Governor Can't Reserve Bill For President's Assent After It Was Re-Enacted By Assembly : Supreme Court

Governor Can't Reserve Bill For President's Assent After It Was Re-Enacted By Assembly : Supreme Court

Gursimran Kaur Bakshi

8 Apr 2025 7:33 PM

In an important judgment interpreting Article 200 of the Constitution, the Supreme Court has held that a Governor cannot reserve a Bill for the assent of the President once it has been re-enacted by the State Legislative Assembly after the Governor had withheld his assent in the first instance.

The Court held that if the Governor has to reserve a Bill for the President's assent, then it must be done at the first instance itself. If a Governor decides to withhold assent for the Bill, then he must mandatorily send it back to the State Assembly. When the Assembly re-enacts the Bill after it was send back by the Governor, then the Governor has no option to reserve it to the President.

A bench of Justices J.B. Pardiwala and R. Mahadevan held that the Tamil Nadu Governor's decision to reserve the 10 Bills for the consideration of the President after they were reenacted by the State Legislature, was illegal and liable to be set aside.

The Court stated that on two accounts, the Governor failed to act in a bona fide manner. First, the Governor had withheld his assent on the Bills but refused to communicate to the State Legislature why he was withholding the assent. Despite that, in the meanwhile, the State Legislature reenacted those Bills.

Second, soon after the Supreme Court pronounced its Punjab Governor's judgment wherein it was stated that the Governor cannot exercise absolute veto and sit over the Bills forever and he must return it to the State Legislature, the Tamil Nadu Governor immediately communicated that he has reserved those re-enacted Bills for the President's consideration.

The judgment authored by Justice Pardiwala stated :

As a general rule, it is not open for the Governor to reserve the Bill for the consideration of the President once it was presented before him in the second round after having been returned to the House previously as per the first proviso(of Article 200). The use of the expression 'shall not withhold assent thereof' appearing in the first proviso places a clear embargo on the Governor and clear enunciation on the requirement that the Governor must accept the Bills which is presented to him after complying with the provisions laid down in the first proviso.

Consequently, the Court stated that it disagreed with the ratio of B.K. Pavithra judgment, also pronounced by the two-judge bench, that the Constitution confers discretion upon the Governor to reserve the Bill for the consideration of the President.

The Court held that the Governor did not have discretion to refer the Bills to President after their re-enactment.

"We say so because of the removal of the expression 'in his discretion' from Section 75 of the Government of India Act, 1935 when it was being adopted as Article 200 of the Constitution clearly indicates that any discretion available to the Governor under the Act 1935 in respect of reservation of Bills became unavailable with the commencement of the Constitution. It also manifests that the decision in B.K. Pavithra is not in consonance with the observations made by the larger bench decision of this Court in Shamsher Singh."

The Court added that the only exception where the Governor can reserve the re-enacted Bills for the consideration of the President is when the Bills presented in the second round are different from those presented in the first round. In such a case, the Governor can exercise either of the three options to assent, withhold the assent or reserve it for the President.

In the facts of the present case, the reservation by the Governor of the 10 Bills for the consideration of the President in the second round would be termed as illegal, errornous in law and liable to be set aside. As a result, any subsequent act taken by the President on the said Bills does not survive and set aside.The Bills having been pending before the Governor for an unduly long period of time and the Governor having acted not bona fides in reserving the Bill for the consideration of the President immediately after the pronouncement of the decision by this Court in the State of Punjab are deemed to have assented by the Governor on the date it was presented to him after reconsideration.

The Court further added that withholding the assent is not an independent power and it has to be read with action to return the Bill to the State Legislature.

The first proviso to Article 200 must be read in conjunction to the option of withholding assent provided in the substantive part of Article 200. It is not an independent course of action and has to be mandatorily initiated by the Governor in cases where the option of withholding the assent is to be exercised. The decision of this Court in State of Punjab lays down the correct position in this regard. The expression "the bills fall through unless the procedure in the first proviso is followed as used in Valluri Basavaiah Chaudhary signifies that once the Governor declares withholding of assent, and returns the Bill to House or Houses, the Bill would lapse or fall through unless the House or Houses reconsider the Bill in accordance with suggestions made by the Governor and presented to him after re-passing.

The expression unless the procedure under first proviso is followed, it cannot be construed to mean that the Governor exercises discretion in sitting the machinery prescribed in first proviso in motion. Once the Governor exercises the option of withholding the assent, he is under an obligation to follow the procedure prescribed under the first proviso 'as soon as possible'. The decision of this Court in State of Punjab cannot be said to be per incurim. The observations made in the decision in regards to attaching of the first proviso with the option of withholding the assent is supported in the decision of Valluri Basavaiah Chaudhary.