII. TIME FRAME FOR EXERCISE OF POWER- NO

INACTION:

The Constitution does not prescribe any time limit for the

President or the Governor declaring assent to a Bill or reserving it for

the President’s consideration. It would indeed be anomalous and

paradoxical if more time is taken by the Head of State to assent to a Bill

than for the Legislature to pass it. It is well settled that every State action

has to be reasonable. The reasonable exercise of power inheres its

exercise within a reasonable time. Where for exercise of power no time

limit is fixed, it has to be exercised within a time which can be held to

- 40 -

be reasonable. Not doing so will be unreasonable. An authority failing to

exercise power vested in it within a reasonable time can be compelled to

do so by a writ of mandamus. Indeed it may be said that ‘pocket veto’

or ‘cold storaging’ a Bill duly passed and presented for assent is not

contemplated in the constitutional scheme. Articles 111/200/201 provide

that the President/ Governor, as the case may be, shall do one of the

things. Inaction on their part is not envisaged going by the express

language of the constitutional provisions. It may be advisable to provide

by a suitable amendment for a time frame for exercise of power re:

assent.

2. The time taken for exercising the conventional rights of

the President/Governor to offer suggestions and be consulted also has to

be reasonable and the time frame fixed for exercising power re: assent

will reckon this also. It will be quite a welcome thing for the

President/Governor to keep himself acquainted with the legislative

business and if felt necessary offer his views and advise even on

pending legislation. This is permissible and is in consonance with

Articles 78/167 and 86/175. This will be a time saving measure to some

extent.

Article 86- Right of President to address and

send messages to Houses - (1) The President may

address either House of Parliament or both Houses

assembled together, and for that purpose require the

attendance of members.

- 41 -

(2) The President may send messages to either

House of Parliament, whether with respect to a Bill

then pending in Parliament or otherwise, and a House

to which any message is so sent shall with all

convenient despatch consider any matter required by

the message to be taken into consideration.

Article 175 - Right of Governor to address and

send messages to the House or Houses - (1) The

Governor may address the Legislative Assembly or, in

the case of a State having a Legislative Council, either

House of the Legislature of the State or, both Houses

assembled together, and may for that purpose require

the attendance of members.

(2) The Governor may send messages to the

House or Houses of the Legislature of the State,

whether with respect to a Bill then pending in the

Legislature or otherwise, and a House to which any

message is so sent shall with all convenient despatch

consider any matter required by the message to be

taken into consideration.

3. The earnestness and despatch with which the Indian

Independence Act was enacted is a pointer. The Bill was introduced in

the House of Commons on 04.07.1947 and it was passed on 15.07.1947.

The House of Lords passed it on 16.07.1947. Royal Assent to the Bill

was granted by King George VI on 18.07.1947.

XIX. JUSTICIABILITY OF ACTION UNDER ARTICLES 111,

200, 201

It is now well settled as a constitutional practice and convention

that the power of assent should not be used to defeat validly enacted

- 42 -

legislation. Constitutional conventions are part of constitutional law.

The modern Canadian practice, points out Kennedy, is that legislation

which is within the competence of the legislature will not be disallowed.

To refuse assent would now be unconstitutional, says Hood Phillips.

2. The concurring judgment of Krishna Iyer J in Samsher

Singh & anr. Vs State of Punjab (1974) 2 SCC 831 (para 154) quoted

with approval De Smith that refusal of royal assent would be

unconstitutional. The only sequitur is that refusal of assent is justiciable.

This is because ‘refusal of assent would be unconstitutional’ means that

such refusal can be scrutinized and so declared by the Court. This was

reiterated and followed by a unanimous judgment of the Constitution

Bench in M.P. Special Police Establishment Case (2004) 8 SCC

788=AIR 2005 SC 325.

The judgment in Samsher Singh has not been noticed in Hoechst

Pharmaceuticals (AIR 1983 SC 1019) nor in Bharat Sevashram (AIR

1987 SC 494) where it was observed that assent is not justiciable.

3. In the light of this unequivocal enunciation of the

constitutional position- the President or the Governor cannot decline to

assent to a legislation validly passed and if he does so, such action is

justiciable and can be declared unconstitutional and he be compelled to

grant assent. Assent means an expressed agreement of mind to what is

proposed. It calls for serious consideration of the relevant material and is

not an idle or empty formality. The power to grant assent is not an

- 43 -

exercise of the legislative power but is a part of legislative procedure

and is not immune from judicial scrutiny.

4. This legal position also flows from the judgments in

Basantilal Banarasilal vs. Bansilal Dagdulal (AIR 1955 Bom 35);

Sowdambigai Motor Service vs. State of Tamil Nadu ((1980) 1 MLJ

82). Gram Panchayat of Village Jamalpur vs. Malvinder Singh (AIR

1985 SC 1394); Kaiser-i-Hind (P) Ltd vs. NTC (AIR 2002 SC 3404).

5. Moreover against the backdrop of the expanding horizons

of Constitutional Law and Administrative Law as also constitutional

interpretation and exposition, judicial review of assent is not a heresy.

The principle enunciated by the Supreme Court in B.P.Singhal vs.

Union of India ((2010) 6 SCC 331) that a Governor cannot be removed

on the ground of his not being in sync with the policies of Union

Government or his not subscribing to the ideology of the party in power

at the Centre applies with greater vigour in the case of legislation passed

by elected representatives and assent cannot be withheld for the reason

that the President or the Governor has views and subscribes to

ideologies different from those of the Government in power which is in

office because of the majority it enjoys in the legislature to which it is

responsible and legislation is the result of policy decisions of the

Government and debate and discussion in the legislature. It is now well

settled that no power is inherently unreviewable and in a constitutional

democracy wedded to the rule of law unfettered and unreviewable

discretion is a contradiction in terms.

- 44 -

6. As Justice Holmes said in Missouri vs. Holland (1920)

252 US 416(433)

“... The provisions of a Constitution call into life

a being, a state of affairs, the development of which

could have been at best felt vaguely but could not have

been seen completely by the most gifted of its

begetters.” In Gompers vs.US (1914) 233 US 604(610)

Justice Holmes observed, “The provisions of the

Constitution are not mathematical formulas having

their essence in their form....their significance is vital

not formal; it is to be gathered not simply by taking the

words and a dictionary, but by considering their origin

and the line of their growth.”

7. It is keeping this in view that the Supreme Court

proceeded to examine the matter in Singhal’s case.

“The Rule of Law and the principle of legality

cannot be compromised on grounds of political

expediency. The supreme quality of the rule of law is

fairness and legal certainty. The principle of legality

occupies a central position plan in the Rule of Law. To

go by considerations of political expediency would be

subversive of the fundamental principles of the Rule of

Law and it would amount to setting a dangerous

precedent. The Rule of Law comprises a requirement

of Government according to law the ethos of which

requires the prerogative to be exercised consistently

with the basic principles of fairness and certainty.”

Further, if there be any area of discretion in the matter of assent,

no discretion being unfettered and unreviewable, it is justiciable.

- 45 -

8. It has been authoritatively laid down that all public power

including constitutional power shall never be exercisable arbitrarily or

malafide and that the absence of any obligation to convey reasons does

not mean that there should not be legitimate, relevant reasons for a

decision. These axioms are valid and well settled in our constitutional

order and govern the exercise of all power.

9. In Purushothaman Nambudiri vs. State of Kerala (AIR

1962 SC 694), the Court only observed that the Constitution does not

impose any time limit within which the Governor should make any of

the declarations (and similarly in the case of the President also) – para

16. It did not say anything about the means of compelling assent. The

observation was in the context and course of deciding whether a Bill

lapses with the prorogation or dissolution of the House. That was the

issue. The parties did not join issue nor did the court decide as to

whether the Governor (and the President) can be compelled to give

assent and if so, within a time frame. All this was 50 years ago.

10. In Hoechst Pharmaceuticals Ltd. vs. State of Bihar (AIR

1983 SC 1019) again the justiciability or otherwise of the action under

Articles 111, 200, 201 was not the issue. What fell for decision was the

power of the State Legislature to levy a particular tax and whether the

State law conflicted with any Central law. It has been stated in the

judgment that the Governor may, on the advise of the Council of

Ministers, reserve a Bill for the President’s consideration and assent.

- 46 -

The Act in question was a consolidating Act relating to different

subjects and perhaps the Governor felt it necessary to reserve it for the

President’s consideration. It was held in that context that the assent of

the President is not justiciable and ‘no infirmity arising out of his

decision to give such assent could be spelled out.’ These last words

contain the key to the decision and indicate that in the circumstances

there was no infirmity in giving assent. It would thus be possible to

examine if there is any infirmity and decide the matter which indeed is

justiciability of assent.

11. In Bharat Seva Ashram Sangh vs. State of Gujarat (AIR

1987 SC 494) there is only an incidental observation following and

quoting Hoechst Pharmaceuticals Ltd. that assent is not justiciable. The

question did not at all arise. The Gujarat Ordinance which was later

replaced by the Act was promulgated with instructions from the

President under Article 213 and it was held that it would prevail in the

State.

These decisions do not detract from the tenability and

appropriateness of the earlier discussion.

12. Further it is now well settled that action under Article 356

– imposition of President’s Rule and the grant of pardon, etc under

Article 72/161 is justiciable and amenable to judicial review. So also

the power of removal of Governors – Article 156.

- 47 -

13. It is therefore eminently arguable and indeed the legal

position seems irrefutable that assent is justiciable both on procedural

and substantive grounds though limited and varying according to the

subject and the context. But the need for amendment continues.

XX. RECOMMENDATIONS OF VARIOUS COMMISSIONS

ON GOVERNOR’S POWER TO ACCORD ASSENT TO

BILLS:

Different recommendations have been made by various

Commissions like the Rajammanar Committee, the Sarkaria

Commission, the National Commission to Review the Working of the

Constitution (NCRWC) and the Punchhi Commission.

2. The Rajammanar Committee (1971) recommended repeal

of the provision enabling the Governor to reserve any Bill for the

consideration of the President. (See N.A. Palkhivala: We, the People pg

254).

3. The Sarkaria Commission (1988) was of the view that an

amendment to these provisions was not called for, that healthy

conventions would be developed and all concerned would function with

wisdom and objectivity. The Sarkaria Commission was also of the

opinion that Article 200 did not invest the Governor with a general

discretion in reserving Bills. Only in extremely rare cases should the

Governor reserve a Bill in his discretion and not merely because,

personally, he does not like the policy embodied in the Bill. It also

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advocated disposal of the Bills sent for the President’s consideration

within four months of their receipt. The Commission noted that in 1952

and 1978 the Home Ministry had issued instructions to other Central

Ministries that Bills sent to them for consideration `should be very

expeditiously considered’ and returned to it ‘within a few days’.

Granville Austin in his ‘Working a Democratic Constitution’ remarks

that in a splendid piece of understatement the Commission commented

that these instructions were not being strictly followed. He also states

that reservation of Bills became an irritant in Centre-State relations

because of the principles involved and the volume of Bills reserved over

the years.

4. The NCRWC (Venkatachaliah Commission) (2002) in its

consultation paper proposed amendments to Articles 111, 200 and 201-

a) Prescribe a time-limit- say a period of four

months- within which the Governor should take a

decision whether to grant assent or to reserve it for

the consideration of the President;

b) Delete the words “or that he withholds assent

therefrom.” In other words, the power to withhold

assent, conferred upon the Governor, by Article

200 should be done away with;

c) If the Bill is reserved for the consideration of the

President, there should be a time limit, say of three

months, within which the President should take a

decision whether to accord his assent or to direct

the Governor to return it to the State Legislature

or to seek the opinion of the Supreme Court

regarding the constitutionality of the Act under

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Article 143 (as it happened in the case of Kerala

Education Bill in 1958);

d) When the State Legislature reconsiders and passes

the Bill (with or without amendments) after it is

returned by the Governor pursuant to the

direction of the President, the President should be

bound to grant his assent;

e) To provide that a “Money Bill” cannot be reserved

by the Governor for the consideration of the

President;

f) In the alternative it may be more advisable to

delete altogether the words in Article 200

empowering the Governor to reserve a Bill for the

consideration of the President except in the case

contemplated by the second proviso to Article 200

and in cases where the Constitution requires him

to do so. Such a course would not only strengthen

the federal principle but would also do away with

the anomalous situation, whereunder a Bill passed

by the State Legislature can be ‘killed’ by the

Union Council of Ministers by advising the

President to withhold his assent thereto or just by

cold-storaging it.

However the recommendations were finally confined to

prescribing a time limit for actions under Articles 111, 200 and 201.

5. There should be a time-limit- say a period of six months-

within which the Governor should take a decision whether to grant

assent or to reserve a Bill for consideration of the President. If the Bill is

reserved for consideration of the President, there should be a time-limit,

- 50 -

say of three months, within which the President should take a decision

whether to accord his assent or to direct the Governor to return it to the

State Legislature or to seek the opinion of the Supreme Court regarding

the constitutionality of the Act under Article 143. (Para 8.14.6).

6. The Punchhi Commission (2010) was of the opinion that

all the proposals in the consultation paper of NCRWC should be

implemented with the incorporation of appropriate amendments. In the

Commission’s view, the period of six months prescribed in Article 201

for State Legislature to act when the Bill is returned by the President can

be made applicable for the President also to decide on assenting or

withholding assent to a Bill reserved for consideration of the President.

(Para 3.6.03).

7. Furthermore, it is necessary to prescribe a time limit

within which the Governor should take the decision whether to grant

assent or to reserve it for consideration of the President. The

Commission had earlier recommended that the time limit of six months

prescribed for the State Legislature to act on the President’s message on

a reserved Bill should be the time limit for the President also to decide

on assenting or withholding of assent. The Governor accordingly should

make his decision on the Bill within a maximum period of six months

after submission to him. (Para 4.5.01).

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XXI. EXPERIENCE OF WORKING THE CONSTITUTION

The Constitution makers had left some of the things unsaid in the

hope and expectation that healthy conventions would develop and guide

the working of the Constitution. The proposal to issue Instrument of

Instructions for the exercise of powers and functions by the President

and the Governors was later withdrawn. It was said that what had once

been thought ‘necessary’ could now ‘be left entirely to convention’. (See

CAD Vol X pg 114,115, 269,270)

2. Granville Austin in his The Indian Constitution:

Cornerstone of a Nation (pg 138,139) observes that one is forced to

deduce that the Drafting Committee had come to the conclusion that

the written provisions of a non-justiciable Instrument of Instructions

and the tacit conventions of cabinet government had equal value: both

were legally unenforceable,.....and of the two, conventions were the

tidiest and the simplest way of limiting executive authority.

“With the Instruments of Instructions gone, the

protection of parliamentary government in India was

left to convention, to the vigilance of Parliament, and

ultimately, to quote Dicey, ‘to the will of that power

which..... is the true political sovereign of the State- the

majority of the electors or......the nation.”

3. However, the ground realities have not matched the ideal.

Justice Holmes said in a classic statement that the life of the law has not

been logic; it has been experienced. Experience has shown that in spite

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of over six decades of the working of our Constitution we have not

evolved practices and conventions conducive to a healthy federal

democratic polity. While in UK the Crown has not exercised the power

to veto legislation for over 300 years, the Indian experience especially in

the States has been that several legislations have been held up for want

of assent for various reasons. It is not uncommon particularly in today’s

political scenario with a multiplicity of political parties that different

political parties sometimes with opposing ideologies are in power at the

Centre and in the States and there is a clash of interests .

XXII. INDEPENDENT & COMPETENT GOVERNORS

NEEDED:

The Governor is the linchpin in the constitutional apparatus of the

State as stated by the Sarkaria Commission. The Governor is appointed

by the President on the advise of the Union Government. It cannot but

be said that the choice of the person to be appointed as Governor and his

personality also has a significant bearing on the issue of assent. The

problem of delaying or not granting assent to State legislation may also

be attributed to Governors who have their own political agenda and

affiliation and act as mere representatives of the Government at the

Centre. While it cannot be universalised, Governors of late have not

acquitted themselves well as non-partisan statesmen abiding by the

Constitution and its ethos. Appointed by the Central Government, many

times they act as agents or servile subordinates of the Union

Government, or worse, the party in power at the Centre even in the

- 53 -

matter of assent. They either delay assent to a Bill or reserve it for the

President’s consideration. Delay in according assent may have serious

political ramifications besides depriving the people the benefits that the

new legislations are expected to confer on the people. There have been

several instances to which we have adverted earlier where according of

assent has been unreasonably delayed to the extent of about two years.

2. Hence the importance of having men of proven integrity

and impartiality and political neutrality as Governors. The office of the

Governor was never intended to be a parallel centre of political power.

There have been recommendations over and over again in the matter of

appointment of Governors and their functioning. As the problem persists

the suggestions and recommendations call for reiteration.

3. The Rajammanar Committee made the following

recommendations- (See: We the People –N.A. Palkhivala pg 253-254):

The Governor should be appointed always in

consultation with the State Cabinet. The other

alternative will be to make the appointment in

consultation with a high powered body specially

constituted for the purpose.

The Governor should be rendered ineligible for a

second term of office as Governor or any other office

under Government. He should not be liable to removal

except for proved misbehaviour or incapacity after

inquiry by the Supreme Court.

A specific provision should be inserted in the

Constitution enabling the President to issue

Instruments of Instructions to the Governors. The

- 54 -

Instruments of Instructions should lay down guidelines

indicating the matters in respect of which the Governor

should consult the Central Government or in relation

to which the Central Government could issue

directions to him. Those Instructions should also

specify the principles with reference to which the

Governor should act as the Head of the State including

the occasions for exercise of discretionary powers.

4. The Sarkaria Commission in its Report at para 4.16.01 of

Vol I stated that a person to be appointed Governor ‘should be eminent

in some walk of life; that he should be a person from outside the State;

that he should be a detached figure and not too intimately connected

with the local politics of the State; that he should be a person who has

not taken too great a part in politics generally, and particularly in the

recent past.’

5. The Venkatachaliah Commission reiterated verbatim the

recommendations of the Sarkaria Commission. (Para 8.14.03).

6. The Punchhi Commission also reiterated the same criteria

and expressed the view that the Central Government should adopt strict

guidelines as recommended in the Sarkaria Report and follow its

mandate in letter and spirit.

7. It is submitted that more important than who should be a

Governor is the question who should not be appointed as a Governor.

Those in active politics should, as a rule, not be made Governors, and

- 55 -

even more, active politicians of a political party different from the one in

power in the State should not be appointed. But as Palkhivala rightly

said, “The only satisfactory and lasting solution of the vexed problem

is to be found not in the statute book but in the conscience of men in

power.” No Constitution or law is self-executing. It requires human

agency to implement it. To quote Professor Granville Austin in his

‘Working a Democratic Constitution’, “A Constitution however

‘living’ is inert. It does not ‘work’, it is worked-worked by human

beings whose conduct it may shape, whose energies it may canalize,

but whose character it cannot improve, and whose tasks it cannot

perform.”

XXIII. NEED FOR AMENDMENTS:

When a Bill duly passed by the legislature is not assented it will

mean that the will of the people is neutralised and the policies and

programmes of a democratically elected government are put on hold.

Law fosters law making opinion and laws are a result of public opinion.

It would be wholly improper to defeat or delay implementation of the

law. The political consequences for political parties of such delay in

granting assent to a legislation and implementing it can also be quite

chilling and disastrous and can have a serious impact on their political

fortunes. Political parties contest elections and come to power on the

basis of their political manifesto holding out promises. Parties promise

to bring in reforms or what they consider is good for the populace or

catch the people’s attention. It may be that a manifesto is not justiciable

- 56 -

or legally enforceable but it has political compulsions. As Prof Peter

Cane says, “No set of policy proposals has greater democratic

legitimacy than that which the Government puts forward to the

electorate and on the basis of which it was voted into power. However

the Government is not bound by its election manifesto, and the force

of the theory of the electoral mandate is essentially facilitative. To

break ‘an election promise’ may be politically damaging, but it is not a

breach of constitutional propriety.” [See: The Constitutional & Legal

Framework of Policy Making in The Golden Metwand pg 39 @ pg 57].

2. It may be difficult and politically disastrous for a party to

go back to the electorate without having done what was held out. Then

again on the eve of elections the ruling political party may have some

political agenda which it can further through legislation. In all such

cases if assent is not given to the legislation passed by the Houses the

political fallout could be quite heavy. Such situations have to be avoided.

It is rightly said that constitutional law is an intersection of law and

politics. Therefore political dimensions or fallout of a particular action

may be a factor to reckon within the constitutional scheme.

3. When Bills are reserved for the President’s consideration,

the President has to act on the advise of the Union Government. There

are no tests or guidelines as to what are the considerations to apply to

examine a Bill reserved for the President’s consideration. When the

Union Government and the State Government belong to different

- 57 -

political ideologies, many a time, reasons other than constitutional or of

public interest and even political considerations may creep in and vitiate

the process of Presidential assent. If assent is delayed or declined for

reasons not germane, it would defeat the basic principles of democracy

and federalism and make a mockery of the Constitution. It is therefore

of crucial importance to find solutions to avoid such situations.

4. One typical instance of gross delay in the President giving

assent is the Karnataka Education Bill, 1983 which received the assent

of the President after ten long years on 27th

Oct 1993. The Union Home

Minister has stated that 115 Bills from different States are currently

awaiting the assent of the President. It is necessary to shield ourselves

from the glare of immediacy in order to take an objective view and focus

attention on the legal and constitutional issues. In the working and

application of the Constitution our contemplation cannot only be of what

has been but of what may be. Time works changes and brings into

existence new conditions like the present day coalition set up, clash of

political interests and ideologies with different parties being in power at

the Centre and the States. The need and the desirability for the proposed

amendments stem from all this.

5. In this background one needs to recall with some

adaptation what Prof. Atiyah said in another context- that rights and

duties, after all, may exist on paper, but those who are unimpressed by

pieces of paper may still have a healthy respect for justiciability and

- 58 -

enforceability. Hence it will be more appropriate and advisable to have

suitable amendments to the relevant provisions. While all this, as

discussed and pointed out, is justiciable and can be subjected to scrutiny

and correction in judicial review, it being a notoriously time consuming

process it is eminently desirable for the smooth working of the system to

have explicit constitutional provisions in place.

6. In the scheme of parliamentary affairs and the functioning of

parliamentary institutions, once a Bill is passed by the legislature it is

out of its reach. The Presiding Officer- Speaker/Chairman certifies that

the Bill has been duly passed and forwards it to the Governor for assent.

Whatever correspondence that may take place thereafter is between the

Head of State and the Executive Government, an illustration of fusion of

powers and functions in a parliamentary system.

7. Whenever, assent is accorded to the Bill the Secretary

General conveys the information to the Legislature. However, there is

no obligation on the part of the Secretary General to bring it to the

notice of the Legislature inordinate delay in according assent by the

Head of the State. The Legislature however would be certainly

interested in seeing that its efforts culminate in the legislation enacted by

them coming into operation as early as possible. The Legislature would

therefore be vitally concerned if there is inordinate delay in assent being

accorded as per Articles 200 & 201 of the Constitution. Though the

Legislature cannot compel the Governor to accord assent expeditiously,

- 59 -

it can certainly make efforts to persuade by conveying its concern and

request for early according of assent. It can highlight how public

interest suffers by delay. Discussion by the Legislature is bound to

attract media attention and generate public opinion in favour of

expeditious grant of assent. All these factors would contribute to

persuading the Governor to make-up his mind expeditiously. The

Commission, therefore, feels that there should be an obligation on the

part of the Secretary General to bring the fact of delay in according

assent to the notice of the Legislature in a formal way, so that the matter

can be discussed in the Legislature and its views and concerns conveyed

to the Governor.

8. Governor being part of the legislature, assent by him is

necessary to complete the legislative procedure. The proposed

amendments would not violate the basic structure; they would on the

other hand strengthen the democratic and federal fabric which is an

essential feature of the Constitution. They would be in consonance with

the clear intendment of the Constitution makers as reflected in their

debates.

XXIV. AMENDING ARTICLES 200 & 201 OF THE

CONSTITUTION:

Power of amendment of the Constitution is conferred on

Parliament by Articles 368 of the Constitution. The Constitution has not

assigned any role to the State Legislature in the matter of amending the

Constitution. That does not mean that the State Legislature cannot take

- 60 -

any initiative to seek amendment to the Constitution. The State

Legislature is not precluded from persuading the Parliament to amend

any provision of the Constitution which may be necessary in order to

ensure that the powers entrusted by the Constitution to the State

Legislature are not defeated or frustrated by any act of omission or

commission by any of the Constitutional functionaries. In the opinion of

the Law Commission there is nothing to prevent the State Legislature

from discussing the problems of this nature and inviting the attention of

the Parliament to the problems the State is facing and make an

appropriate request to suitably amend the relevant provisions of the

Constitution to remedy the situation. Problem of delay caused by

Governors in according assent is faced by almost all the States.

Therefore, the Legislature of Karnataka State can take initiative for the

benefit of all the States and also request the Government of Karnataka to

persuade the other States to join in making such a request on behalf of

all the States to secure suitable amendments to the relevant provisions of

the Constitution. Members of the Parliament representing the State can

also be persuaded to take initiative to propose suitable amendments to

the Constitution with the support of likeminded members of other States.

When demand is made by large number of States it cannot be ignored

and is bound to yield fruitful outcome.

XXV. With the object of overcoming the problems and

difficulties discussed above, the Law Commission makes the following

recommendations:

- 61 -

RECOMMENDATIONS

1. (i). Article 200 may be amended by adding a

provision to the effect that if the power thereunder is not

exercised by the Governor within three months of

presentation of the Bill to him or within one month of

presentation of the Bill after reconsideration, assent

shall be deemed to have been accorded by the Governor.

(ii). Article 200 may be amended to the effect that the

Governor shall reserve the Bill for consideration of the

President only when the subject matter of Legislation

falls under List III in the Seventh Schedule apart from

the cases where the Constitution required him to do so.

(iii). Article 201 may be amended to the effect that the

President shall declare either that he assents to the Bill

or withholds assent therefrom, within four months of

receipt of the Bill from the Governor, for his

consideration.

(iv). Article 201 may be amended to the effect that

when the President directs the Governor to return the

Bill together with his message to the House/s of

Legislature of the State for reconsideration and the Bill

is presented to him after such reconsideration and no

decision is taken for four months, assent shall be deemed

to have been accorded.

- 62 -

2. The Law Commission recommends that the following

measures be taken until Articles 200 & 201 are suitably

amended:

When assent of the Governor or the

President as the case may be is not accorded

within three months from the respective dates of

presentation of the Bills, the Secretary General

shall prepare a comprehensive report about the

same and take steps with utmost expedition to

place it before both the Houses for a period of

not less than thirty days to enable the

Legislature to take such measures as it considers

just and proper to persuade the Governor or the

President as the case may be to accord assent

with utmost expedition.

* * * * *

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LAW COMMISSION OF KARNATAKA TWENTY SECOND REPORT …