'Why TN Governor Unable To Decide On Bills & Referring Them To President?
We Want To Know' : Supreme Court Hears Tamil Nadu Govt's Pleas
4 Feb 2025 7:35 PM
The Supreme Court today(February 4) heard the two writ petitions filed by the Tamil Nadu Government against the Governor, Dr. RN Ravi, for withholding assent for the bills(some of which relate to removing the Governor from the post of Vice-Chancellor of the various universities) passed by the Legislative Assembly between 2020 and 2023. They were submitted for the Governor's assent between January 13, 2020, and April 28, 2023.
Several files relating to the decision of the Government regarding the grant of premature release of prisoners, sanction for prosecution and the appointment of members of the Tamil Nadu Service Commission are also pending approval before the Governor. They were submitted between April 10, 2022 and 15 May, 2023.
As per the chronology of the events, on November 13, 2023, the Governor declared he was withholding assent on 10 Bills. Following this, the Tamil Nadu Legislative Assembly convened a special session on November 18, 2023 and re-enacted those Bills.
While the matter was sub-judice, on November 28, the Governor referred some Bills to the President, after the Assembly re-enacted them following the Governor's earlier declaration that he was withholding his assent. This was after the Supreme Court had questioned the Governor for sitting over Bills pending his assent since January 2020. In fact, in November 2023, when the notice was issued in the first writ petition, the Court termed the Governor's inaction a "matter of serious concern".
Today, before a bench of Justices J.B. Pardiwala and R. Mahadevan, Senior Advocates Mukul Rohatgi (appearing for Tamil Nadu Government in the first petition) and Abhishek Manu Singhvi (appearing for Tamil Nadu Government in the second writ petition) both discussed the interpretation of Article 200.
Mukul Rohatgi's arguments
Rohatgi argued that once the Governor says that he was withholding assent, the option of sending those bills to the President for reconsideration does not arise and the Governor is bound to give assent after the assembly re-enacts the bills. He added: "If he[Governor] does not do that, the entire system of democracy fails."
Rohatgi argued that is nothing but a "subversion" to the Constitution. He has prayed for the Court to make a declaration that the Governor did not act in accordance with Article 200.
It should be noted that when the Tamil Nadu matter was filed, a similar issue in the State of Punjab was going on. On November 23, 2023, a bench headed by former Chief Justice of India D.Y. Chandrachud, comprising Justices Pardiwala and Manoj Misra observed that if a Governor decides to withhold assent to the Bill, then he has to return the Bill to the legislature for reconsideration. This was to clarify a situation which may not be explicitly stated in the Constitution as to what is to be done after the Governor withholds the assent for a Bill.
Justice Pardiwala inquired what happens to a situation where the Bill is sent to the State legislature and is re-enacted but not to the satisfaction of the Governor. Rohatgi responded: "He has no choice. Suppose he says the whole Bill is unconstitutional or parts require a review. He sends it back with this message, then this will be deliberated by the House. The House after that message either accepts his views and amends the Act or go by its decision. Otherwise, the system of democracy will fail in this country. One hand, there are crores of people and on the other, there are delegates who are doing their job. The one person, however high its office may be, he has to according to the Constitution."
Singhvi's arguments
Singhvi argued that this was a case of the Governor simply doing "nothing". As per Singhvi, in the first part of Article 200, he can grant assent or send it to the President for reconsideration. The option of referring to the President has to be done at the first instance and not as an afterthought.
Now, the Governor can exercise the option of sending it back to the State legislature as per the first proviso (this is what is referred to as withholding the assent). If he does so, and if the State legislature reconsiders it and sends it back, the Governor has "no option but to grant assent". After this stage, the Governor no longer can reserve the bill for the President's assent. Singhvi added that however in the rare exception, as envisaged in the last proviso, the Governor can do so if the Bill intends to derogate the powers of the High Court.
When Justice Paradiwala questioned if the second proviso is a proviso to the first proviso, Singhvi answered it affirmatively. That is, the only exception to 'shall not withhold assent' in first proviso is the second proviso which relates to the High Court issue.
Further, Singhvi referred to the November 23 order and argued that despite the matter being sub-judice, on November 28, the reenacted Bills were sent to the President in the second round of referral.
As against this, the Attorney General of India R. Venkataramani, in one of those hearings, had stated that the proviso where the Bill is sent for the State legislature for reconsideration can only be exercised when the Governor returns the Bill which did not happen in this case. Today as well, Venkataramani clarified that the Bills were returned not for re-enactment but the Governor had simply clarified that he is withholding assent. He said: "Once he withholds assent, it does not fall under the first proviso."
At one point in time, Justice Pardiwala was interested to know what is the scheme of sending the Bills to the President by the Governor. He added: "Why is the Governor unable to take decision and why is he referring to the President of the country? We would like to understand...Now, a third thing has come that I outright decline to grant 'assent'. Rightly or wrongly, the Governor says so that I am not referring it to the assembly also I am not sending it to the President. But I am not granting 'assent'..This is what it appears it has happened here."
Singhvi responded: "He is creating a new Constitution for himself...The argument not at all sanctified by the Constitution and never accepted is that I told the assembly I am withholding assent. That does not amount to Bills being reenacted. And it allows a reference to the President. That is nothing illegal argument...See the violence it takes place by tinkering like this with the Constitution."
Reference was made to the 1974 judgment of the Shamsher Singh & Anr vs State Of Punjab on the constitutional interpretation of Article 200. Senior Advocate P. Wilson also made brief submissions and referred to the Supreme Court earlier chastising the Governor for not administering oath to a Minister after his conviction was suspended.
In the first matter against the sitting Governor, the issue raised by the Tamil Nadu Government is that the Governor has been sitting over several bills passed by the legislature and files submitted by the State Government. It has been argued that as per Article 200 of the Indian Constitution, the Governor is obliged to return the Bill "as soon as possible". It is the State's plea that the Governor is acting as "political rival" which has resulted in a "constitutional deadlock".
In another matter, the Tamil Nadu Government has challenged the three notifications unilaterally issued by the Governor for constituting search-and-selection committees for the appointment of Vice-Chancellor in the Bharathiar University, Tamil Nadu Teachers Education University and Madras University.
The Court will continue to hear the matter on Thursday where the Attorney General for India R Venkataramani will argue for Governor.
As the bench was about to rise, Justice Pardiwala told AG to make efforts to resolve the issue "over a cup of tea" in the next twenty-four hours. If there is no breakthrough, the matter will be decided as per merits, the judge said.
Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023 & THE STATE OF TAMIL NADU v. THE VICE CHANCELLOR AND ORS| W.P.(C) No. 1271/2023 [notice not issued]
