Discretionary powers of Governor

A Bill passed by the State Assembly becomes law only after it is assented to by the Governor. The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.

What is concerning about it?

In all democratic countries, similar provision exists in their constitutions. It may look a bit strange that the law-making body does not have the final say in the process of law making and the Bill it passes gets transformed into law only when the Governor assents to it. Thus, the Governor’s assent becomes the most crucial act in the whole law-making process.

What does the Constitution say?

1. 1. Article 200 of the Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly. He may give assent or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself.
   2. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it. This provision contained in Article 200 (proviso) unambiguously affirms the primacy of the legislature in the legislative exercise.
   3. The third option is to reserve the Bill for the consideration of the President. The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
   4. The fourth option, of course, is to withhold the assent. But it is not normally done by any Governor because it would be an extremely unpopular action. The legislature reflects the will of the people and is the constitutionally designated body to make laws.

• If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.
• The fact that the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill shows that this power should be exercised by the Governor extremely sparingly and after very careful consideration of the consequences of such action.

International examples –

• In this context it would be useful to examine the practice in the United Kingdom. There too royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter. By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
• In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.
• The lesson to be drawn from these practices is that refusal of assent is a practice which is not followed in other democratic countries. And in some contexts, it is unconstitutional or the Constitution itself provides a remedy so that the Bill passed by the legislature could become law even after the refusal of assent.

Issue of challenge –

• Being a high constitutional authority, the Governor cannot act in an arbitrary manner and, therefore, will have to give reasons for refusing to give assent. If the grounds for refusal disclose mala fide or extraneous considerations or ultra vires, the Governor’s action of refusal could be struck down as unconstitutional.
• This point has been settled by a Constitution bench of the Supreme Court in Rameshwar Prasad and Ors. vs Union Of India and Anr. The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.

Conclusion –

We must understand the purpose of giving options is for the authorities to exercise one of them and not to do something which is not an option at all. All constitutional authorities are required to act in a reasonable manner. Unreasonable acts are unsustainable in law.

Source – The Hindu

QUESTION – The gubernatorial powers to exercise discretion in respect of giving assent to bills passed by state legislatures have been questioned by several constitutional experts since independence, but it remains valid even now. However, there has been progress in this direction to make it more informed and constitutional. How? Comment.