The State Of Tamil Nadu vs. The Governor Of Tamilnadu

REPORTABLE


IN THE SUPREME COURT OF INDIA
2025 INSC 481
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1239 OF 2023


THE STATE OF TAMIL NADU …PETITIONER(S)


VERSUS


THE GOVERNOR OF TAMILNADU & ANR. …RESPONDENT(S)









J U D G M E N T





Signature Not Verified

Digitally signed by
VISHAL ANAND
Date: 2025.04.11
22:52:49 IST
Reason:


J.B. PARDIWALA, J.
For the convenience of the exposition, this judgment is divided in the following
parts:
INDEX
A. FACTUAL MATRIX ................................................................................... 5
i. Factual background with respect to assent to bills. ..................................... 5

ii. Factual background with respect to accord of sanction for investigation into
cases of corruption against public servants. .............................................. 17
iii. Factual background with respect to the files pertaining to premature release
of prisoners. ............................................................................................... 19
iv. Factual background with respect to the appointments to the Tamil Nadu
Public Service Commission (TNPSC). ..................................................... 20

v. Factual background with respect to dismissal of ministers and allocation of
ministries. .................................................................................................. 22
B. SUBMISSIONS OF THE PARTIES ........................................................ 25
i. Submissions on behalf of the Petitioner .................................................... 25
ii. Submissions on behalf of the Respondents ............................................... 54
C. ISSUES FOR CONSIDERATION ............................................................ 61
D. ASSENT TO BILLS – HISTORICAL BACKGROUND ....................... 65
i. Concept of assent to bills as envisaged by certain historical documents

drafted during the freedom struggle. ......................................................... 79

ii. Debates of the Constituent Assembly on Article 200 of the Constitution 91
E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS POST
THE COMMENCEMENT OF THE CONSTITUTION. ....................... 99
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i. First Administrative Reforms Commission, 1966. .................................. 100
ii. Rajamannar Commission, 1971............................................................... 102
iii. Sarkaria Commission ............................................................................... 105
iv. Punchhi Commission ............................................................................... 121
F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS .... 128

G. ANALYSIS ................................................................................................ 145
i. What courses of action are available to the Governor in exercise of his

powers under Article 200 of the Constitution? ....................................... 145
ii. Whether the Governor can reserve a Bill for the consideration of the
President when it is presented to him for assent after being reconsidered in
accordance with the first proviso to Article 200, more particularly, when he
had not reserved it for the consideration of the President in the first
instance? .................................................................................................. 168

iii. Whether there is an express constitutionally prescribed time-limit within
which the Governor is required to act in the exercise of his powers under
Article 200 of the Constitution? .............................................................. 174
iv. Whether the Governor in the exercise of his powers under Article 200 can
only act in accordance with the aid and advice tendered to him by the State
Council of Ministers? .............................................................................. 213
a. The Office of the Governor ............................................................... 216

b. Constituent Assembly Debates on the mode of Selection of the
Governor ............................................................................................ 218
c. Constituent Assembly Debates on the Exercise of Discretion by the
Governor ............................................................................................ 227
d. The decision of this Court in B.K. Pavitra (supra) is per incuriam . 263

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v. Whether the exercise of discretion by the Governor in discharge of his
functions under Article 200 could be said to be subject to judicial review?
If yes, what are the parameters for such judicial review? ....................... 280
vi. What is the manner in which the President under Article 201 of the
Constitution is required to act once a Bill has been reserved for his
consideration by the Governor under Article 200 of the Constitution? .. 340
vii. On Exercise of Article 142. ..................................................................... 382
H. CONCLUSION ......................................................................................... 387


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1. While the framers of the Constitution set out with a vision that the Governor
would be a “constitutional head, a sagacious counselor and adviser to the
1
Ministry” , someone who can “pour oil over troubled waters”, what has
unfolded before us in the instant litigation has been quite the opposite, as
this Court has been called upon to calm the troubled waters stirred by the
ensuing long-drawn battle of a high constitutional order between the
petitioner and the respondent.

2. The State of Tamil Nadu, being aggrieved by the action of the Governor on
few issues of prime public importance, has invoked the jurisdiction of this
Court under Article 32 of the Constitution seeking appropriate reliefs as
prayed for in the writ petition. The petitioner is aggrieved by the action, or
rather inaction, on part of the Governor of Tamil Nadu in discharge of the
following functions:
(i) Withholding of assent to and reserving for consideration of the
President, by the Governor of 10 Bills enacted by the Legislature for
the State of Tamil Nadu.
(ii) Inaction on files submitted to the Governor for according sanction to
prosecute public servants and investigate various crimes of corruption
involving moral turpitude.

1
8, C ONSTITUENT A SSEMB . D EB ., (May 30, 1949) 431.
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(iii) Pendency of a number of files submitted to the Governor for premature
release of prisoners.
(iv) Pendency of proposals submitted to the Governor for appointment of
members to the Tamil Nadu Public Service Commission under Article
316 of the Constitution.

A. FACTUAL MATRIX

i. Factual background with respect to assent to bills.

3. The Legislature for the State of Tamil Nadu, between 13.01.2020 and
28.04.2023, enacted and forwarded 12 Bills to the Governor for grant of
assent as per Article 200 of the Constitution. Even though the present
Governor took charge of the office with effect from 18.11.2021, yet he did
not take the necessary action on any of the said Bills forwarded to his office
till October 2023. The petitioner, being aggrieved by the inaction on part of
the Governor, had to ultimately file the present writ petition before this
Court. The same was filed on 31.10.2023.

4. This Court issued notice to the respondents on 10.11.2023. The Governor,
forthwith, took a decision on the 12 Bills on 13.11.2023 by withholding
assent simpliciter to 10 bills i.e., he did not convey any message to the State
Legislature for reconsideration of the said Bills as prescribed under the first
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proviso to Article 200, and by reserving two Bills for the consideration of
the President. The 10 bills for which assent was withheld were returned to
the State Legislature by the Governor.

5. The State Legislature, on 18.11.2023, convened a special session and
repassed the 10 bills which were returned by the Governor after withholding
of assent. The bills were passed without any material change and were
forwarded to the Governor’s Secretariat on the same day for his assent in
accordance with the first proviso to Article 200. This Court, in its order dated
20.11.2023, noted that since the repassed 10 bills were pending with the
Governor, the hearing of the writ petition be adjourned to 01.12.2023 and
issued directions that this Court shall be apprised of the progress in the
matter.

6. On 28.11.2023, the Governor, without the aid and advice of the Council of
Ministers of the State, in exercise of his discretion, reserved the said
repassed Bills for the consideration of the President. The letter of the
Governor to the Union Government referring the said Bills for the
consideration of the President mentioned that the Bills were re-considered
and passed again by the State Legislature. Interestingly, although the
Governor noted that the Bills were intra-vires the competence of the State
Legislature having been legislated under Entry 66 of List I, Entry 32 of List
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II and Entry 25 of List III, yet he reserved the said Bills for the consideration
of the President in the second round on the ground that the Bills suffered
from repugnancy on account of being contrary to Entry 66 of the Union List
i.e., List I. These grounds have been taken by the Governor to reserve the 10
Bills for consideration of the President. For reference, we have extracted the
relevant portion of the letter pertaining to the Tamil Nadu Fisheries
University (Amendment) Bill, 2023 which reads thus:
“ I am directed to state that the Tamil Nadu Legislative
Assembly has passed the Tamil Nadu Fisheries University
(Amendment) Bill, 2023 (LA Bill No.15 of 2023) on 21.4.2023
and sent to the Hon'ble Governor for assent . Hon'ble
Governor has returned the Bill with the following remarks –

"I withhold assent".

2. The State Government have reconsidered the said Bill and
again passed in the Tamil Nadu Legislative Assembly on
18.11.2023 and sent to Hon'ble Governor for assent.

3. In this regard, I am directed to inform that a Background
Note on Reserving the Bills for the consideration of Hon'ble
President regarding University Bills which has been
approved by the Hon'ble Governor is enclosed, since, co-
ordination. and determination of standards in institutions of
higher education or research and scientific and technical
institutions Is in Entry No.66 of the Union List of the Seventh
Schedule of the Constitution, the Bills suffer from
repugnancy. Hence, the Hon'ble Governor has reserved the
Bill viz. Tamil Nadu Fisheries University (Amendment) BIii,
2023 (LA Bill No.15 of 2023) for the consideration of the
Hon'ble President.

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4. The Bill falls, mainly, within the scope of the following
entries of the Union, State and Concurrent. Lists In the
Seventh Schedule to the Constitution, namely-

UNION LIST
Entry 66·- Co-ordination and determination of standards in
institutions for higher education or research and scientific
and technical institutions.

STATE LIST
Entry 32 -- Incorporation, regulation and winding up of
corporations, other than those specified in List-I and
Universities;
CONCURRENT LIST
Entry 25 -- Education, including technical education,
medical education and universities and is intra-vires the
State Legislature.

5. I am, therefore, directed. to request to take appropriate
action for the Bill to have consideration of the Hon'ble
President.”


7. The Governor, on 04.12.2023, also sought to clarify that the 10 Bills to
which he had withheld assent simpliciter were not returned to the Legislature
for reconsideration as stipulated in the first proviso of Article 200. Despite
that, the State Government had placed the Bills before the legislative
assembly again. After the Bills were repassed by the legislative assembly,
the State Government sent the same back to the Governor for assent. The
Governor clarified that since the Bills suffered from repugnancy, he was
reserving the said Bills for the consideration of the President. These
clarifications were sent for all the 10 Bills. For reference, we have extracted
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the relevant portion of the letter pertaining to the Tamil Nadu Fisheries
University (Amendment) Bill, 2023 which reads thus:
“Kindly refer our letter dated 28.11.2023.

2.⁠ ⁠I am now directed to elaborate further on the
circumstances under which the Bill was requested to be
placed before the Hon'ble President for consideration. When
the, The Tamil Nadu Fisheries University (Amendment) Bill,
2020 (LA Bill No. 2 of 2020) passed by the Tamil Nadu
Legislative Assembly on 09.01.2020 was sent to the Hon'ble
Governor for his essent, the Hon'ble Governor has exercised
his substantive powers under Article 200 of the Constitution
and took decision of withholding his assent to the Bill and the
file was returned to the Law Department of the State
Government, conveying the decision of the Governor "I
Withhold assent". It is clarified that the Bills was not returned
for re-consideration as stipulated in the proviso to Article
200 of the Constitution.

3.⁠ ⁠While withholding his assent, the Hon'ble Governor has
relied on the position held by the five member bench
(Constitution Bench) of the Hon'ble Supreme Court in Union
of India and others Vs. Valluri Basavalah Chowdhary and
others and Maharao Sahit Shri Bhim Singhi Vs. Union of
India and others. (Civil Appeal No's 1896 of 1976, 265-300
of 1977, 29-38 of 1977 and 5 of 1977 and W.P. No. 350 of
1977, decided on May 1, 1979) where it has been stated In
Para 19:

"The Governor is, however, made a component part of the
legislature of a State under Article 168, because every Bill
passed by the State Legislature has to be reserved for the
assent under Article 200. Under that article, the Governor
can adopt one of the three courses, namely (i) he may give his
assent to it, in which case the Bill becomes a law; or (ii) he
may, except In the case of a 'Money Bill', withhold his assent
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therefrom, In which case the Bill falls through unless the
procedure indicated in the first proviso is followed, I.e. return
the Bill to the Assembly for reconsideration with a message,
or (iii) he may (subject to Ministerial advice) reserve the Bill
for the consideration of the President, in which case the
President will adopt the procedure laid down In Article 201".

4.⁠ ⁠However, State Government placed the Bill again in the
Legislative Assembly and after getting Assembly's
endorsement, sent them again to the Hon'ble Governor on
18.11.2023.

5.⁠ ⁠The Hon'ble Governor had not returned the Bills under the
proviso to Article 200 for re-consideration, however, State
Government has sent them back. Since the Bill suffers from
repugnancy, Hon'ble Governor has reserved the same for the
consideration of the Hon'ble President.”


8. In view of the reservation of the 10 Bills for the consideration of the
President, the petitioner filed the I.A. No. 259020 of 2023 on 11.12.2023,
seeking amendment of the prayers of the present writ petition and prayed for
insertion of the following prayer:
“Pass any writ/order or direction to declare that the action
of the Governor of Tamil Nadu/ first Respondent of reserving
the following Bills 1. Bill No 2/2020 namely “A Bill further
to amend the Tamil Nadu Fisheries University Act, 2012”, 2.
Bill No 12/2020 namely “A Bill further to amend the Tamil
Nadu Veterinary and Animal Sciences University Act, 1989”,
3. Bill No 24/2022 namely “The bill to amend the Universities
laws. The Vice-Chancellors of all Universities (except
University of Madras)”, 4. Bill No 29/2022 namely “A Bill
further to amend the Tamil Nadu Dr. Ambedkar Law
University Act, 1996”, 5. Bill No 39/2022 namely “A Bill
further to amend the Tamil Nadu Dr. M.G.R. Medical
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University, Chennai, Act, 1987”, 6. Bill No 40/2022 namely
“A Bill further to amend the Tamil Nadu Agricultural
University Act, 1971”, 7. Bill No 48/2022 namely “A bill
further to amend the Tamil Nadu Universities Laws”, 8. Bill
No 55/2022 namely “A Bill further to amend the Tamil
University Act, 1982”, 9. Bill No 15/2023 namely “A Bill
further to amend the Tamil Fisheries University Act, 2012”,
10. Bill No 18/2023 namely “A Bill further to amend the
Tamil Nadu Veterinary and Animal Sciences University Act,
1989” for the consideration of the President qua the Bills
passed and forwarded by the Tamil Nadu State Legislature to
him as unconstitutional, illegal, arbitrary, unreasonable
besides malafide exercise of power and/or to quash the being
ultra- vires Articles 14, 19 and 21 read with Article 200 of
the Constitution and direct the Respondent-1 to declare
assent to the same.”



9. Thus, what was sought to be conveyed by the aforesaid I.A. was that the 10
Bills were reconsidered and passed again by the State Legislature and were
thereafter forwarded to the Governor for his assent in terms of the first
proviso to Article 200. However, the Governor reserved the said Bills for
the consideration of the President. It was alleged that such action on the part
of the Governor was violative of Article 200 and was done with a mala fide
intention only with a view to circumvent the jurisdiction of this Court.
10. Upon the suggestion made by this Court, the Governor, on 12.12.2023 wrote
to the Chief Minister for the State of Tamil Nadu inviting him to a meeting
in an attempt to resolve the deadlock. The Governor and the Chief Minister
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met on 30.12.2023, pursuant to which the Chief Minister submitted a
representation summarising the following issues:
a. The Bills could not have been reserved for the consideration of the
President after the decision of this Court in State of Punjab v.
Principal Secretary to the Governor of Punjab reported in (2024) 1
SCC 384 , wherein it was held that once the Governor decides to
exercise the power of withholding assent to a bill, the operation of
the first proviso to Article 200 has to necessarily follow.
b. Article 200 does not confer any power upon the Governor to exercise
the option of reserving a bill for Presidential consideration after a
bill has been reconsidered and repassed by the State Legislature.
Since, the 10 Bills in the present case were reconsidered and passed
again by the State legislature, the only constitutionally permissible
option for the Governor was to grant assent.
c. The Governor also acted in contravention of the aid and advice of
the Council of Ministers that “ the Bill repassed by the Legislative
Assembly should be assented to by the Hon’ble Governor without
withholding assent ”, which is ultra vires of the Constitution.

11. In light of the above representation, the Chief Minister requested the
Governor to:
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(i) Recall the 10 Bills reserved for the consideration of the President and
grant assent expeditiously;
(ii) In future, grant assent to Bills passed by the State Legislature within 30
days and avoid unnecessary reservation of the bills for the
consideration of the President;
(iii) Act in accordance with the aid and advice tendered by the Council of

Ministers.

12. Out of the 10 Bills reserved for her consideration, the President withheld
assent to seven Bills, granted assent to one Bill and is yet to consider the
remaining two Bills.

13. The status of the Bills is summarized below:

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ii. Factual background with respect to accord of sanction for investigation
into cases of corruption against public servants.

14. Between 10.04.2022 and 15.05.2023, the Government of Tamil Nadu
submitted to the Governor, four files relating to the prosecution of public
servants involved in crimes of moral turpitude under the Prevention of
Corruption Act, 1988, which at the time of filing of the writ petition
remained pending with the Governor.

15. It is only upon the present writ petition being filed and issuance of notice
that the Governor’s office started acting upon the files. The Governor, on
01.12.2023, submitted the factual position regarding the bills, files and other
cases pending with his office detailing the actions taken thereupon. The
details of the files requesting for sanction to investigate and prosecute and
the Governor’s actions thereupon are summarised below:

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iii. Factual background with respect to the files pertaining to premature
release of prisoners.

16. The petitioner forwarded 53 files pertaining to the premature release of
prisoners to the Governor between June and August 2023 requesting
approval thereof.

17. In response to the allegation of delay and pendency on the said files, the
office of the Governor represented before this Court that since September
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2021, i.e., from the date the present Governor assumed office, 580 proposals
regarding premature release of prisoners were received out of which 362
files were approved, 165 files were rejected and 53 were under
consideration.

18. The Governor informed in the backdrop of the factual position prevailing on
01.12.2023 that the 53 files that remained pending were recent proposals
sent by the petitioner only between June and August 2023. This Court has
not been apprised of the status of these files after 01.12.2023 by any of the
parties.

iv. Factual background with respect to the appointments to the Tamil
Nadu Public Service Commission (TNPSC).

19. It is the case of the petitioner that it was represented before the Governor by
way of various representations that as per Regulation 3 of the Tamil Nadu
Public Service Commission Regulations, 1954, the Commission shall
consist of a Chairman and 14 Members. However, no heed was paid to such
representations. The functioning strength of TNPSC was of four members
on the date of filing of the present petition.

20. In regard to the aforesaid, the petitioner forwarded representations to the
Governor’s office seeking approval of the proposed names for the position
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of members in TNPSC and carrying out their appointments. The petitioner
also sent reminders to the Principal Secretary to the Governor for acting on
the files sent to the Governor’s office in this respect.

21. The Governor, on 27.09.2023, returned the said files with a note raising
some queries regarding transparency in the selection process, tenure of the
members to be appointed and credentials of the proposed candidates. The
Governor clarified that as the queries raised by his office were not addressed
by the petitioner, the proposal for appointment of the recommended
candidates was being returned and the same was no longer pending before
him. This happened on 26.10.2023.

22. The petitioner, on the other hand, has averred in its writ petition that such
queries were against the established practices to the selection of
constitutional posts and that the availability of the chairman and members in
the TNPSC was essential to monitor and expedite various recruitment
processes as well as promotions. Delays in appointments to the TNPSC
resulted in non-availability of sufficient members, which detrimentally
affected the functioning of the Executive.

23. The petitioner explained this position and also addressed the queries raised
by the Governor in its clarification note dated 07.10.2023. The files for
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approval of appointments were accordingly re-submitted on 10.10.2023,
however, the same were returned by the Governor on 27.10.2023 without
assigning any reasons.


v. Factual background with respect to dismissal of ministers and
allocation of ministries.

24. On 29.06.2023, the Governor suo moto and contrary to the aid and advice of
the State Council of Ministers recommended the dismissal and divestment
of portfolio of Senthil Balaji, a minister in the Tamil Nadu Cabinet on the
ground that he was arrested by the Enforcement Directorate and was in
judicial custody. However, the Governor addressed another letter to the
Chief Minister on the very same day informing that he had kept the dismissal
of Senthil Balaji in abeyance till further communication in light of the advice
of the Union Minister of Home Affairs that it would be prudent to seek the
opinion of the Attorney General on the matter.

25. In a similar case, Dr. K. Ponmudy, a minister in the Government of Tamil
Nadu was convicted and sentenced by the Madras High Court against which,
he filed an appeal before this Court. This Court, vide order dated 11.03.2024,
suspended the conviction of Dr. K. Ponmudy from its operation keeping in
view Section 8(3) of the Representation of People’s Act, 1951 and more
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particularly for the reason that he should not suffer disqualification from the
office of Member of Legislative Assembly.

26. Accordingly, on 13.03.2024, the Speaker of the State Legislative Assembly
declared that the disqualification ceased to operate with effect from
19.12.2023. The Election Commission also withdrew the notification of
vacancy for his constituency.

27. The Chief Minister wrote to the Governor on 13.03.2024 to swear in Dr. K.
Ponmudy as a Minister and allot to him the portfolio of Higher Education.
However, the Governor vide the letter dated 17.03.2024, declined the request
stating that the conviction order was suspended from its operation by way
of ‘interim relief’ granted by this Court which meant that the conviction
against Dr. Ponmudy, though existent, had been made non-operative and not
set aside. The Governor also stated that the re-introduction of Dr. K.
Ponmudy in the Cabinet would be against “constitutional morality”.

28. Consequently, the petitioner was constrained to file I.A. No. 69967 of 2024
on 18.03.2024 to amend its prayer in the present writ petition for including
the relief of staying the operation of the Governor’s letter dated 17.03.2024
and directing him to administer the oath of office and secrecy to Dr. K.
Ponmudy. The amendment sought to be made reads thus:
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“It is therefore, most respectfully prayed that this Hon’ble
Court may be pleased to:

a) Grant permission to amend the prayer in the above W.P.
No. 1239 of 2023 and add the following prayer:

“f. Call for the records of the 1st Respondent
pertaining to Letter No. 007/RBTN/ 2024 dated
17.03.2024 and quash the same and direct the 1st
Respondent to act in accordance with the letter of the
Hon’ble Chief Minister of Tamil Nadu in D.O. Letter
No. 952/CMO/2024 dated 13.03.2024 and
consequently to appoint Thiru K. Ponmudi, Member
of Tamil Nadu Legislative Assembly as a Minister of
the Government of Tamil Nadu by administering oath
of office and secrecy with the portfolios specified in
the letter of the Hon’ble Chief Minister of Tamil Nadu
in D.O. Letter No. 952/CMO/2024 dated 13.03.2024
and consequently to change the portfolios among
Hon’ble Ministers”

b) Pass such other or further order as this Hon’ble Court may
deem fit and proper in the facts and circumstances of the
present case.”

29. This Court heard the application on 22.03.2024 and expressed its displeasure
at the reluctance of the Governor to accept the order of this Court dated
11.03.2024 suspending the sentence of Dr. K. Ponmudy. This prompted the
Governor to swear in Dr. K. Ponmudy as Minister in the State Cabinet and
the I.A. was disposed of accordingly recording the same.

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30. In the aforesaid factual matrix, the petitioner have prayed for a declaration
that the reservation of the bills by the Governor for the consideration of the
President after they were repassed by the State Legislature and presented
before him as illegal. Further, as a sequitur, the petitioner have prayed that
the act of withholding of assent by the President be declared as void ab-
initio . The petitioner have also prayed for a declaration that the simpliciter
withholding of assent by the Governor without following the procedure
prescribed in the first proviso to Article 200, be also declared to be illegal
for being in contravention to the position of law as laid down in State of
Punjab (supra) . The petitioner have also prayed for a direction to the
Governor to accord sanction for prosecution, take prompt decision on the
pending files pertaining to grant of remission and to clear the proposal for
appointment of members to the TNPSC.

B. SUBMISSIONS OF THE PARTIES

i. Submissions on behalf of the Petitioner

31. Mr. Rakesh Dwivedi, the learned Senior Counsel appearing for the
petitioner, made elaborate submissions on the following aspects:

a) Apparent Constitutional errors committed by the Governor.
i) Pocket veto is not available under the Indian constitutional scheme.
The Governor could not have kept the Bills submitted to him
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between the years 2020 and 2023 in a cold storage without taking
any decision on them. The fact that he entered no discussion with
the State Government or the Chief Minister in relation to the Bills
submitted to him further indicates that the Governor exercised
pocket veto in relation to the said Bills, thereby bringing the
constitutional machinery to a standstill. He submitted that the
substantive part of Article 200 uses the expression “shall declare”
which indicates that the function of the Governor is mandatory. The
underlying objective of Article 200 is to make a Bill operative as
an Act. Therefore, the scheme of Article 200 negates the possibility
of engaging in inordinate delay or pocket veto.


ii) The Governor failed to take note of the decision of this Court in
State of Punjab (supra) . Although the said decision held that the
first proviso to Article 200 attaches to the option of withholding
assent, yet the Governor recorded a simpliciter finding of
withholding assent without conveying any message to the State
Legislature, as provided under the first proviso. He submitted that
simpliciter withholding of assent by the Governor is also violative
of Article 14 which mandates that the exercise of Constitutional
powers should be based on reason and transparency. The State
Legislature must be told why the assent has been withheld so as to
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enable it to reconsider the Bill. He further submitted that in the
absence of any message, it would be open to the State Legislature
to understand that the Governor wishes the entire Bill to be
reconsidered.


iii) On the facts of the present case, Mr. Dwivedi submitted that having
recorded that the Bills submitted to him were intra vires of the State
Legislature, it was not open to the Governor to reserve the Bills for
the consideration of the President upon being repassed and
presented again before him. He submitted that once the reservation
of the Bills for the consideration of the President is found to be
erroneous in law, any subsequent withholding of assent by the
President would also be legally vitiated.


iv) He submitted that even the withholding of assent by the President
under Article 201 was by way of a non-speaking order and thus
does not comply with the first proviso to the Article. Similar to
Article 200, the withholding of assent under Article 201 must
necessarily result in a message under the first proviso. He
summarised his arguments on this aspect by submitting that the acts
of simpliciter withholding, reserving for the consideration of the
President, delay by Governor, as well as simpliciter withholding of
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assent by the President are all unconstitutional, and hence null and
void.
b) Justiciability and Judicial Review.
i) Mr. Dwivedi submitted that no constitutional power vested in any
authority, howsoever high, is beyond the powers of judicial review
of the constitutional courts. The scope of judicial review may vary,
but no power is beyond the purview of the courts. The Courts may
exercise restraint, but that is not to say that if the power has been
exercised unconstitutionally, manifestly arbitrarily, in breach of
fundamental rights enshrined in Part III or any other provision of
the Constitution, or in a mala fide manner, the courts would be
prohibited from striking down the exercise of such power.

ii) In furtherance of the aforesaid submission, he drew our attention to
the decision in S.R. Bommai v. Union of India reported in (1994)
3 SCC 1 wherein the justiciability of a proclamation under Article
356 was propounded. He also relied upon the decisions of this
Court in Rameshwar Prasad v. Union of India reported in (2006)
2 SCC 1 and Kihoto Holohan v. Zachillhu reported in 1992 Supp
(2) SCC 651 wherein the exercise of power of the Governor to
invite the leader of the majority party to form government and the
W.P. (C) No. 1239 of 2023 Page 28 of 414

power of the Speaker under the 10th Schedule to the Constitution
were respectively held to be justiciable by this Court.


iii) In light of the aforesaid, he submitted that the position of law as on
date, as explained by several Constitutional Bench decisions, is
clear that no exercise of Constitutional power is outside the ambit
of judicial review. No power is absolute and non-justiciable. Hence,
the power exercised under Article 200 can also be examined by this
court to discern any unconstitutionality.
c) Governor is required to act upon the aid and advice of the Council
of Ministers.

i) Mr. Dwivedi submitted that the various provisions of the
Constitution stand in harmony and are interdependent. They are not
isolated silos. They share the ultimate objective of harmonious
Parliamentary governance, seek welfare of the people and
implement Parliamentary form of democracy within a federal
system. Therefore, interpretation of a Constitutional provision
should accord with these fundamental principles and the basic
structure of the Constitution.


ii) He submitted that this Court has been consistent in its approach
while interpreting the constitutional provisions, more particularly
W.P. (C) No. 1239 of 2023 Page 29 of 414

those that pertain to the Governor or the President, in light of the
fundamental principles of Parliamentary democracy and
federalism. He placed reliance on the decisions of this Court in
Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831 ,
S.R. Bommai (supra) , Nabam Rebia & Bamang Felix v. Dy.
Speaker, Arunachal Pradesh Legislative Assembly reported in
(2016) 8 SCC 1 in support of the aforesaid submission.

iii) He further submitted that the discretion of the Governor under the
Indian Constitution is governed solely by Article 163(1) and the
interpretation adopted by this Court has been such which does not
make the Governor dominant over the Chief Minister, who is an
elected representative of the people.


iv) Article 200 embodies an aspect of legislative procedure so as to
make a Bill operative as an Act. Seen thus, it is imperative that the
Governor acts upon the aid and advice of the Council of Ministers
when exercising his power under Article 200.


v) Taking us through the historical background in which Article 200
came to be drafted, Mr. Dwivedi submitted that Section 75 was the
provision corresponding to Article 200 in the Government of India
Act, 1935. However, in Section 75 the expressions “Governor in
W.P. (C) No. 1239 of 2023 Page 30 of 414

his discretion” and “Governor may, in his discretion” were
deployed in the substantive part and the proviso respectively. Later
on, when the draft of the Constitution was prepared by the
constitutional advisor, the expression “Governor in his discretion”
was dropped from the substantive part of Article 147 (predecessor
of draft Article 175), but the expression “Governor may, in his
discretion” was retained in the proviso. The same position
continued in Article 175 of the Draft Constitution, 1948
(hereinafter, “ the Draft Constitution ”) (predecessor of Article
200) presented before the Constituent Assembly. However,
ultimately, the expression conferring discretion was dropped and
Article 200 came to be adopted in its present form. He submitted
that the reason for this was explained by Dr. Ambedkar who said
that there can be no room for the Governor to act on his discretion
in a responsible form of government. Further, it was explained by
Mr. T.T. Krishnamachari that the returning of the Bill to the
Legislature will only be upon the advice of the Council of Ministers
and not on the personal discretion of the Governor.


vi) Mr. Dwivedi submitted that issues of repugnance of State
legislation with a Central enactment are not of easy determination
and the only method of discourse between the Governor and the
W.P. (C) No. 1239 of 2023 Page 31 of 414

State Legislature is provided in the first proviso to Article 200.
Hence, simpliciter withholding of assent without taking recourse to
the first proviso ought to be rejected by the Courts and compliance
with the first proviso ought to be mandated in every case of
withholding of assent. Furthermore, issues of repugnance should be
left for the constitutional courts to decide.


vii) The interpretation of Article 200 must be done in line with the
intent of the framers of the Constitution which is evident from the
Constituent Assembly Debates. The only instance where this Court
adopted an approach contrary to the one suggested by the
Constituent Assembly pertained to the appointment of Judges to the
High Court and this Court and that approach was adopted to
preserve the independence of the judiciary, which is part of the
basic structure. However, in the present case, there is no compelling
need to diverge from the view adopted by the Constituent Assembly
as that view supports the fundamental principles of federalism.
d) Option of withholding of assent is attached to the first proviso to
Article 200.
i) He submitted that the exercise of power to withhold assent by the
Governor is coupled with the duty of the Governor to comply with
the procedure prescribed in the first proviso to Article 200 and the
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same has been recognised in the decision in State of Punjab
(supra) .


ii) On the use of the expression “shall declare” in the substantive part
of Article 200, he submitted that this expression in the main part of
Article 200 would, by necessary implication, require the Governor
to mention the reasons for withholding the assent.


iii) He submitted that the expression “shall not withhold assent
therefrom” in the first proviso to Article 200 takes away the option
of reserving the Bill for the consideration of the President from the
Governor when the Bill is repassed by the State Legislature and
presented before him for assent. In support of his submission, he
argued that the use of a negative expression renders the course of
action prescribed as mandatory in nature. He further submitted that
the phraseology of the first proviso to Article 200 is different from
the proviso to Article 201 inasmuch as the latter does not oblige the
President to mandatorily assent to the Bill after it has been repassed
by the State Legislature and is presented before him again.
Whereas, in contrast, the first proviso to Article 200 is couched in
a negative language and thus prohibits the Governor from taking
any other recourse than granting assent.
W.P. (C) No. 1239 of 2023 Page 33 of 414

e) Reservation of bills for the consideration of the President.
i) Mr. Dwivedi submitted that the power to reserve the Bill for the
consideration of the President is not open ended. If specific
provision of the Constitution does not require Presidential assent to
the Bill passed by State Legislature, then such a Bill cannot be
reserved for the consideration of the President.

ii) He submitted that a further limitation on the power to reserve a Bill
is that it can only be reserved on the aid and advice of the Council
of Ministers and the Governor has no personal discretion in this
th
matter. Articles 31A, 31C, 213, 254, 288, 304(b), 360 and 6
Schedule are the only provisions which expressly require assent of
President. It is only when these articles are attracted that the
Governor can reserve the Bills for consideration of the President.
In the exclusive domain of Legislation under the State List or List-
th
II of the 7 Schedule of the Constitution, no assent of President is
needed.


iii) On the aspect of repugnancy, he submitted that the letter of the
Governor informing that the Bills were being reserved for the
consideration of the President fails to specify the Central law with
which States Bills are repugnant. This indicates non-application of
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mind. He submitted that in Kaiser-I-Hind Pvt. Ltd. and Anr. v.
National Textile Corporation (Maharashtra North) Ltd. and Ors.
reported in (2002) 8 SCC 182 , a Constitution Bench of this Court
held that the Central law with which repugnance exists must be
pointed out by the proposal of State government specifically. Even
the nature of repugnance should be stated so as to enable the
President to consider the nature, extent, feasibility, practicality and
desirability of assenting.


iv) On the aspect of reading in a time limit within the scheme of Article
200, he submitted that an outer limit of 2 to 3 months needs to be
stipulated by this court to obviate exercise of pocket-veto by the
Governors. Delays of over 3 months needs to be curbed.

32. Dr. Abhishek Manu Singhvi, the learned Senior Counsel appearing for the
petitioner, made detailed submissions broadly on the following aspects:

a) The Governor in exercise of his functions under Article 200 is
required to act on the aid and advice tendered by the Council of
Ministers.
i) The Governor is merely a titular or de jure head of the State and the
task of governing the State is entrusted to the Chief Minister and
his Council of Ministers who can be said to be the head of the State
W.P. (C) No. 1239 of 2023 Page 35 of 414

de facto . The powers vested in the Governor under the Constitution
must be exercised on the aid and advice of the Council of Ministers
headed by the Chief Minister.


ii) The Constituent Assembly Debates indicate that the framers of our
Constitution envisaged the position of the Governor as that of a
guide, philosopher and a friend of the Government and the people
in general.


iii) The Constituent Assembly, in its wisdom and in consonance with
the position of the Governor in the parliamentary form of
Government, removed the phrase “in his discretion” from the
substantive part and the first proviso to Section 75 of the
Government of India Act upon which Article 200 was modelled.


iv) The Constitutional Scheme does not envisage that the Governor
would have the power to veto Bills duly passed by the State
Legislature and would be capable of supplanting the policies of the
Government with his own discretion. The Governor cannot sit over
the Bills enacted by the Legislature indefinitely as that would be
against the interest of the people who elect the Government with
the aspiration that the Government would legislate in their interest.
W.P. (C) No. 1239 of 2023 Page 36 of 414

Gubernatorial procrastination is a new phenomenon and requires
judicial intervention for finding a new solution for it within the
Constitutional framework.


v) Placing reliance on the Constitution Bench decision in Samsher
Singh (supra) , he submitted that although the executive power of
the State is vested in the Governor yet it is actually carried on by
the Ministers under the Rules of Business made under Article
166(3). Further, the President or the Governor act on the aid and
advice of the Council of Ministers with the Prime Minister as the
head in the case of the Union and the Chief Minister as the head in
the case of States, in all matters which vest in the Executive,
irrespective of whether those functions are executive or legislative
in character.


vi) Referring to the observations made by a Constitution Bench of this
Court in Nabam Rebia (supra) , it was submitted that the Governor
cannot be entrusted with such powers and functions as would assign
to him a dominating position over the State Executive and the State
Legislature. The Governor cannot be accepted as an all-pervading
super-constitutional authority. It was submitted that an examination
of the executive and legislative functions of the Governor in the
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context of the constitutional scheme clearly brings out that the
Governor has not been assigned any substantive role either in the
executive or the legislative functioning of the State.


vii) It was argued that this Court in Nabam Rabia (supra) has gone
further to say that any exercise of discretionary powers of the
Governor is limited to situations where a constitutional provision
expressly provides that the Governor should act in his own
discretion. Additionally, a Governor may exercise his functions in
his own discretion in situations where the constitutional provision
concerned cannot be construed otherwise and in situations where
the clear intent underlying a constitutional provision so requires
i.e., where the exercise of such power on the aid and advice, would
run contrary to the constitutional scheme, or would be contradictory
in terms.


viii) In response to our specific question as regards the observations
made by this Court in B.K. Pavitra v. Union of India reported in
(2019) 6 SCC 129 , that the eventuality in Article 254(2) does not
exhaust the ambit of the power entrusted to the Governor under
Article 200 to reserve a Bill for the consideration of the President,
he submitted that the Governor may legitimately refer a bill for
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consideration at the end of the President upon entertaining a
legitimate doubt about the validity of law. However, such reference
of a bill can only be done with the aid and advice of the Council of
Ministers and not upon the individual discretion of the Governor.


ix) He further submitted that the said observations in B.K. Pavitra
(supra) should be interpreted to mean that even though the power
under Article 200 is entrusted to the Governor, yet such exercise of
power can only be done with the aid and advice of the Council of
Ministers of the State. The Governor has no independent discretion
under the substantive part of Article 200 for referring the bill for
the consideration of the President. As is crystal clear from the
Constituent Assembly Debates, there is no independent discretion
vested in the Governor in exercise of his functions under Article
200 of the Constitution. Although the power of reserving Bills for
the consideration of the President is a necessary channel for
references under Article 254(2) to save the competence of the State
Legislatures from being unduly restricted by the operation of the
rule of repugnancy embodied in Clause (1) of the Article 254, yet
such power is also subject to the aid and advice of the Council of
Ministers.

W.P. (C) No. 1239 of 2023 Page 39 of 414

b) The Governor cannot reserve a bill for the consideration of the
President when it is repassed by the State Legislature, with or
without amendments, under the first proviso to Article 200?

i) Mr. Singhvi submitted that the relevant consideration at the end of
the Governor when a bill is presented before him for assent broadly
should be as follows:
1. The first step is to ascertain whether the Bill is a Money Bill – In
cases of Money Bills, the Governor has to grant assent.
2. Thereafter, the Governor must ascertain whether the second
proviso to Article 200 is attracted, that is, whether the Bill, if it
became law, would derogate from the powers of the High Court -
If the answer is yes, then the Governor must reserve the Bill for
the consideration of the President.
3. In all other cases, the Governor has three options to choose from
when the bill is presented before him for the first time – to either
assent, or withhold assent, or reserve the Bill for the consideration
of the President.


ii) He submitted that after the Governor has withheld assent to a bill
and returned the same to the Legislative Assembly, it is not open to
the Governor to reserve the said bill for the consideration of the
President once the Legislative Assembly re-passes it with or
W.P. (C) No. 1239 of 2023 Page 40 of 414

without amendment. If the Governor wants to reserve any bill for
the consideration of the President, he must do so in the first instance
when the bill is presented to him for assent. The Governor can
choose any one of the three options at the first instance but if he
exercises the option to withhold assent, then the option of reserving
the bill for the consideration of the President ceases to exist because
the next step in such a case is to follow the procedure prescribed
under first proviso to Article 200.


iii) Explaining the reason for the aforesaid, he submitted that upon
exercising the second option, the third option no longer remains for
the Governor as the first proviso to Article 200 comes into
operation. Article 200 does not provide any scope to the Governor
for the reservation of the bill once the second option has already
been exercised. The decision of the Governor to go down the path
of sending the bill back to the Legislature precludes him from
reversing his constitutional election subsequently, by referring it to
the President after the Bill is returned to him consequent to
repassing by the Legislature.

W.P. (C) No. 1239 of 2023 Page 41 of 414

c) The first proviso to Article 200 is attached to the option of
withholding of assent provided in the substantive part of the article.

i) The concluding part of the first proviso stipulates that if the Bill is
passed again by the Legislature either with or without amendments,
the Governor shall not withhold assent therefrom upon
presentation. The expression “shall not withhold assent therefrom”
is a clear indicator that the exercise of the power under the first
proviso is relatable to the withholding of the assent by the Governor
to the bill in the first instance. This phrase constitutes a clear and
unequivocal constitutional prohibition against the Governor. The
role which is ascribed by the first proviso to the Governor is
recommendatory in nature and it does not bind the State
Legislature.


ii) The first proviso to Article 200 expands upon the second option to
ensure that the object of the Article is not rendered otiose as without
the first proviso, Article 200 would allow the Governor to
indiscriminately veto bills by repetitively and sequentially
withholding the assent and cripple an elected Government for
political reasons.


W.P. (C) No. 1239 of 2023 Page 42 of 414

iii) On the use of the expression “may” in the first proviso to Article
200, placing reliance on the decision of this Court in State of Uttar
Pradesh v. Jogendra Singh reported in AIR 1963 SC 1618 the
counsel submitted that in the said decision while adjudicating the
duty of the Governor to refer the cases relating to Government
servants to the Administrative Tribunal under Rules 4(2) of the
Civil Service Rules which also used the expression “may” this
Court had held that the word “may” is capable of meaning “must”
or “shall” in the light of the context. He further submitted that
where a discretion is conferred upon a public authority coupled
with an obligation, the word “may” which denotes discretion
should be construed to mean a command. Sometimes, the
legislature uses the word “may” out of deference to the high status
of the authority on whom the power and the obligation are intended
to be conferred and imposed.


iv) The first part of the first proviso is mandatory in nature. It
authorises the Governor to, as soon as possible, after the
presentation for Bill for assent, return the Bill together with a
message requesting the House to reconsider the Bill with the
desirability of introducing any such amendments as he may
recommend in his message. He submitted that this interpretation
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was also followed by this Court in the decision in State of Punjab
(supra) by stating that Governor must mandatorily follow the
course of action indicated in the first proviso of communicating to
the State Legislature “as soon as possible” a message warranting
reconsideration of the Bill.


v) The Governor can only return the bill when he has withheld the
assent. The Governor cannot be expected to keep the bill in his
custody after withholding the assent as it would amount to a
“pocket veto” or veto which is contrary to the intention of the
makers of the Constitution. Any acceptance of such “suspended
animation” doctrine of a Bill, supposedly kept indefinitely pending
by a Governor, would be grossly violative of the Constitutional
text, spirit and intent.


vi) The counsel while highlighting the facts of the case at hand,
submitted that the Governor had returned the Bills with the remarks
“I withhold assent” which amounts to a clear withholding as per the
second option of the substantive part of Article 200. When these
Bills were returned to the Legislative Assembly, the Bills only
contained a signed endorsement by the Governor with the remarks
“I withhold assent” and there was no message for reconsideration.
W.P. (C) No. 1239 of 2023 Page 44 of 414

In such a situation of simpliciter withholding of assent, the State
Legislative Assembly cannot be precluded from re-considering the
Bill and re-passing the Bill as the exercise of the option of
withholding of assent brings into operation the first proviso
whereby such Bills have to be returned to the State Legislative
Assembly.

vii) Once the first proviso comes into operation, the State Legislature is
bound to mandatorily reconsider the Bills and pass them with or
without any amendments as indicated by the expression “House or
Houses shall reconsider the Bill accordingly” in the second part of
the first proviso to Article 200.
d) A time-limit must be read into the expression “as soon as
possible” appearing in the first proviso to Article 200 to curtail
the prevalent practice of gubernatorial procrastination.

i) He submitted that the expression “as soon as possible” provided in
first proviso to Article 200 does not provide any strict time limit to
be followed by the Governor to decide upon the Bills presented for
assent, but that should not and cannot mean that the Governor can
keep a Bill duly passed by the State Legislative Assembly
“pending” for indeterminate periods. This course of action is
inconsistent with the phrase “as soon as possible”.
W.P. (C) No. 1239 of 2023 Page 45 of 414



ii) The counsel placed reliance on the following decisions of this Court
in support of his submission:
• The State of Telangana v. Secretary to Her Excellency the
Hon’ble Governor for the State of Telangana & Anr. reported
in (2024) 1 SCC 405 has emphasized that the phrase “as soon
as possible” has significant Constitutional content, and must be
borne in mind by Constitutional functionaries.
• Ram Chand and Ors. v. Union of India and Ors. reported in
(1994) 1 SCC 44 held that where for exercise of power no time-
limit is fixed, it has to be exercised within a time which can be
held to be reasonable.

• Keisham Meghachandra Singh v. Speaker, Manipur
Legislative Assembly and Ors. reported in (2021) 16 SCC 503
had postulated a “three months outer limit” for deciding
disqualification petitions filed before the Speaker.
• M/s North Eastern Chemicals Industries (P) Ltd. & Anr. v.
M/s Ashok Mills - CA No. 2669 of 2023 has held that where
there is no time period prescribed by the statute, the Court must
undertake a holistic assessment of the facts and circumstances,
conduct of the parties, and the nature of the proceedings to
examine the possibility of delay causing prejudice to a party.
W.P. (C) No. 1239 of 2023 Page 46 of 414

• AG Perarivalan v. State, Through Superintendent of Police
CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr. reported in
(2023) 8 SCC 257 wherein while dealing with the delay caused
by the Governor in deciding remission matters, this Court
exercised its powers under Article 142 of the Constitution
directing that the prisoner was deemed to have served the
sentence.

iii) Mr. Singhvi referred to Chapter V of the report of the Sarkaria
Commission on Centre-State Administrative Relations wherein it
was suggested that the Governor should make a declaration under
Article 200 within one month from the date on which the Bill is
presented. He also referred to the Punchhi Committee Report on
Centre-State Relations which recommended “maximum period of
six months after Bill is presented” to be the time limit to be
followed by the Governor under Article 200.

e) The observations made by this Court in its decision in Valluri
Basavaiah Chowdhary are not applicable to the present case

i) Mr. Singhvi submitted that this Court in Valluri Basavaiah
Chowdhary (supra) had no occasion to adjudicate upon the
W.P. (C) No. 1239 of 2023 Page 47 of 414

interpretation of the constitutional powers of the Governor under
Article 200 of the Constitution. Therefore, the observations of the
Court in Para 19 cannot be construed to be its ratio decidendi . At
most, these observations could be considered as obiter dicta .
Indeed, they may not even constitute obiter but are mere
observations, totally unconnected to and unnecessary for that case.

ii) He relied upon the decision of this Court in Secunderabad Club v.
Commissioner of Income-Tax reported in (2023) SCC OnLine
SC 1004 to submit that in terms of Article 141 of the Constitution,
only the ratio decidendi of a judgment, that is, the reason assigned
in support of the conclusion, is binding. He submitted that this
Court has held that what is binding, therefore, is the principle
underlying a decision which must be discerned in the context of the
question(s) involved in that case from which the decision takes its
colour. In a subsequent case, a decision cannot be relied upon in
support of a proposition that it did not decide. Therefore, the
context or the question, while considering which, a judgment has
been rendered assumes significance.


iii) He submitted that the obiter dictum of the Supreme Court is binding
under Article 141 to the extent of the observations on points raised
W.P. (C) No. 1239 of 2023 Page 48 of 414

and decided by the court in a case. Although the obiter dictum of
the Supreme Court is binding on all courts yet it only has persuasive
authority as far as the Supreme Court itself is concerned.


iv) He further submitted that a decision is not an authority for what can
be read into it by implication or by assigning an assumed intention
of the judges and inferring from it a proposition of law which the
judges have not specifically or expressly laid down in the
pronouncement.


v) Lastly, he submitted that even if the decision in Valluri Basavaiah
Chowdhary (supra) is interpreted as a binding precedent, still such
interpretation of the Article 200 would fall foul of the intention
envisaged by the Constituent Assembly.
f) Role of the President under Article 201.


i) On the aspect of the position of the President under Article 201, he
submitted that the President is not required to mandatorily assent to
the bill that is presented to him for his consideration after being
repassed by the State Legislature, once such bill has been sent back
by the President under the proviso to Article 201 in the first
instance.
W.P. (C) No. 1239 of 2023 Page 49 of 414



ii) It was submitted that Article 201 does not contain the expression
“shall not withhold assent therefrom” in the proviso unlike the first
proviso to Article 200. He further submitted that this Court in
Kaiser-I-Hind (supra) had held that the assent of the President
envisaged under Articles 31-A, 31-C, 254(2) and 304(b) of the
Constitution respectively constitutes a distinct class and category
of its own and is different from the assent envisaged under Articles
111 of the President or Article 200 of the Governor. A bare perusal
of Article 201 indicates that even when the Houses of the State
Legislature re-pass the Bill and present it for consideration in terms
of the proviso to Article 201, there is no compulsion on the
President to accord assent.


iii) Just as the Governor, the President is also bound by the aid and
advice of his Council of Ministers under Article 201 of the
Constitution. Such absence of compulsion of the President to grant
assent to the Bill re-considered and repassed by the State
Legislative Assembly is also subject to the aid and advice of the
Council of Ministers. Whether the President should grant assent or
not would be subject to the aid and advice by the Council of
W.P. (C) No. 1239 of 2023 Page 50 of 414

Ministers. There is no individual discretion vested in the President
in granting or not granting the assent under Article 201.
g) Malice in law and malice in fact

i) He submitted that the Governor could be said to have committed
violence to the constitutional framework by not adhering to the
mandate under Article 200 of the Constitution and has also
attempted to render the present Writ Petition infructuous during its
pendency.


ii) It was submitted that when the Petitioner had approached this Court
initially, the Governor had kept 12 Bills pending. Thereafter, the
captioned Writ Petitions were heard by this Court on 10.11.2023
wherein it was observed that the present Writ Petition raised a
matter of serious concern and issued notice to the Union of India
represented by the Secretary to the Government in the Ministry of
Home Affairs. In light of the aforesaid, the Governor hastily on
13.11.2023 referred two Bills for the consideration of the President
and withheld assent simpliciter to the remaining 10 Bills. On
18.11.2023, a special session of Tamil Nadu Legislative Assembly
was held and the 10 Bills were reconsidered and passed in the
Assembly. These Bills were sent to the Governor for consideration
W.P. (C) No. 1239 of 2023 Page 51 of 414

on the same day itself. However, the Governor, with a view to
render the present petition infructuous, reserved the 10 Bills for the
consideration of the President.


iii) In the last, the learned counsel submitted that the action of the
Governor has been contrary to what was laid down by this Court in
S.R. Bommai (supra) wherein it was stated that the Governor is a
very high Constitutional functionary and he is supposed to act fairly
and honestly, in a manner consistent with his oath. It is for this
reason that Article 356 places such implicit faith on his report. If,
however, in a given case his report is vitiated by legal mala fides ,
it is bound to vitiate the President's action as well.


33. Mr. P. Wilson, the learned Senior Counsel, made extensive submissions on
behalf of the petitioner. For the sake of brevity, we are recording only those
submissions which are in addition to the points already canvassed by Mr.
Dwivedi and Mr. Singhvi respectively:
i) The Constituent Assembly after long and detailed debates decided to
have a nominated Governor in place of an elected Governor and
consciously deleted all expressions from the Draft Constitution which
conferred individual discretion on the Governor. He referred to certain
W.P. (C) No. 1239 of 2023 Page 52 of 414

portions of the report of the Sarkaria Commission in support of his
arguments.

ii) Article 91 of the Draft Constitution, 1948 which enumerated the assent
to bills by the President, had postulated a time limit of six weeks for
the President to provide his assent to the bills presented to him by the
Houses of Parliament.

iii) Relying on the speech of Mr. T.T. Krishnamachari in the Constituent
Assembly, he submitted that Article 200, as finally enacted, does not
vest any discretion in the Governor to withhold a bill passed by the
Legislature except on the express aid and advice of the Council of
Ministers.

iv) He submitted that the Sarkaria Commission in its Report in Chapter V
had observed that the Governor may reserve a bill for the consideration
of President when it clearly violates Fundamental Rights or
transgresses other Constitutional limitations. The power to reserve
Bills could be used only in rare circumstances. In all other
circumstances, the Governor needs to abide by the aid and advice of
the Council of Ministers. Therefore, Article 200 does not confer
general discretion on the Governor but mandates him to act in
accordance with aid and advice of the Council of Ministers.
W.P. (C) No. 1239 of 2023 Page 53 of 414


v) He submitted that the fear anticipated by Shri H.V. Kamath as regards
the difficulties that may arise due to the use of the phrase “as soon as
possible” during the discussion on draft Article 91 is exactly what has
been happening in the States of Telangana, Punjab, Kerala as well as
in the petitioner State. Thus, this Court must intervene and put the
matter on quietus by declaring that it is deemed that assent has been
granted to the Bills and declare the action of reserving Bills for assent
of the President as ultra vires.

vi) He submitted that the 10 Bills which are the subject matter of present
Writ Petition were dealt with by the Governor during the pendency of
the Writ Petition in the manner referred to in paragraph 13 and 14
respectively of the third Amendment application in I.A. No. 216164
of 2024. Therefore, all unconstitutional acts of the Governor remain
for consideration by this Court as they are actions pendente lite and
this Court has the power to turn the clock back and restore status quo
ante .

ii. Submissions on behalf of the Respondents

34. Mr. R. Venkatramani, the learned Attorney General for India, appeared for
the respondents and submitted as follows:

W.P. (C) No. 1239 of 2023 Page 54 of 414

a. The Governor while acting under Article 200 is not acting in exercise of
ordinary discretion but is acting under a constitutional responsibility.
Thus, even if it is assumed that the Governor has no individual
discretion, he may still withhold assent to a bill as per his constitutional
obligation.

b. He submitted that having regard to the high level of responsibilities
entrusted to the Governor in dealing with Bills presented for his
consideration, the Governor may reach out to the Council of Ministers
for advice, in order to know the legislative intent, and be benefited as
well. However, when on the plain understanding of the bills, the
Governor finds constitutional contraventions, or seriously debatable
issues of the Constitution, he may apply his mind, with or without the
aid of the Council of Ministers. This principle of an area of
constitutional deliberation prior to the Governor taking any call under
Article 200, cannot be subjected to or put into any strait-jacket formula.


c. He submitted that when new issues and concerns of legislation involving
federal structure of the polity of the nation arise, it is important that the
role of the Governor is neither stretched beyond a point, nor should be
allowed to be diminished to a status of no consequence.
W.P. (C) No. 1239 of 2023 Page 55 of 414



d. He submitted that in the instant case, the Governor was persuaded by
the observations made in Valluri Basavaiah (supra) , which suggest that
when assent is withheld, the Bill will cease to exist. However, if the
Governor chooses to follow the procedure under the first proviso,
wherever it will be of relevance and of importance to follow, then the
Governor would become bound by the mandatory stipulation enunciated
in the first proviso.


e. He submitted that the single-minded focus of the Governor was to
ensure that a repugnant law, if allowed to be on the statute book, would
open the scope for maladministration of universities and impede the
avowed object and purpose of excellence in higher education, placing
all power in the hands of the State Government as opposed to the
Chancellor. It is only with a view to avoid such a situation that the
Governor withheld assent to the Bills in question.


f. On the aspect of reservation of the bills for the consideration of the
President, he submitted that there is nothing in Article 200 that suggests
that the Governor ceases to have the authority to refer the matter to the
President after he has withheld assent to the bill in the first instance. If
this authority is available at the time of withholding of assent, the same
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cannot be taken away or not made available by the State Government
acting on their own motion under the first proviso.


g. In furtherance of the aforesaid submission, he submitted that for all
practical purposes, the Bills forwarded by the petitioner State on
18.11.2023 should not to be treated as sent by the Governor acting under
the first proviso. Bills that are sent outside the procedure contemplated
by the first proviso, would be open for consideration by the Governor
for any further course of action including, reference to the President. The
principle of power coupled with duty underlying Article 200 demands
that recourse to reference to President even after initial withholding of
assent by the Governor, be read into the Article, in order to make the
power effective to achieve its purpose.

h. He submitted that on a proper reading of the substantive part and the
first proviso to Article 200, it will be seen that four courses of actions
are available to the Governor. The observations made in the State of
Punjab (supra) decision may thus warrant a qualification, or
an additional statement to fine-tune the scope of Article 200.


i. On the issue as regards whether the first proviso is attracted in all
instances of withholding of assent, he submitted that the role for the first
proviso is confined to cases where the bill may not be hit by any
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constitutional limitation, is within the competence of the legislature, but
may admit of changes, amendments, etc. Such amendments or changes
that the Governor may thus suggest within the scope of the first proviso,
will not be relatable to matters such as repugnancy. With the perception
of repugnancy, the focus of the Governor will be outside the first
proviso. He argued that even though this Court in State of Punjab
(supra) has opined that the exercise of power under the first proviso is
relatable to the withholding of the assent by the Governor, yet this view
may require a further qualification that in the context of repugnancy,
unlike any other reason for withholding of assent, the Governor need not
necessarily proceed to act under the first proviso. The first proviso
perhaps cannot be read to be pressed into service when both the
Governor and the State Government understand the repugnancy
dimension. In the event the State Government desires to clear the
repugnancy or any other hurdle, it may itself seek the assent of the
President. In such an event the State Government may also ask the
Governor to refer the matter to the President for consideration.

j. He submitted that that in the present case as the President has withheld
assent to the Bills in question, therefore in terms of the statement of law
in Hoechst Pharamaceuticals (supra) , the action of the President in
withholding assent is not justiciable. What cannot be directly done by
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seeking such justiciability cannot be indirectly achieved by the claim
that the action of the Governor in forwarding the bills in question to the
President was beyond his authority.

k. He submitted that the exposition of Article 200 as done in State of
Punjab (supra) is sub-silentio as the Court while making the said
decision did not take into account the observations made by the
Constitution Bench in Valluri Basavaiah (supra) .


l. In the last, he submitted that the matter may be referred to a larger Bench
of this Court so as to harmonise the observations made in B.K. Pavitra
(supra) , Valluri Basavaiah (supra) and State of Punjab (supra) .


35. Mr. Vikramjit Banerjee, the learned Additional Solicitor General, appeared
for the respondents and submitted as follows:
a. A reading of Clause (1) of Article 163 categorically provides that the
Governor ordinarily is aided and advised by the Council of Ministers
headed by the Chief Minister, however, there is an express discretion
vested with the Governor for exercising functions under the Constitution
which permeates all of the provisions that require the Governor to
exercise his/her power, including Articles 200 and 201.

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b. Placing reliance on the decision of this Court in M.P. Special Police
(supra) , he submitted that that the normal rule is that the Governor acts
on the aid and advice of the Council of Ministers and not independently
or contrary to it. But there are exceptions under which the Governor can
act in his own discretion and the exceptions are not exhaustive or limited
but differ as per the facts of each case. He further submitted that the
aforesaid decision recognised that the concept of the Governor acting in
his discretion or exercising independent judgment is not alien to the
Constitution. There may be situations where, by reason of peril to
democracy or democratic principles, an action may be compelled which
by its very nature is not amenable to Ministerial advice. An instance of
a situation curiously similar to the present case is discussed where bias
was inherent and manifest in the advice of the Council of Ministers as
the proposed bills sought to fundamentally encroach into the role of the
Governor as the Chancellor by seeking to substitute “Chancellor” (who
is the appointing authority of Vice Chancellors and also the disciplinary
authority) with “Government”. The State Government has impugned the
notifications issued by the Governor (in the capacity of the Chancellor)
for constitution of Search Committees for appointment of Vice
Chancellors for State Universities. Additionally, the Bills were
effectively aimed at seeking to control the co-ordination and standards
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of higher and technical education/research which fall under Entry 66
of the Union List (under the Seventh Schedule of the Constitution).

c. Placing reliance on the decision of this Court in
Purushothaman Nambudiri v. State of Kerala reported in 1961 SCC
OnLine SC 361 he submitted that the idea of reading in a time limit in
Articles 200 and 201 respectively had been deliberated upon and
expressly rejected by this Court in the said decision.

C. ISSUES FOR CONSIDERATION


36. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions of paramount
constitutional importance fall for our determination:

I) What courses of action are available to the Governor in exercise of
his powers under Article 200 of the Constitution?
i. Whether the first proviso could be said to provide an independent
course of action available to the Governor in addition to the three
options provided under the substantive part of Article 200?
ii. In what manner the expression “the Bill falls through unless the
procedure under the first proviso is followed” , as used in Valluri
Basavaiah Chowdhary (supra) , should be construed?
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iii. Whether the decision of this Court in State of Punjab (supra)
could be said to be per incuriam for not having taken into
consideration the observations made in previous decisions
rendered by larger benches of this Court?
iv. Whether the scheme of Article 200 of the Constitution envisages
the exercise of ‘absolute veto’ or ‘pocket veto’ of a bill by the
Governor?


II) Whether the Governor can reserve a bill for the consideration of
the President at the time when it is presented to him for assent after
being reconsidered in accordance with the first proviso to Article
200, more particularly, when he had not reserved it for the
consideration of the President in the first instance and had
declared withholding of assent thereto?

i. Whether the reservation by the Governor, for the consideration of
the President of the ten Bills which were repassed by the Tamil
Nadu State Assembly and presented to the Governor on
18.11.2023, is erroneous in law and hence liable to be set aside?

III) Whether there is an express constitutionally prescribed time-limit
within which the Governor is required to act in the exercise of his
powers under Article 200 of the Constitution?
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i. How is the absence of an express time-limit in Article 200 to be
construed for ascertaining the manner in which the Governor is
expected to exercise his powers under the said provision?
ii. What is the import of the expression “ as soon as possible ”
appearing in the first proviso to Article 200?
iii. Whether a time-limit can be prescribed by this Court for ensuring
that the exercise of power by the Governor under Article 200 is in
conformity with the object of expediency underlying the scheme of
the said provision?

IV) Whether the Governor in the exercise of his powers under Article
200 of the Constitution can only act in accordance with the aid and
advice tendered to him by the State Council of Ministers? If not,
whether the constitutional scheme has vested the Governor with
some discretion in discharge of his functions under Article 200?
i. How has the role of the Governor been envisaged under the
constitutional scheme?
ii. Whether the Governor enjoys a certain degree of discretion in
discharge of his functions in contrast to the President? What is the
source of such discretion, if any?
iii. Whether the deletion of the expression “ in his discretion ” from
Article 175 of the Draft Constitution imply that the Governor has
W.P. (C) No. 1239 of 2023 Page 63 of 414

no discretion available in the exercise of his powers under Article
200?
iv. Whether the observations of this Court in B.K. Pavitra (supra) that
“ a discretion is conferred upon the Governor to follow one of the
courses of action enunciated in the substantive part of Article 200 ”
could be said to be per incuriam for having failed to notice the
position of law as laid down by the larger Benches of this Court?

V) Whether the exercise of discretion by the Governor in discharge of
his functions under Article 200 could be said to be subject to
judicial review? If yes, what are the parameters for such judicial
review?
i. Whether the discharge of functions by the Governor under Article
200 of the Constitution in his discretion could be said to be immune
from judicial review?
ii. Whether the withholding of assent by the President under Article
201 of the Constitution could also be said to be beyond the scope
of judicial scrutiny?
iii. If the aforesaid discharge of functions is subject to judicial review,
whether such discharge of functions could be said to be non-
justiciable in light of the decisions of this Court in Hoechst
(supra) , Kaiser-I-Hind (supra) , and B.K. Pavitra (supra) ?
W.P. (C) No. 1239 of 2023 Page 64 of 414

VI) What is the manner in which the President under Article 201 of the
Constitution is required to act once a bill has been reserved for his
consideration by the Governor under Article 200 of the
Constitution?
i. Whether the decision of the President to withhold assent under
Article 201 of the Constitution could be said to be justiciable? If
yes, what is the extent of justiciability that the courts can embark
upon while undertaking judicial review of the exercise of powers
by the President under Article 201 of the Constitution?

D. ASSENT TO BILLS – HISTORICAL BACKGROUND

37. Article 200 appears in Chapter III of Part VI of the Constitution under the
heading Legislative Procedure. Part VI deals with the States and Chapter III
deals with the State Legislature. The marginal note attached to Article 200
reads “Assent to Bills” and the article reads as follows:
“ 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 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, return the Bill if it
is not a Money Bill together with a message requesting that
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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.”



38. Section 75 of the Government of India Act, 1935 (for short, “ the GoI Act,
1935 ”) upon which the Article 200 has been substantially modelled is
reproduced hereinbelow:
“ 75. Assent to Bills. –
A Bill which has been passed by the Provincial Legislative
Assembly or, in the case of a Province having a Legislative
Council, has been passed by both Chambers of the Provincial
Legislature, shall be presented to the Governor, and the
Governor in his discretion shall declare either that he assents
in His Majesty's name to the Bill, or that he withholds assent
therefrom, or that he reserves the Bill for the consideration
of the Governor General :

Provided that the Governor may in his discretion return the
Bill together with a message requesting that the Chamber or
Chambers 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
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his message and, when a Bill is so returned, the Chamber or
Chambers shall reconsider it accordingly.”



39. A perusal of both the aforesaid provisions indicates that Article 200 of the
Constitution corresponds to Section 75 of the GoI Act, 1935 except for the
following differences:
a. The expression “ in his discretion ” has been omitted from both the
substantive part of Article 200 as well as the first proviso thereto.
b. The Governor under Article 200 assents to the bill in his own name
unlike Section 75 wherein the assent was to be granted in the name
of the Crown.
c. The expression “ 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 ” has been
added to the first proviso to Article 200.
d. The second proviso is a further addition to Article 200 and did not
exist in Section 75 referred to above.

40. D.D. Basu in his Commentary on the Constitution of India (pp. 6311, 8th
Ed., 2009) has observed that the omission of the expression “ in his
discretion ” from Article 200 signifies that the Governor must exercise his
power under the Article according to the advice of his ministers. Further, the
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addition of the expression “ shall not withhold assent therefrom ” indicates
that the Governor has no power to veto a reconsidered bill and must assent
to it whether it is passed in the original form or with amendments.

41. Article 200 is divided into three parts - the substantive part and two provisos.
A perusal of the substantive part of Article 200 indicates that the
presentation of a bill to the Governor is mandatory after it is passed by the
State legislature. The same is made evident from the use of the expression
“ it shall be presented to the Governor ”. In the same breath, Article 200
makes it mandatory for the Governor to make one of the following
declarations:
a. That he assents to the bill; or
b. That he withholds assent to the bill; or
c. That he reserves the bill for the consideration of the President.

42. It is important to note that the expression “shall” has been used to qualify
the three types of declarations that the Governor can make upon presentation
of the bill to him. Further, the three options provided in the substantive part
of Article 200 are connected by the conjunction “or” which signifies that the
three options are mutually exclusive of each other, and the Governor can
only choose one of them at a time. In other words, the Governor cannot
assent to a bill and also reserve it for the consideration of the President at
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the same time. Similarly, the Governor cannot declare that he withholds
assent and also reserve the bill for the consideration of the President at the
same time. Patanjali Sastri, Chief Justice (as he then was), observed to this
effect in State of Bihar v. Kameshwar Singh reported in (1952) 1 SCC 528
as follows:
“20. […] It is significant that the article does not contemplate
the Governor giving his assent and thereafter, when the Bill
has become a full-fledged law, reserving it for the
consideration of the President. Indeed, the Governor is
prohibited from giving his assent where such reservation by
him is made compulsory. The Constitution would thus seem
to contemplate only “Bills” passed by the House or Houses
of Legislature being reserved for the consideration of the
President and not “laws” to which the Governor has already
given his assent. […]

Similarly, Article 31(3) must, in my judgment, be understood
as having reference to what, in historical sequence, having
been passed by the House or Houses of the State Legislature
and reserved by the Governor for the consideration of the
President and assented to by the latter, has thus become a
law. If it was intended that such a law should have the assent
of both the Governor and the President, one would expect to
find not only a more clear or explicit provision to that effect,
but also some reference in Article 200 to the Governor's
power to reserve a measure for the consideration of the
President after himself assenting to it. On the other hand, as
we have seen, where reservation by the Governor is made
obligatory, he is prohibited from giving his assent.”

(Emphasis supplied)

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43. The first proviso to Article 200 has no application to Money Bills. For all
other bills, it provides that the Governor may, as soon as possible after the
presentation of the bill to him for assent, return the bill to the House or
Houses along with a message requesting the House or the Houses to
reconsider the bill in totality or certain provisions thereof. He may also
recommend the introduction of certain amendments to the bill. The first
proviso further states that when a bill is returned with such a message, then
the House or the Houses must reconsider the bill accordingly and if the bill
is passed with or without amendments and presented to the Governor for
assent, he shall not withhold assent therefrom.

44. The second proviso to Article 200 provides that if the Governor is of the
opinion that a bill which is presented to him for assent would, upon
becoming law, so derogate from the powers of the High Court as to endanger
the position which that Court is designed to fill by the Constitution, then he
must reserve the bill for the consideration of the President and not grant
assent to it.

45. The heart of the controversy before us lies in the interpretation of the
substantive part of Article 200 and the first proviso to it. The arguments
advanced before us coupled with the factual situation which we are
confronted with, and the broader constitutional and political consequences
W.P. (C) No. 1239 of 2023 Page 70 of 414

that an interpretation of Article 200 entails, has opened up before us a
treasure trove of questions hidden in the seemingly innocuous and plain
language used in Article 200.

46. For a better understanding of Article 200, it is necessary that we should first
understand the concept of assent to bills, how it has evolved over the
centuries and its importance in parliamentary democracies across the globe.
We are undertaking this exercise as Article 200 cannot be understood fully
without having regard to the context in which it came to be included in the
Constitution. While fidelity to the text of the provision holds paramount
consideration in its interpretation, the context is equally, if not more,
important, more so in light of the fact that Article 200, as its stands today,
bears striking resemblance to Section 75 of the GoI Act, 1935 and other
important historical documents which were being drafted by Indians during
the course of the freedom struggle.


47. In Westminster styled polities, the Parliament consists of a lower House, an
upper House and the head of state. The Indian Constitution has also broadly
adopted a similar structure, which becomes evident from Articles 79 and 168
respectively. Article 79 provides that the Parliament shall consist of the
President and two Houses - the Council of States and the House of the
People. Article 168 provides that each State shall have a Legislature which
W.P. (C) No. 1239 of 2023 Page 71 of 414

shall comprise of the Governor and either one or two House(s), as the case
may be. In the Westminster system, for a law to be passed by the Parliament,
it must receive the approval of all the three elements - the Lower House, the
Upper House and the Head of the State.

2
48. Jessica J. Richardson in her paper titled “Modernisation of Royal Assent in
Canada”, has traced the historical origins of the practice of granting assent
to bills enacted by the Parliament in the United Kingdom. She has explained
that the practice of signifying royal assent to bills passed by Parliament
began during the reign of Henry VI (1422-71), when the practice of
introducing bills in the form of petitions was replaced by bills in the form of
complete statutes. This was a time when assent was granted in person. The
Sovereign would attend the Parliament in the House of Lords and give his
consent in person. This practice continued until 1541, when the task of
signifying royal assent was assigned to a Royal Commission in order to
spare King Henry VIII the indignity of having to give royal assent to the Bill
of Attainder, which provided for the execution of his wife Catherine
Howard. It was after this occurrence that the practice of appointing Lords
Commissioners responsible for giving royal assent developed. In the United
Kingdom, the last instance of a monarch giving royal assent in person was

2
AN ARLIAM EV
Jessica J. Richardson, Modernisation of Royal Assent in Canada, 27 C . P . R .2, 32 (2004),
<http://www.revparl.ca/27/2/27n2_04e_Richardson.pdf>.
W.P. (C) No. 1239 of 2023 Page 72 of 414

in 1854 when Queen Victoria personally assented to several bills prior to
proroguing the Parliament. However, in Canada, King George VI gave royal
assent in person to bills passed by the Canadian Parliament in 1939 during
a visit to Canada. The use of a royal assent ceremony continued in the United
Kingdom until 1967, when the British Parliament passed the Royal Assent
Act, 1967. The said legislation repealed the Royal Assent by Commission
Act, 1541 and allowed a simple report of royal assent by the Speakers of the
two Houses to give a bill the force of law.

49. In the Canadian context, she explains that the royal assent ceremony was
inherited from the United Kingdom tradition and was used prior to
Confederation in both Lower and Upper Canada and closely resembled the
original ceremony used in the United Kingdom. Prior to adoption of the new
procedure in 2002, Canada was the only remaining Commonwealth country
to still use the traditional ceremony for royal assent. However, taking
inspiration from the practice prevailing in other Commonwealth countries
including Australia and New Zealand, as well as several Canadian
provinces, the royal assent procedure was modernised by adopting a written
declaration procedure.


50. One of the first instances where the concept of assent to bills appears in a
documented form in the Indian context is the Constitution of India Bill, 1895
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which is also popularly referred to as the Swaraj Bill. The Bill, which is also
termed by the academics as the first articulation of a constitutional
imagination by Indians, besides incorporating ideas of free speech, equality
before law, right to property, etc., also envisaged a machinery of governance
and separation of powers, albeit within the British Empire. As regards the
legislative structure, the Bill proposed that the Sovereign of Great Britain
shall reign and rule over India and the Viceroy shall be the representative of
the Sovereign in India. It further envisaged that the Viceroy would be the
President of the Parliament and would have the power to veto any law
enacted by the Indian Parliament and initiate legislation. Article 97 of the
Bill provided that no bill would become law until it received the sanction of
the Sovereign. The said provision is reproduced hereinbelow:
“97. No Bill shall become law unless it has passed by
majority through the Lower House three times and the Upper
House three times and unless it has obtained the sanction of
the Sovereign.”



51. A few years after the ideation of the Swaraj Bill, the demand for self-
government further found expression in the Congress-League Scheme of
1916 which was a result of deliberations of the committees constituted
jointly by the Indian National Congress and the All India Muslim League.
The document envisioned a federal polity - with Provincial Legislative
Councils for the provinces and an Imperial Legislative Council at the
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national level. It is pertinent to note that as per the scheme, the Governor
was envisaged as the head of the provincial government and any bill passed
by the provincial legislature had to mandatorily receive his assent before it
became law. Further, the document also conferred upon the Governor-
General the power of vetoing any law passed by the provincial legislature.
Any bill passed by the Imperial Legislative Council had to receive the assent
of the Governor-General before it became law. The relevant provisions in
the said document are reproduced hereinbelow:
“I. Provincial Legislative Councils

xxx xxx xxx

9. A Bill, other than a Money Bill, may be introduced in
Council in accordance with rules made in that behalf by the
Council itself and the consent of the Government should not
be required therefor.

II. Provincial Governments

1. The head of every Provincial Government shall be a
Governor who shall not ordinarily belong to the Indian Civil
Service or any of the permanent services.

xxx xxx xxx

III. Imperial Legislative Council

xxx xxx xxx

9. All Bills passed by the Council shall have to receive the
assent of the Governor-General before they become law.”

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52. In the backdrop of the growing demand for self-government by the Indian
National Movement and the Montagu-Chelmsford Report, the Government
of India Act, 1919 (for short, “ the GoI Act, 1919 ”) was enacted and received
assent of the British Crown in December, 1919. The legislation introduced
dyarchy at the provincial level, by the introduction of the transferred list and
the reserved list. The reserved list consisted of the subject matters on which
the Governor enjoyed exclusive legislative powers. However, what we wish
to draw attention to is the provision contained in the said legislation as
regards assent to bills. Section 12 provided that the Governor had four
options to choose from when a bill was presented to him for assent - to
declare assent, to withhold assent, to return the bill to the council for
reconsideration or to reserve the bill for the consideration of the Governor-
General. Notably, there was no requirement for the Governor to mandatorily
assent to a bill upon its presentation after reconsideration. Further, the
Governor had the power to veto any bill passed by the legislative council by
a declaration simplicter of withholding of assent. There was also a provision
for the lapse of a bill reserved for the consideration of the Governor-General
if assent was not granted within a period of six months. Thus, the concept of
both absolute and pocket veto could be said to have been available to the
Governor and the Governor-General under the provisions of the GoI Act,
1919. The relevant provision is reproduced hereinbelow:
“ 12. Return and reservation of Bills. –
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(1) Where a Bill has been passed by a local legislative
council, the governor, lieutenant-governor or chief
commissioner may, instead of declaring that he assents to or
withholds his assent from the Bill, return the Bill to the
council for reconsideration, either in whole or in part,
together with any amendments which he may recommend, or,
in cases prescribed by rules under the principal Act may, and
if the rules so require shall, reserve the Bill for the
consideration of the Governor-General.

(2) Where a Bill is reserved for the consideration of the
Governor-General, the following provisions shall apply:-

(a) The governor, lieutenant-governor or chief
commissioner may, at any time within six months
from the date of the reservation of the Bill, with the
consent of the Governor- General, return the Bill for
further consideration by the council with a
recommendation that the council shall consider
amendments thereto:

(b) After any Bill so returned has been further
considered by the council, together with any
recommendations made by the governor, lieutenant-
governor or chief commissioner relating thereto, the
Bill, if re-affirmed with or without amendment, may
be again presented to the governor, lieutenant-
governor, or chief commissioner:

(c) Any Bill reserved for the consideration of the
Governor-General shall, if assented to by the
Governor-General within a period of six months from
the date of such reservation, become law on due
publication of such assent, in the same way as a Bill
assented to by the governor, lieutenant-governor or
chief commissioner, but, if not assented to by the
Governor-General within such period of six months,
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shall lapse and be of no effect unless before the
expiration of that period either-

(i) the Bill has been returned by the governor,
lieutenant-governor or chief commissioner,
for further consideration by the council; or

(ii) in the case of the council not being in
session, a notification has been published of
an intention so to return the Bill at the
commencement of the next session.

(3) The Governor-General may (except where the Bill has
been reserved for his consideration), instead of assenting to
or withholding his assent from any Act passed by a local
legislature, declare that he reserves the Act for the
signification of His Majesty’s pleasure thereon, and in such
case the Act shall not have validity until His Majesty in
Council has signified his assent and his assent has been
notified by the Governor- General.”

53. A reading of the aforesaid provision also indicates that at the time of drafting
Article 200, the framers of the Constitution not only had before them Section
75 of the GoI Act, 1935 but also Section 12 of the GoI Act, 1919 as well as
other possible variations about which we shall discuss in the following
paragraphs. However, certain features of Article 200, namely, the absence
of automatic lapse upon not receiving approval, mandatory requirement for
the Governor to not withhold assent to a bill which is presented to him after
being reconsidered by the legislature and absence of the expression “ in his
discretion ”, must be viewed in the context of gradual dilution of the role and
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powers of the Governor in provincial governance as the country neared
independence.

i. Concept of assent to bills as envisaged by certain historical documents
drafted during the freedom struggle.

54. The concept of assent by the Sovereign found mention in Section 75 of the
GoI Act, 1935 and Article 200 as it stands today is predominantly modelled
according to the version which existed therein. However, before we proceed
to discuss Section 75 of the GoI Act, 1935 and how it eventually evolved
into Article 200 of the Constitution, we deem it appropriate to briefly shed
light on how other aspirational constitutional documents, drafted during the
course of the freedom struggle, imagined the practice of assent to bills and
made certain modifications to the practice that prevailed in the United
Kingdom .

55. The Commonwealth of India Bill, 1925 that was drafted by the National
Convention had a lasting impact on the eventual framing of our Constitution
as regards the idea of royal assent. Article 39 of the said Bill provided that a
bill passed by the Parliament would be presented to the Viceroy for
obtaining the King’s assent. Similarly, for the provinces, Article 83 provided
that the bills passed by the provincial legislature would be presented to the
Governor for obtaining the King’s assent. However, what is relevant to note
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is that the provisions were not elaborate as regards the procedure and scope
of powers of the Sovereign while taking a decision on the aspect of assent.


56. However, the Nehru Report of 1928 shortly followed the Commonwealth of
India Bill, 1925 and was drafted in response to the dissatisfaction with the
Simon Commission. The Report sought to negative the challenge posed by
the British that a constitutional document, which is agreeable to all, could
not be drawn by Indians, and contained elaborate provisions providing the
mechanism for the purpose of assent to bills.


57. As regards the bills passed by the Parliament, it was stipulated in the Nehru
Report that a bill would not become an Act until assent was granted by the
Governor-General. The Governor-General was provided with three options
- to signify assent, to withhold assent or to reserve the bill for consideration
by the British Crown. Notably, there was no obligation on the Governor-
General to signify assent after a bill was repassed with or without the
amendments suggested by him. The relevant provision is reproduced
hereinbelow:
“21. (i) So soon as any bill, shall have been passed, or
deemed to have been passed by both Houses, it shall be
presented to the Governor-General for the signification by
him, in the King’s name, of the King’s assent, and the
Governor-General may signify such assent or withhold the
same or he may reserve the bill for the signification of the
King’s pleasure.
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(ii) A bill passed by both Houses of Parliament shall not
become an Act until the Governor-General signifies his
assent thereto in the King’s name or in the case of a bill
reserved for the signification of the King’s pleasure until he
signifies by speech or message to each House of Parliament,
or by proclamation that it has received the assent of the King
in Council. Provided that the Governor-General may, where
a bill has been passed by both Houses of Parliament and
presented to him for the signification by him of the King’s
assent, or has been reserved by him for the signification of
the King’s pleasure, return the bill for reconsideration by
Parliament with a recommendation that Parliament shall
consider amendments thereto.

(iii) Any bill so returned shall be further considered by
Parliament together with the amendments, recommended by
the Governor-General, and if re-affirmed with or without
amendments, may be again presented to the Governor-
General for the signification in the King’s name of the King’s
assent.”


58. As regards the provincial legislature, a bill passed by the provincial
legislature had to be assented to by the Governor before it would become an
Act. The Governor had two options - to declare assent or to withhold assent.
Notably, the Governor did not have the option to reserve the bill for the
consideration of the Governor-General. However, every bill after receiving
the assent of the Governor had to be mandatorily referred to and assented by
the Governor-General failing which the Act would have no validity. Even
after receiving the assent of the Governor-General, the Act could be
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disallowed by the King and would thereupon become void. The relevant
provisions are reproduced hereinbelow:
“37. When a bill has been passed by a local Legislative
Council, the Governor may declare that he assents to or
withholds his assent from the bill.

38. If the Governor withholds his assent from any such bill,
the bill shall not become an Act.

39. If the Governor assents to any such bill, he shall forthwith
send an authentic copy of the Act to the Governor-General,
and the Act shall not have validity until the Governor-
General has assented thereto and that assent has been
signified by the Governor-General to, and published by the
Governor.

40. Where the Governor-General withholds his assent from
any such Act, he shall signify to the Governor in writing his
reason for so withholding his assent.

41. When an Act has been assented to by the Governor-
General it shall be lawful for His Majesty in Council to
signify his disallowance of the Act.

42. Where the disallowance of an Act has been so signified,
the Governor shall forthwith notify the disallowance, and
thereupon the Act, as from the date of the notification shall
become void accordingly.”



59. In 1944, the All India Hindu Mahasabha adopted the Constitution of
Hindustan Free State Act as an aspirational constitutional document. As
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regards the procedure of assent by Governor in provinces, the document
contained the following provision:
“93. (1) So soon as any bill shall have been passed by both
Chambers it shall be presented to the Governor for the
signification of his assent, and he may signify such assent or
withhold the same.

(2) A bill passed by both Chambers shall become an Act if
the Governor signifies his assent thereto, and that assent has
been published by him.

(3) In case where the Governor withholds his assent to a bill
passed by both Chambers, he shall return the bill for
reconsideration with his own recommendations thereto.

(4) A bill so returned shall be further considered by both
Chambers together with the recommendations made by the
Governor, and if it is reaffirmed with or without amendments
by both Chambers, it shall be deemed to have been assented
to by the Governor, but it shall not become an Act unless and
until the President of the Hindusthan Free State has assented
thereto and that assent has been signified by the President to
and published by the Governor.”


60. A perusal of the above indicates that the Governor had the option of either
assenting to or withholding a bill presented before him. However, in the
latter case, the Governor was under an obligation to return the bill for
reconsideration with his own recommendations, whereupon the provincial
legislature was required to reconsider the bill in light of the
recommendations made. Upon being passed again, with or without
amendments, the bill would be deemed to have been assented to by the
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Governor. However, it would become an Act only upon being assented to
by the President, who would signify his assent to the Governor. Thus, the
President was vested with the power to veto any bill which had not been
assented to by the Governor and was passed again after reconsideration with
or without the amendments recommended by the Governor. This was in
contrast to the position with respect to the Federal Legislature, wherein no
veto power was conferred on the President. The relevant provision read as
follows:
“30. (1) So soon as any bill shall have been passed by both
Chambers, it shall be presented to the President for the
signification of his assent, and he may signify such assent or
withhold the same.

(2) A bill passed by both chambers shall not become an Act
unless and until the President signifies his assent thereto.

(3) In case where the President withholds his assent to a bill
passed by both Chambers, he shall return the bill for
reconsideration to the originating Chamber with his own
amendments thereto.

(4) A bill so returned shall be further considered by both
Chambers together with the amendments recommended by
the President, and if it is reaffirmed with or without
amendments by both Chambers, it shall be deemed to have
been assented to by the President and shall become an Act.”


61. One more document that we would like to refer to is the “Constitution of
Free India: A Draft” authored by M.N. Roy in 1944. The document proposed
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a radically different version of assent to bills as distinguished from the
scheme prevailing under the GoI Act, 1935 or other contemporaneous
aspirational constitutional documents. The document vested no authority in
the Governor to withhold assent to a bill passed by the provincial legislature
or to veto the same. However, the document vested power in the Supreme
People’s Legislature, which was a joint sitting of both the chambers of the
Federal Legislature, to veto any provincial legislation. However, this veto
power was subject to judicial review and the provincial government was
given the right to challenge the veto before the Supreme Federal Court. The
relevant provisions are reproduced hereinbelow:
“ Article 62.
The Supreme People’s Council will have the right to veto any
provincial legislation in the Federal Union on the ground
that it is repugnant to the Federal Constitution or contradicts
any particular Federal law. Either on the advice of the
Council of Ministers or on his own initiative, the Governor
General will recommend the vetoing of a Provincial
legislation. The Provincial Government concerned will have
the right to appeal to the Supreme Federal Court against the
veto.

xxx xxx xxx

Article 91.
The Governor shall sign and promulgate all laws made by
the Provincial People’s Council.”


62. What is interesting to note is that the imagination of a provision as regards
assent to bills, when the country was on the brink of becoming independent
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from the British rule, was significantly different from the previous versions
envisaged in times when the freedom struggle was focused more on
obtaining greater degree of self-rule while being under the sovereignty of
the British Crown, as can be seen in the versions used in the Nehru Report
and the Constitution of India Bill, 1925. The two documents which were
drafted in 1944, and are referred to above, indicate that the Governor was
vested with lesser powers and discretion, and there was a clear inclination
towards a more unitary arrangement insofar as assent to bills was concerned.
The ideas of judicial review of exercise of veto by the President against a
state legislation, mandatory return of the bills for reconsideration upon
withholding of assent, and deemed assent upon reconsideration were being
experimented with among others in the immediate lead up to the framing of
our Constitution.

63. Besides the aspirational constitutional documents referred to above, it is also
pertinent to discuss how assent was envisaged by one of the first indigenous
constitutional documents that was implemented in practice as well. Section
15 of the Aundh State Constitution Act, 1939 that was purportedly enacted
to grant self-rule to the people of the Aundh princely state, laid down the
procedure for assent to bills. The relevant provision read as follows:
“15. (a) All bills shall be passed by a majority of members of
the Legislative Assembly present and voting and shall
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become law only on receiving the assent of Shrimant
Rajasaheb.

(b) If Shrimant Rajasahab, in his discretion, withholds his
assent to a bill which has been duly passed by the Legislative
Assembly, he shall return it to the Legislative Assembly
together with a message requesting that the Legislative
Assembly will reconsider the Bill in the light of his
recommendations, and when a bill is so returned, the
Legislative Assembly shall consider it accordingly.

(c) If the Legislative Assembly accepts the recommendations,
the bill shall forthwith become law; but if it rejects the
recommendations of Shrimant Rajasaheb, he shall have the
right to postpone his assent to the bill till the next session of
the Legislative Assembly. He can so postpone the said bill for
not more than three times. If the said bill, in its original form,
is passed by a simple majority of the members present on all
the three times, it is sent for reconsideration, it shall forthwith
become law.”



64. What is interesting to note in the aforesaid provision is that although it vested
Shrimant Rajasaheb, the King, with the discretion to either assent to a bill
passed by the legislature or to withhold assent thereto, yet it made it
mandatory for him to return the bill to the legislature with a message
requesting them to reconsider the bill in light of his recommendations if he
opted for withholding assent. Further, after a maximum of three rounds of
reconsideration, the bill would become law upon being passed with a
majority, regardless of receiving assent of the King or not.


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65. On the contrary, the Government of Mysore Act, 1940, gave the King
unfettered powers to veto any bill passed by the Legislative Council. The
relevant provision reads as follows:
“28. (1) When a Bill has been passed by the Legislative
Council, it shall be submitted through the Dewan to His
Highness the Maharaja for assent with a statement of the
opinion expressed by the Representative Assembly on the
principles of the Bill or its general provisions.

(2) No such Bill shall become law until it has received the
assent of His Highness the Maharaja.”



66. Having discussed in detail the inception of the concept of assent to bills in
the Indian context and its interaction with the indigenous thought prevailing
at the time, we shall now proceed to discuss the provisions pertaining to
assent as contained in the GoI Act, 1935 and how it was moulded by the
Constituent Assembly into Article 200 of the Constitution.


67. Under the GoI Act, 1935, the Governor was required to act on the aid and
advice of the Council of Ministers responsible to the Provincial legislature.
However, the Governor continued to have some special responsibilities and
he also possessed discretionary powers to act in situations such as prevention
of grave menace to the peace or tranquility of the province, safeguarding the
legitimate interests of minorities and so on. The Governor could also act in
his discretion in specified matters. He functioned under the general
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superintendence and control of the Governor-General, whenever he acted in
his individual judgement or discretion.


68. It is interesting to note that while the framing of the Constitution was being
undertaken by the Constituent Assembly, the GoI Act, 1935 as adapted by
the India (Provisional Constitution) Order, 1947 was made applicable for
the administration of the country. By way of paragraph 3 of the said order,
the expressions “ in his discretion ”, “ acting in his discretion ” and “ exercising
his individual judgement ” were removed/deleted from wherever they
occurred in the GoI Act, 1935. Paragraph 3 read thus:
“3.(1) As from the appointed day, the Government of India
Act, 1935, including the provisions of that Act which have not
come into force before the appointed day, and the India
(Central Government and Legislature) Act, 1946, shall, until
other provision is made by or in accordance with a law made
by the Constituent Assembly of India, apply to India with the
omissions, additions, adaptations and modifications directed
in the following provisions of this paragraph and in the
Schedule to this Order.

(2) The following expressions shall be omitted wherever they
occur, namely, “in his discretion”, “acting in his discretion”
and “exercising his individual judgment”. [...]”


69. Article 147 of the Draft Constitution, prepared by the constitutional adviser,
Shri B.N. Rau, dealt with assent to bills passed by the provincial legislature
and read as follows:
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“147. A Bill which has been passed by the Provincial
Legislature or, in the case of a Province having a legislative
Council, has been passed by both Houses of the Provincial
Legislature 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 where there is only one House of the
Legislature of a Province and the Bill has been passed by that
House the Governor may, in his discretion, return the Bill
together with a message requesting that the House will
reconsider the Bill or any specified provisions thereof and, in
particular, will reconsider the desirability of introducing any
such amendments as he may recommend in his message and,
when a Bill is so returned the House shall reconsider it
accordingly and if the Bill is passed again by the House with
or without amendments and presented to the Governor for
assent, the Governor shall not withhold assent therefrom.”


70. Article 147 as reproduced aforesaid made significant departure from Section
75 of the GoI Act, 1935 as follows:
a. The expression “ in his discretion ” was removed from the substantive
part of the provision. However, the said expression continued to be
present in the proviso to the substantive part.
b. While Section 75 of the GoI Act, 1935 provided for the sending back
of a bill for reconsideration by the legislature in the provinces having
both unicameral and bicameral legislatures, Article 147 only
provided for such reconsideration in the provinces with a unicameral
legislature.
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c. Under Section 75, there was no mandate upon the Governor to
mandatorily assent to a bill when the bill was presented to him for
reconsideration. However, in Article 147, the expression “ shall not
withhold assent therefrom ” was added in the first proviso.


71. Four months after the Draft Constitution was submitted by Shri B.N. Rau,
the Drafting Committee under the chairmanship of Dr. B.R. Ambedkar
submitted the Draft Constitution to the President of the Constituent
Assembly in February, 1948. Article 147 of the Draft Constitution submitted
by the constitutional advisor was adapted with certain structural
modifications as Article 175 of the Draft Constitution, however, in essence
the provision remained the same.

ii. Debates of the Constituent Assembly on Article 200 of the Constitution

72. When Article 175 of the Draft Constitution, 1948 was taken up for
consideration by the Constituent Assembly, certain amendments were
moved by Dr. B.R. Ambedkar that came to be accepted, leading to the
adoption of the draft Article 175 as Article 200 of our Constitution. The
amendments were:

a. To remove the expression “ in his discretion ” appearing in the first
proviso to Article 175;
b. To exclude Money Bills from the purview of the first proviso;
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c. To enable the Governor to return the bills in all the States
irrespective of whether there was a unicameral or a bicameral
legislature.


73. With a view to better understand the intention of the framers of the
Constitution, it is of utmost importance that we turn the pages of the debates
that took place in the Constituent Assembly.

th
74. On the 30 of July, 1949, Dr. B.R. Ambedkar moved an amendment, as
discussed aforesaid, for the substitution of the first proviso under draft
Article 175, which later came to be successfully adopted by the Constituent
Assembly. While moving for the substitution and highlighting that
predominantly three key changes were sought to be made to the first proviso,
he remarked that the words “ in his discretion ” under the draft Article 175
were sought to be deleted because it was felt that “ in a responsible
3
government, there can be no room for the Governor acting on discretion ” .
Shri. Brajeshwar Prasad was not whole-heartedly in favor of the changes
suggested to the first proviso and contended that they would strip the
Governor of the power to veto a bill or reserve it for the consideration of the
President, in his own discretion or initiative and he would be able to do so

3
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only when so advised by his Cabinet of Ministers. In his opinion, the change
also meant that the Governor would not be able to veto a bill that has been
passed twice by the Legislative Assembly, which he felt was not acceptable.


75. Shri. Brajeshwar Prasad acknowledged that there are two classes of cases in
which a bill can be reserved for the consideration of the President – One ,
where a certain Article of the Constitution requires the same and two, when
the Governor is advised by his Ministry to do so. However, he advocated for
a third category i.e., where the Governor would possess the power, in his
discretion, to veto a bill passed by the Legislature, irrespective of whether it
was passed once or twice by it. He supported the vesting of discretion in the
hands of the Governor so that he could veto unjust and unsound legislation
while also ensuring that there is a check on potentially disruptive legislative
tendencies. From his standpoint, the fear of disruptive legislation was not
imaginary but real in our country and he advocated that his proposal was in
consonance with the traditions of the centralized system of Government that
existed in our country until independence. He was of the view that the
parliamentary form of polity was a new experiment to the facts of life in our
country and it was required to be moderated and regulated. Expressing his
lack of confidence in the provincial Ministers, he contended that
empowering the Governor to act in his discretion would not be so
objectionable since the Governor is also the representative of the
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Government of India and it is by virtue of this position that his views must
prevail over those of the State legislature.

76. On the other hand, during the course of the debate, Shri. Shibban Lal Saxena,
addressed the practical realities of assigning such a discretion to the
Governor who is a nominee of the President, especially when the party in
power in the province may not be the same as the party in power at the
Centre. In such a scenario, it was his opinion that, “it will introduce a very
wrong principle to give the Governor this power to go against the express
4
wish of the Assembly and even of the council ” .


77. Shri. T.T. Krishnamachari also emphasized that under the newly proposed
draft Article 175, more specifically the first proviso, the Governor will not
be exercising his discretion in the matter of referring a bill back to the House
with a message. The Governor would exercise his power under the first
proviso only upon the advice of his Council of Ministers. According to him,
the first proviso was to be exercised in situations wherein the House has
already accepted and endorsed a provision, but the Ministry was of the
opinion that certain modifications are required to be made in the said
provision. It is only when such an occasion arises that the procedure

4
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envisaged under the first proviso would be resorted to. The Council of
Ministers would use the Governor to hold up further proceedings of the bill
and remit it to the Lower House with the message informing the legislature
about the modifications sought to be made to the bill by the Ministry. He
drew attention to the words of Dr. Ambedkar on this aspect and stated as
follows:
“[...] If he construes that this Amendment is worse than the
proviso in the draft Article and that it makes for further
dilatoriness in the proceedings of the legislatures in the
provinces or the States as the case may be, 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 advice 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 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
5
remit it back to the Lower House with his message.”


78. The first proviso, according to him, was therefore a saving clause which
vested power in the hands of the Ministry to remedy a hasty action that they

5
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might have undertaken with respect to the bill in question, or, it could also
be seen as providing some scope to the Ministry to take certain additional
actions that the Ministry feels should be taken in order to meet the popular
opinion reflected outside the House in some form or another. Therefore, the
operation of the first proviso does not abridge the power of the Legislature
or the Ministry responsible to it, rather, it further curtails the Governor’s
power from the position that was envisaged in the original first proviso,
which is now sought to be supplanted.

79. In light of the debate which took place as regards the substitution of the first
proviso to draft Article 175, the amendment was put to vote and the same
was successfully adopted by the Constituent Assembly.

th
80. On 17 of October, 1949, T.T. Krishnamachari moved an amendment that a
second proviso to Article 175 also be added, which later came to be adopted
by the Constituent Assembly. Dr. B.R. Ambedkar elucidated that the second
proviso that was proposed to be moved, was a part of the Instrument of
Instructions issued to the Governor of the provinces under the GoI, 1935.
Paragraph 17 of the Instrument of Instructions read as follows:
“Without prejudice to the generality of his powers as to
reservation of Bills our Governor shall not assent in our
name to, but shall reserve for the consideration of our
Governor-General any Bill or any of the clauses herein
specified, i.e. (b) any Bill which in his opinion would, if it
became law so derogate from the powers of the High Court
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as to endanger the position that that Court is, by the Act,
designed to fulfil.”


81. Such a clause was initially supposed to be included in the Fourth Schedule
that separately contained instructions to the Governors of the States.
However, since it was considered unnecessary to have such a separate
Schedule, this particular aspect was sought to be brought in as second
proviso to the draft Article 175. A need to incorporate the second proviso
was felt because the High Courts were placed under the legislative
competence of the Centre as well as the States. In so far as the organization
and territorial jurisdiction of the High Court was concerned, the power
remained with the Centre. However, with regard to the pecuniary
jurisdiction and the jurisdiction in relation to any of the matters which are
mentioned under List II, the power rests with different States. Therefore,
there could arise a scenario wherein the State legislature would enact a bill
which would derogate from the powers of the High Court. For example,
passing a bill that reduces the pecuniary jurisdiction of the High Court by
raising the value of the suit that may be entertained by the High Court. This
would be one method whereby the State legislature would diminish the
authority of the High Court. Furthermore, a bill could also affect the subject-
matter jurisdiction of a High Court. For example, in enacting any measure
under any of the entries contained in List II, say, debt cancellation, it would
be open for the provinces or States to say that the decree made by any such
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Court or Board shall be final and conclusive, and that the High Court should
not have any jurisdiction in the matter at all. In light of such possibilities, it
was felt that the second proviso to draft Article 175 must be added.

82. It was the opinion of Dr. B.R. Ambedkar that any such bill or Act as
illustrated above would amount to a derogation from the authority that the
Constitution confers or intends to confer upon the High Court. This is why
it was felt necessary that before such a law becomes final, the President must
be given an opportunity to examine whether such a law should be permitted
to take effect or not. Such a shield was considered imperative keeping in
mind the important constitutional position that the High Courts hold in
adjudicating disputes. Dr. B.R. Ambedkar had emphasized on the
importance of the second proviso as follows:
“I, therefore, submit that in view of the fact that the High
Court is such an important institution intended by the
Constitution to adjudicate between the Legislature and the
Executive and between citizen and citizen such a power given
to the President is a very necessary power to maintain an
important institution which has been created by the
Constitution. That is the purpose for which this amendment
6
is being introduced.”


6
10, C ONSTITUENT A SSEMB . D EB ., (Oct. 17, 1949) 394.
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E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS
POST THE COMMENCEMENT OF THE CONSTITUTION .


If we could roll back History
A century, let's say,
And start from there,
I'm sure that we
Would find things as to-day:
In all creation's cosmic range
No vestige of a change”

~ Robert William Service

83. We are tempted to preface this part of our judgment with the enlightening
words of Robert William Service, keeping in mind the history of our country
which has been fraught with instances of friction in the federal polity from
its inception, with the Governor occupying the center stage in this ongoing
saga.

84. As the democratic polity of the country unfolded post-independence, the
predominance of a single party at the union and provincial level gave way
to emergence of new political factions and regional parties. As a
consequence, the position of the Governor, which had mostly been latent
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during the era of single-party dominance, started to assume importance.
Allegations also came to be levelled by a number of State Governments that
the Governor in a number of States was acting as an agent of the Central
Government and the objectivity that was expected of the Governor was not
being displayed, more particularly when it came to reservation of bills for
the consideration of the President or recommendation for the imposition of
emergency under Article 356. In light of the aforesaid, certain commissions
came to be constituted which submitted their reports after undertaking
exhaustive analysis of the working of the constitutional machinery
prescribed for Centre-State relations. One of the key foci of these reports
was the working of Articles 200 and 201 of the Constitution respectively
and the scope of exercise of discretion by the Governors, which we deem
appropriate to discuss hereinafter.


i. First Administrative Reforms Commission, 1966.

85. The First Administrative Reforms Commission (the “ ARC ”) was
established in January 1966 by a resolution of the Ministry of Home Affairs
to examine the public administration of the country and make
recommendations for reform and reorganization where necessary. An aspect
of this exercise was the examination of Centre-State relations particularly
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with respect to the need for national integration, and for maintaining
efficient standards of administration throughout the country.

86. While examining the various facets of Centre-State relations, the
Commission found it apposite to discuss the role of the Governor in the
political context which existed back then. Taking note of the skirmishes
between the State governments and Governors, the Commission was of the
view that the Governor’s office ceased to be merely ornamental and
ceremonial. This changed role demanded a scrutiny of the discretionary
powers of the Governor.

87. As the discretionary powers of the Governor affect some of the vital issues
in the functioning of democratic governments in the States, the ARC
underscored the importance of evolving guidelines to enable the exercise of
such discretionary powers for the purpose of preserving and protecting
democratic values. It was noted that such guidelines would serve the purpose
of securing uniformity in action and eliminate all suspicions of partisanship
and arbitrariness.

88. The ARC, therefore, recommended the following:
“Recommendation 9:
We recommend:

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Guidelines on the manner in which discretionary powers
should be exercised by the Governors should be formulated
by the Inter-State Council and on acceptance by the Union
issued in the name of the President. They should be placed
before both Houses of Parliament.”



89. However, no such guidelines have been formulated by the Inter-State
Council till date and none of the Commissions on Centre-State relations
constituted thereafter made any recommendations on the issuance of
guidelines for exercise of discretion by the Governor.

ii. Rajamannar Commission, 1971

90. The Rajamannar Commission was set up by the Government of Tamil Nadu
in 1969 under the chairmanship of Dr. P.V. Rajamannar to look into the
question regarding the relationship that should subsist between the Centre
and States in a federal set-up. The Commission noted that in the changed
political circumstances, there can be no dispute regarding the fact that the
Governors have a positive role to play in the stability and progress of States.
This requires that the authority of the Governor should be clearly spelt out
and the Governors should no longer consider themselves to be instruments
of the Centre under compulsion to act on its directions and in its political
interests.
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91. One of the questions on which the Commission addressed itself was whether
the Constitution provides for the exercise of any power by the Governor in
his discretion that is, whether the Governor could exercise any of his
functions without consulting the Ministry or contrary to the aid and advice
tendered by the Council of Ministers.

92. To answer this question, the Commission adverted to the history of the
making of the Constitution and concluded that the Constitution does not
provide for the issue of any instructions to the Governor, nor does it vest any
discretionary powers in express terms in the Governor, except in relation to
certain specified matters. While referring to certain judicial pronouncements
of this Court as well as Granville Austin’s seminal work on the Indian
Constitution, the Commission opined that the discretion of the Governor
must be limited to those matters in respect of which there are express
provisions in the Constitution. The relevant portion of the report is
reproduced below:
“6. The question as to the discretionary functions of the
Governor was considered by the Supreme Court in Ram
Jawaya v. State of Punjab (A.I.R. 1955 8.C. 549 at page 556).
The Supreme Court held that the Governors were
constitutional heads of the executive, and that real executive
power was vested in the Council of Ministers. A similar view
has been expressed by the Supreme Court in T. M. Kanniyan
v. 1.T.O., Pondicherry (A.I.R. 1968 S.C. 687). Again,
Granville Austin in his book The Indian Constitution—
Cornerstone of a Nation has categorically stated that the
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Governor occupies the same position as the English Monarch
and that the Governor has to act in accordance with the
advice of his Cabinet in all matters. To place the matter
beyond doubt, Article 163 (1) may be modified making it
clear that the reference to discretion is only in relation to the
matters in respect of which there are express provisions, e.g.,
Assam.”
(Emphasis supplied)

93. The Commission observed that while exercising his functions, the Governor
should not be under any pressure from an external authority. To explain the
position of discretionary powers of the Governor, the Commission referred
to the speech of the former Vice President of India, Shri G.S. Pathak, which
reads thus:
“He is the constitutional head of the State to which he is
appointed, and, in that capacity, he is bound by the advice of
the Council of Ministers of the State except in the sphere
where he is required by the Constitution, expressly or
impliedly, to exercise his discretion. In the sphere in which
he is bound by the advice of the Council of Ministers, for
obvious reasons, he must be independent of the Centre.
‘There may be cases where the advice of the Centre may clash
with the advice of the State Council of Ministers. In the
sphere in which he is required by the Constitution to exercise
his discretion, it is obvious again that it is His discretion and
not that of any other authority and therefore his discretion
cannot be controlled or interfered with by the Centre.”

(Emphasis supplied)

94. However, in the same vein, it was also noted that the Governor has to
function in a dual capacity as (1) the appointee of the central government;
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and (2) the constitutional head of the State. This is because the Central
Government retains the power to appoint and remove the Governor,
therefore, the Governor cannot but look to the Central Government for
guidance in the discharge of his duties.

95. The Commission was of the opinion that it is necessary to indicate at least a
broad outline of the principles that should guide the Governor in the exercise
of discretion, if any, vested in him. It was observed that the evolution of
rules and guidelines in this respect is especially important in order to
reconcile the actions of the Governor in his capacity as an agent of the Centre
and the head of the State Executive.

96. Having discussed the discretion of the Governor in matters of constitutional
decision-making at length, the Commission recommended that a specific
provision should be inserted in the Constitution to enable the President to
issue Instruments of Instructions to the Governors laying down guidelines
or principles with reference to which the Governor should act including the
occasions for the exercise of discretionary powers.

iii. Sarkaria Commission

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97. In June 1983, the Central government headed by the former Prime Minister
of India, Ms. Indira Gandhi, formally constituted a commission to examine
and review the working of the arrangements between the Union and States
in regard to powers, functions and responsibilities in all spheres and to
recommend such changes or other measures as may be deemed appropriate.
The said commission was formed under the chairmanship of a former judge
of this Court, Justice R.S. Sarkaria and hence, came to be known as the
Sarkaria Commission.

98. The Sarkaria Commission was enjoined with the task of reviewing the
Centre-State relationship and consider the importance of unity and integrity
of the country for promoting the welfare of the people. One of the facets of
such review was to discuss the scope of the role of the Governor and its
impact on the federal polity of India.

99. For a number of years after the independence of India, the political scene
was dominated by a single party and there was little occasion for strife
between the central and state governments. The role of the Governor,
therefore, remained latent. However, post-1967, the emergence of new
regional political parties led to a discord between the central government
and those state governments that came to be led by such new regional
parties. These developments engendered political instability in several
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states, as a result of which, the Governors were called upon to exercise their
discretionary powers more frequently, particularly in recommending
President’s rule and in reserving State bills for the consideration of the
President.

100. The role of the Governor in giving assent to State bills, withholding assent
therefrom or reserving such bills for the consideration of the President, thus,
assumed importance. By virtue of Articles 200 and 201 of the Constitution
respectively, the office of Governor became a major stakeholder for the
maintenance of a cordial relationship between the central and state
governments. The Sarkaria Commission was, therefore, tasked with
providing recommendations regarding the interpretation of the said Articles
and amendments therein to strengthen the federal polity of India.

101. To the limited extent of studying the issues arising from the exercise of
powers under Articles 200 and 201 respectively, the Commission addressed
itself on the following broad points:
(i) Scope of Governor’s discretion under Article 200;
(ii) Interplay of Articles 200 and 254 respectively of the Constitution;
(iii) Scope of Union Executive’s discretion under Article 201;
(iv) Impropriety of conditional assent by the President;
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(v) Essentials for a “reference” of State bills to the President for his
consideration;
(vi) Delays in disposal of State bills;
(vii) Withholding of assent by the President.

102. A discussion of the recommendations of the Commission in this regard
would be beneficial to our examination of Articles 200 and 201 respectively
and the role of the Governor in the contemporary federal polity.

a. Scope of Governor’s Discretion Under Article 200

103. The Commission observed that the rule is that the Governor shall perform
his functions on the aid and advice of the Council of Ministers of the State
and the exercise of discretionary powers by him is the exception. The
Commission envisaged that discretionary powers of reservation of a bill
under Article 200 should be exercised by the Governor only in rare cases
where a bill is patently unconstitutional in his opinion. However, the
Governor should not act contrary to the aid and advice of the Council of
Ministers merely because he, in his personal capacity, does not favour the
policy embodied in the bill. The relevant observations of the Commission
are reproduced below:
“5.6.13 We are, therefore, of the view that:
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(i) Normally, in the discharge of the functions under Article
200, the Governor must abide by the advice of his Council of
Ministers. However, in rare and exceptional case, he may act
in the exercise of his discretion, where he is of opinion that
the provisions of the Bill are patently unconstitutional, such
as, where the subject-matter of the Bill is ex-facie beyond the
legislative competence of the State Legislature, or where its
provisions manifestly derogate from the scheme and
framework of the Constitution so as to endanger the
sovereignty, unity and integrity of the nation; or clearly
violate Fundamental Rights or transgress other
constitutional limitations and provisions.

(ii) In dealing with a State Bill presented to him under Article
200, the Governor should not act contrary to the advice of his
Council of Ministers merely because, personally, he does not
like the policy embodied in the Bill.”


104. According to the Commission, the scheme of the Constitution indicates that
the Governor’s opinion at best, is persuasive. The Governor cannot, in any
circumstance, exercise dictatorial powers to override or veto the decisions
or proposals of his Council of Ministers. The scope of discretionary powers
should be construed in the context of a parliamentary democracy with a
responsible government. In such a form of government, the role of a formal
head of the State cannot be enlarged at the cost of the real executive, which
enjoys the confidence of the people as it is responsible to the State
legislature.

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105. Discretion, in exercise of powers under Article 200, therefore, should be
dictated by reason, actuated by good faith and tempered by caution.
Discretionary functions should be performed in public interest and cannot
be discharged at the dictation of any outside authority unless so authorized
by and under the Constitution.

106. While addressing suggestions of some State governments that the
discretionary powers of the Governor must be curtailed or removed as it
presents a potential threat to the autonomy of the States, the Commission
observed that the makers of the Constitution advisedly refrained from
putting such discretionary powers in a straitjacket rigid definition. It noted
that the Constitution is ever evolving and the ways in which its provisions
and principles may be tampered with or circumvented, cannot be foreseen.
Therefore, the office of the Governor should be afforded enough flexibility
to react in any situation and his discretion to approach a matter cannot be
pre-determined.

b. Interplay of Articles 200 And 254 respectively of the Constitution.

107. Article 246(2) endows the Parliament as well as the State legislatures with
the competence to legislate on entries under List III i.e., the concurrent list.
The provision under Article 254 is appurtenant to the concurrent exercise of
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legislative competence by the Parliament and State legislature insofar as
there is any inconsistency or repugnancy between the laws of the respective
legislatures.

108. Article 254(1) saves the power of the State legislatures to make laws with
respect to matters in the concurrent list from being automatically superseded
by the operation of the doctrine of repugnancy. Article 254(2) allows a law
enacted by the State legislature and repugnant to the central law on the same
subject-matter, to operate and prevail in that State provided that such State
law receives the assent of the President.

109. The Commission highlighted that clause (2) of Article 254 is applicable only
when the following two conditions are cumulatively met:
(a) There is a valid Union law on the same subject-matter occupying the
same field in the Concurrent List to which the State legislation relates.
(b) The State legislation is repugnant to the Union law. That is to say, there
is a direct conflict between the provisions of the two laws, or the Union
law is intended to be an exhaustive code on the subject-matter in
question.
It is upon satisfaction of both these conditions that the Governor can reserve
a bill for Presidential consideration under Article 254(2).

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110. It was noted by the Commission that the assent by the President to the State
bills had been withheld on certain occasions on the ground that the Union
was contemplating a more comprehensive legislation on the same subject
matter. However, withholding of assent on such a premise at the level of the
Union may unnecessarily delay or defeat the measures sought to be taken by
the State legislature. Since the Parliament retains the power to amend, vary
or repeal such a State legislation, even after its enactment, by passing a
subsequent law inconsistent therewith, the Commission recommended that
Presidential assent should not ordinarily be withheld on the ground that the
Union is contemplating a comprehensive law in future on the same subject-
matter.

c. Scope of Union Executive’s Discretion under Article 201


111. As per the report of the Commission, a State bill, once reserved for the
consideration of the President (upon the aid and advice of the Council of
Ministers), is made subject to the procedure prescribed under Article 201
and the Union Executive is entitled to examine it from all angles such as,
inter alia , conformity to legislative or executive policy of the Union,
harmony with the scheme and provisions of the Constitution, vires of the
bill, etc.

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112. On the question of the Union Executive’s discretion to withhold assent to a
State bill on the ground of non-conformity with its policy, the Commission
sounded a note of caution saying that policy considerations should not
ordinarily be treated as a valid ground for withholding Presidential assent.
Article 201 confers supervisory powers on the Union Executive to enable it
to secure a broad uniformity across central and state legislations in the
interests of the social and economic unity of the country. However, the said
provision cannot act as a measure for the Union Executive to bring to a
grinding halt a State bill by withholding assent thereto if such a bill does not
conform to its policy in general.

113. Further, the Union Executive is required to exercise utmost caution,
circumspection and restraint in the exercise of supervisory powers under
Article 201, especially in respect of the bills on subject matters that fall
within the State List. In this regard, the Commission recommended that as a
matter of convention, the President should not withhold assent only on
consideration of policy differences on matters relating, in pith and substance,
to the State List, except on the grounds of patent unconstitutionality.

114. The Commission did not make any specific prescription in respect of Article
143 of the Constitution, which enables the President and by extension, the
Union Council of Ministers to seek the opinion of the Supreme Court in
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respect of bills which may be deemed to be unconstitutional and left the
decision up to the President to make such a reference in appropriate cases.

d. Impropriety of Conditional Assent by the President

115. The Commission noted that the scheme of the Constitution providing for
reservation of State legislations for the consideration and assent of the
President, is intended to subserve the broad purpose of cooperative
federalism in the realm of Union-State legislative relations. Therefore, the
practice of according assent to a State bill by the President on the reciprocal
assurance that the changes suggested by him (or the Union Executive) will
be carried out by way of an ordinance, was not considered to be ideal
especially when there exists a constitutional remedy under the proviso to
Article 201 itself.

116. Since, conditional assent may become a tool for the Centre to dictate its
policies to the States by attaching conditions to Presidential assent, the
Commission, in cognizance of the impropriety of such a practice,
recommended that in cases where the Union Government is of the opinion
that some amendments to a State bill are essential before it becomes a law,
such bill should be returned through the Governor to the State legislature for
reconsideration in terms of the proviso to Article 201.
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e. Essentials for a “Reference” of State Bills to the President for his
Consideration

117. The Commission, cognizant of the misgivings and irritations in Union-State
relations due to delays in the process of securing Presidential assent,
recommended that the procedure of making a reference to the President by
the State Government through the Governor and the consideration thereof
by the Union Government must be streamlined. It was also endorsed that the
Governments at both the Centre and State level may benefit from a prior
consultation at the stage of drafting of the bill itself and prescribing time-
limits for disposal, which ought to be made convention and practice.


118. As regards the suggestion of streamlining the procedures involved in
reserving a State bill for consideration of the President, the Commission
recommended that every reference from the State should be complete and
clearly established. Such reference should set out precise material facts,
points for consideration and the reason for making a reference to the
President. Accordingly, the Commission recommended the following
information to be necessarily provided for ensuring that the reference to the
President is self-contained:
“5.15.01— To facilitate its speedy examination by the Union
Executive, every reference of a State Bill from the State
should be self-contained, setting out precisely the material
facts, points for consideration and the ground on which
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reference has been made. It should contain information on
the following points:
a. The relevant provisions of the Constitution attracted or
applicable, with reasons.
b. If the reference is made under Article 254(2), clear
identification of the provisions of the Bill which are
considered repugnant to, or inconsistent with, the
specific provisions of a Union law or an existing law.
c. Urgency, if any, of passing the law within a certain
time-limit.
d. A clear statement that the Bill is being reserved as per
the advice of the Council of Ministers, or in the
exercise of his discretion by the Governor, with
reasons for the same.
e. A lucid explanatory note on the intended policy behind
the legislation instead of merely referring to the
objects and reasons of the Bill.
f. An indication whether the Bill was sent for prior
scrutiny of the Union Government, and if so,
deviations, if any, from the prior reference.”

(Emphasis supplied)


f. Delays in Disposal of State Bills

119. The question whether there was a requirement of introducing time-limits in
Article 201 was necessary or not was also looked into by the Commission.
It was reiterated that streamlining the procedure of reserving a State bill for
Presidential consideration and enabling a mechanism for high-level
discussions between the Union and State at the stage of drafting such bill
may effectively reduce procedural delays at the level of the Union
Government. Nevertheless, it was recommended that the Union and State
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Governments should adopt definite timelines for processing State bills and
disposing of their references to the President.

120. With regard to prescription of such timelines, the Commission proposed the
following timelines to be treated as salutary conventions:

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121. With a view to ensure that the timelines so suggested are not frustrated by
lack of clarity and comprehensiveness in a reference, the Commission
underscored the importance of a self-contained communication by the
President to the State legislature for clarification or reconsideration of the
bill. It was emphasized that clarifications to be sought by way of the proviso
to Article 201 should not be piecemeal.

122. While the Commission noted the significance of clear timelines for the
exercise of powers under Articles 200 and 201 respectively, it did not
recommend any amendments to the said Articles for introducing concrete
time periods within the constitutional scheme and left its recommendations
in this regard at the stage of conventions only.

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g. Withholding of Assent by the President

123. As regards the withholding of Presidential assent, the Commission laid great
emphasis that the Union Government ought to communicate to the State
government, the reasons therefor. It was noted that the Union Government
should enter into the practice of discussing the issues present in the bill with
the State Government and making an effort to present its point of view to
the State Government with reasons.

h. Recommendations given by the Commission

124. Before concluding the discussion on the aspect of reservation of bills by the
Governor for consideration of the President, the Commission noted that
needless reservation of bills should be avoided. The constitutional scheme
does not envisage indiscriminate reservation of bills, especially when it is
being done in his discretion, as the same would be subversive of the federal
principle and the supremacy of the State legislature.

125. The Commission classified State bills to be reserved for the consideration of
the President as follows:
“5.1.05 State Bills reserved for President's consideration
under the Constitution, may be classified as follows: —

i. Bills which must be reserved for President's
consideration
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In this category come Bills —
(i) which so derogate from the powers of the High Court,
as to endanger the position which that Court is by this
Constitution designed to fill (Second Proviso to Article
200);
(ii) which relate to imposition of taxes on water or
electricity in certain cases, and attract the provisions
of Clause (2) of Article 288; and
(iii) which fall within clause (4) (a) (ii) of Article 360,
during a Financial Emergency.

ii. Bills which may be reserved for President's
consideration and assent for specific purposes
(i) To secure immunity from operation of Articles 14 and
19. These are Bills for—
(a) acquisition of estates, etc. [First Proviso to Article
31A(I)];
(b) giving effect to Directive Principles of State Policy
(Proviso to Article 31C).
(ii) A Bill relating to a subject enumerated in the
Concurrent List, to ensure operation of its provisions
despite their repugnancy to a Union law or an existing
law, by securing President's assent in terms of Article
254(2).
(iii) Legislation imposing restrictions on trade and
commerce requiring Presidential sanction under the
Proviso to Article 304(b) read with Article 255.

iii. Bills which may not specifically fall under any of the
above categories, yet may be reserved by the
Governor for President's consideration under Article
200 .”
(Emphasis supplied)

126. The Commission recommended that bills should be reserved only if required
for specific purposes falling in the first two classes as extracted hereinabove.
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iv. Punchhi Commission

127. Another Commission on Centre-State relations was constituted by the
Government of India in 2007 under the chairmanship of Justice Madan
Mohan Punchhi, the former Chief Justice of India. The Commission was
tasked with the mandate of reviewing the existing arrangements between the
Union and States as per the Constitution of India in regard to powers,
functions and responsibilities in all spheres including legislative relations,
administrative relations, role of Governors, emergency provisions, etc. and
recommending such changes as may be appropriate keeping in view
practical difficulties, growing challenges of ensuring good governance and
the need for strengthening the unity and integrity of the country.

128. The Commission, inter alia , looked at the original scheme of the Centre-
State relations as laid down by the Constitution, examined the friction points
in the working thereof and reviewed the adequacy of the constitutional
arrangements for promoting social welfare and good governance. One aspect
of this study involved looking minutely into the role of the Governor in the
federal polity of India. The Commission noted that the role of the Governor
became important as he had to balance the political considerations between
the Centre and State and be as impartial as possible.

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129. However, as regional political powers grew at the State level, the role of the
Governor came to be a point of contention between the Centre and States
with the latter leveling allegations of partiality and lack of objectivity in
exercise of the Governor’s discretionary powers. As a result, the
Commission was enjoined with the task of providing recommendations for
better working of the office of the Governor.

a. Role of the Governor

130. The Commission observed that the nature and scope of rights and powers of
the Governor should be understood in the context of a Cabinet system of
government. Under such system, the Governor performs a multi-faceted
role. First, as constitutional head of the State, he has a right to be consulted,
to warn and encourage. In performance of this role, the Constitution makers
ideated the office of Governor to perform the role of a “a friend, philosopher
and guide” to his Council of Ministers. Secondly, the Governor functions as
a sentinel of the Constitution and acts as the Union’s representative in the
State. As observed by this Court in Rameshwar Prasad & Ors. v. Union of
India reported in (2006) 2 SCC 1 , the Governor discharges “dual
responsibility” to the Union and State.

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131. Further, the Constitution affords the Governor only a persuasive role and not
dictatorial powers to override or veto the decisions or proposals of his
Council of Ministers. The Commission observed that the Governor, at best,
has powers of giving advice or counselling for further reflection of the
decision taken by the Council of Ministers. The Governor only flags a need
for caution for the purpose of bridging the understanding between the
Government and opposition (if there are different governments at the central
and state level).

132. The Governor is not amenable to the directions of the Union government,
nor does the Constitution make him accountable to the Centre for the manner
in which he carries out his functions and duties. The office of Governor is
an independent constitutional office. The Governor, by virtue of Article 163,
however, is bound by the aid and advice of the State Council of Ministers.
Therefore, in the event of a conflict between the aid and advice of the State
Council of Ministers and the dictates of the Central Government, the scheme
of the Constitution indicates that the Governor must adhere to the former.

133. With the broad tenets of the role of the Governor under the constitutional
scheme, the Commission, while appraising the existing framework of
Centre-State relations, observed that a major point of friction between the
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Centre and States is the power of the Governor to reserve any State bill for
the consideration of the President, sometimes even for an indefinite period.

b. Discretionary Powers of the Governor

134. Upon a perusal of Article 163(2), the Commission was of the view that the
said provision gives the impression that the Governor has a wide and
undefined area of discretionary powers. However, the scope of the
discretionary powers of the Governor has to be narrowly construed. The
language of Article 163(2) cannot be taken to mean that the Governor has a
general discretionary power to act against the aid and advice of the Council
of Ministers.

135. In continuation to the Sarkaria Commission’s views on the question of
discretionary powers of the Governor, the Punchhi Commission report also
asserts that the area for the exercise of discretion is limited and even in this
limited area, the Governor’s choice of action should neither be nor appear to
be arbitrary or fanciful. It must be a choice dictated by reason, actuated by
good faith and tempered with caution.

136. The Commission further emphasized the necessity of prescribing time limits
for the exercise of powers under Articles 200 and 201 respectively in order
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to ensure that discretionary powers are not exercised by the Governor or the
President in a manner that undermines the State legislature and the will of
the people.

c. Expediency in Disposal of Bills – Timelines Suggested by the
Report of the Commission

137. The Commission suggested that definite timelines ought to be adopted as
salutary conventions for the Governor to either provide assent or reserve the
bill for the consideration of the President. Similarly, there should be a time
limit for the President to take a decision on the State bill under Article 201
of the Constitution. The Commission was of the view that concrete timelines
are sine qua non for the exercise of powers under Articles 200 and 201
respectively so as to avoid dissensions between the Central and State
governments.

138. The Commission noted that the substantive part of Article 200 does not
stipulate time period within which the Governor has to either assent,
withhold assent or reserve the bill for Presidential consideration. The
requirement of expediency is incumbent upon the Governor only when he
decides to return the bill to the State legislature for reconsideration. The
same was considered to be evident from the expression “ as soon as
possible ”.
W.P. (C) No. 1239 of 2023 Page 125 of 414

139. The Commission noted that while the expression “ as soon as possible ” is
mentioned in Article 200 albeit only in the first proviso thereof, there is no
such compulsion on the President under Article 201. As a result, the
President or the Union Government may kill the bill by not taking a decision
on the same, sometimes for the entire duration of the State legislature. This
increases the scope for abuse of discretion by the Union government based
on political considerations particularly when the ruling party in the State
concerned is different from the one enjoying power at the Union level. The
lack of a reasonable timeline allows the executive fiat to make inroads into
the legislative power of the State thereby thwarting the democratic will of
the State legislature. Such invasion of the powers of the State legislature by
the Union Executive is questionable in the context of ‘basic features’ of the
Constitution.

140. Therefore, the Commission suggested that a period of six months should be
prescribed in Article 201 for the President to decide on assenting or
withholding assent to a bill reserved for consideration of the President. In
case the President on the aid and advice of the Union Council of Ministers,
is unable to give assent to a State bill under Article 201, it is desirable for
him to make a reference to the Supreme Court under Article 143 for an
opinion. Such reference should be done as a matter of practice in order to
W.P. (C) No. 1239 of 2023 Page 126 of 414

avoid allegations of political bias, while securing the dignity and authority
of the State legislature.
d. Recommendations


141. Having considered the challenges in the exercise of powers under Articles
200 and 201 respectively, the Commission reiterated the recommendations
of the National Commission to Review the Working of the Constitution
(“ NCRWC ”), which are reproduced hereinbelow:
“After considering the suggestions given by the Sarkaria
Commission, the National Commission to Review the
Working of the Constitution gave the following
recommendations:

(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 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
W.P. (C) No. 1239 of 2023 Page 127 of 414

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.”

(Emphasis supplied)

142. The report of the Punchhi Commission advocated for the immediate
implementation of the above-mentioned recommendations by way of a
Constitutional Amendment.

F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS

143. The tenets of parliamentary democracy demand that while the head of state
must act on the advice of ministers, the ministers, in turn, must uphold their
responsibility to the people when providing that advice. Indeed, the very
raison d’être of a democratic government is to uphold the primacy of the
Parliament by ensuring executive accountability. This has been aptly put
W.P. (C) No. 1239 of 2023 Page 128 of 414

forth by Nicholas Barber, Professor of Constitutional Law and Theory at the
Oxford University, in his work ‘ Can Royal Assent Be Refused on the Advice
7
of the Prime Minister? ’ wherein he argues:
“The point of the convention on royal assent is to uphold the
primacy of the democratic element of the constitution in the
making of law. But just as it would be undemocratic to allow
one person – the Monarch – to veto legislation, so too it
would be undemocratic to give this power to the Prime
Minister. In short, when presented with a bill that has passed
through Parliament in a proper manner, the duty of the
Monarch is to give assent – irrespective of the advice of her
Ministers. There is no room for discretion. On its best
interpretation, this is what the convention requires: if the
Monarch were to accept the advice of her Prime Minister on
this issue, she would be acting unconstitutionally.”

a. United Kingdom


144. The position in the United Kingdom is that once a bill has passed through
all parliamentary stages in both Houses, it is poised for the conferment of
‘royal assent’. Historically, the Sovereign granted assent to bills in person
in the House of Lords, attended by the Lords Commissioners. This formal
ceremony was known as the ‘Royal Assent ceremony’. The Royal Assent
ceremony continued until 1967, when the British Parliament passed the
Royal Assent Act wherein the requirement of grant of assent in person by the
monarch was made voluntary. Although granting assent is a personal

7
Nicholas Barber, Can Royal Assent Be Refused on the Advice of the Prime Minister?, UK
C ONSTITUTIONAL L AW A SSOCIATION (Apr. 7, 2025, 9:45 PM),
https://ukconstitutionallaw.org/2013/09/25/nick-barber-can-royal-assent-be-refused-on-the-advice-of-
the-prime-minster/.
W.P. (C) No. 1239 of 2023 Page 129 of 414

prerogative of the monarch, yet it has long been an established convention
that the monarch does not withhold it for a bill that has received approval
from both Houses. The process of Royal Assent comprises two stages: first,
the signification of the royal assent to a bill via the Royal Sign Manual on
Letters Patent issued under the Great Seal of the Realm; and secondly, the
communication of the King’s Assent to both Houses of Parliament. In the
United Kingdom (UK), royal assent is regarded as a formality and has not
been refused to a bill since Queen Anne’s reign in 1707.

145. In Parliament of the UK, the procedure for obtaining Royal Assent begins
with officials in the Public Bill Office of the House of Lords that manages
and assists the processes relating to the House’s consideration of public
legislation. First, a list of bills is prepared by the Clerk of the Parliaments.
Thereafter, once a date for Royal Assent has been set, all the bills approved
by both Houses are presented before the monarch for assent. In this regard,
the monarch has no power to withhold assent to a bill, regardless of any
8
instructions from the Government or anyone else. In Scotland, a period of
four weeks is allowed before a bill is presented to the Queen for assent,
during which any legal objections may be raised.


8
OUSE OF OMMONS IBRARY
David Torrance, Royal Assent, H C L (Feb. 26, 2024),
HTTPS :// RESEARCHBRIEFINGS . FILES . PARLIAMENT . UK / DOCUMENTS /CBP-9466/CBP-9466. PDF .
W.P. (C) No. 1239 of 2023 Page 130 of 414

146. The only ground on which assent may be withheld, that too solely on
ministerial advice, is if the bill has failed to comply with mandatory
procedural requirements or if there has been a change in government
between the bill’s approval and its presentation for assent. Section 4 of the
Judicial Committee Act, 1833 provides that the Sovereign may refer a bill to
the Judicial Committee of the Privy Council for an advisory opinion on
whether such bill contravenes a fundamental constitutional principle.
However, the position in the UK does not clarify whether the Sovereign can
initiate such a referral independently.

b. Canada

147. Canada’s Royal Assent ceremony traces its origins to the United Kingdom.
Traditionally, once a bill was passed in identical form by both the Senate
and the House of Commons, the Governor General, as the Crown’s
representative, attended the Parliament to provide Royal Assent to such bill.
In absence of the Governor General, a Justice of the Supreme Court of
Canada acting as Deputy to the Governor General is presented the bills for
Royal Assent. The Governor General signs a Declaration of Royal Assent,
witnessed by the Clerk of the Parliaments.

148. Section 3 of the Royal Assent Act, 2002 (Can) provides that assent may be
given ‘in Parliament assembled’ or through a written declaration, provided
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it is witnessed by more than one member from each House. The Act
stipulates that the Royal Assent must be given in the Senate Chamber at least
twice a year and for the first appropriation bill of each session of the
Parliament. In all other cases, such assent may be granted by the Governor
General or her Deputy by written consent. At the provincial level, assent is
given by the Lieutenant Governor, who is appointed by the Governor
General. As per Section 57 of the Constitution Act, 1867 , when bills are
reserved for Queen’s pleasure, she acts upon ministerial advice rather than
the advice of the Houses.

149. The Supreme Court of Canada in Reference Re Amendment of the
Constitution of Canada , reported in 1981 SCC OnLine Can SC 77 ,
recognized that, by convention, neither the Queen nor the vice-regal
representative (equivalent of a Governor in India) may, on their own, refuse
assent to a bill passed by both Houses of the Parliament on the grounds of
opposition to or disapproval of its policy. The relevant portion of the
judgment in reference reads thus:
“As a matter of law, the Queen, or the Governor General or
the Lieutenant Governor could refuse assent to every bill
passed by both Houses of Parliament or by a Legislative
Assembly as the case may be. But by convention they cannot
of their own motion refuse to assent to any such bill on any
ground, for instance because they disapprove of the policy of
the bill. We have here a conflict between a legal rule which
creates a complete discretion and a conventional rule which
completely neutralizes it. But conventions, like laws, are
W.P. (C) No. 1239 of 2023 Page 132 of 414

sometimes violated. And if this particular convention were
violated and assent were improperly withheld, the courts
would be bound to enforce the law, not the convention. They
would refuse to recognize the validity of a vetoed bill. This is
what happened in Gallant v. The King, a case in keeping with
the classic case of Stockdale v. Hansard where the English
Court of Queen's Bench held that only the Queen and both
Houses of Parliament could make or unmake laws. The
Lieutenant Governor who had withheld assent in Gallant
apparently did so towards the end of his term of office. Had
it been otherwise, it is not inconceivable that his withholding
of assent might have produced a political crisis leading to his
removal from office which shows that if the remedy for a
breach of a convention does not lie with the courts, still the
breach is not necessarily without a remedy. The remedy lies
with some other institutions of government; furthermore it is
not a formal remedy and it may be administered with less
certainty or regularity than it would be by a court.”


150. In Galati v. Governor-General of Canada , reported in [2015] FC 91 , the
Federal Court of Canada was faced with the question of whether the grant
of royal assent by the Governor General to the Strengthening Canadian
Citizenship Act, 2014 could be set aside by the court on the ground that
enactment of the same was outside the legislative competence of the
Parliament. It was contended by the applicants that the Governor General
exceeded the scope of his discretion as well as his authority under the Royal
Assent Act of Canada by assenting to the said bill. The Federal Court,
however, dismissed the application and held that the Governor General’s act
of affixing royal assent to the bill was a legislative act. Therefore, the issue
W.P. (C) No. 1239 of 2023 Page 133 of 414

of whether the Governor General exceeded his constitutional authority in
granting royal assent to the said bill was not justiciable. The relevant portion
of the judgment is reproduced below for ready reference:
“The courts exercise a supervisory jurisdiction once a law
has been enacted. Until that time, a court cannot review,
enjoin or otherwise engage in the legislative process unless
asked by way of a reference framed under the relevant
legislation. To conclude otherwise would blur the boundaries
that necessarily separate the functions and roles of the
legislature and the courts. To review the Governor General's
act of granting royal assent, as the applicants request, would
conflate the constitutionally discreet roles of the judiciary
and the legislature, affecting a radical amendment of the
Constitution Act, 1867 and the conventions which underlie
our system of government, notably the right of Parliament to
consider and pass legislation. The applicants' arguments turn
this principle on its head. On the theory advanced, the
judiciary would adjudicate on the constitutionality of
proposed legislation before it became law. That line, once
crossed, would have no limit.”

151. The views of the Federal Court in Galati (supra) that the grant of royal
assent by the Governor-General was a legislative act and hence, non-
justiciable was in line with the view of the Court in Gallant v. The King ,
[1949] 2 DLR 425 wherein it was noted that the Lieutenant-Governor is a
part of the legislature and the act of providing royal assent is also a
legislative action.

c. United States of America

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152. The Constitution of the United States , more particularly, Article I, Section
7, Clause 2 thereof states that once a bill has been passed by the House of
Representatives and the Senate, it must be presented to the President. If the
President approves, he may sign the bill; otherwise, he may return it with his
objections for reconsideration. If, after reconsideration, two-thirds of both
the Houses passes the bill, it becomes law. Further, if the President does not
sign a bill within ten days of presenting the same, while Congress is in
session, the bill automatically becomes law. Therefore, in this limited
circumstance, the concept of pocket veto is not available to the President.
However, if Congress adjourns while the bill is awaiting assent and the
President does not sign the bill within ten days, the bill does not become law.

d. New Zealand

153. The colonial legislative framework of New Zealand under the Constitution
Act, 1852 , vested structured discretion in provincial authorities while
maintaining the supremacy of the Crown. Section 27 of the Constitution Act,
1852 stipulated that every bill passed by the Provincial Council must be
presented to the Superintendent who was an elected head of each Provincial
Council, for the assent of the Governor who was the representative of the
monarch. The Superintendent, in his discretion, could have either granted
assent on behalf of the Governor or withheld assent or reserved the bill for
the Governor’s pleasure. For a bill to become law, Superintendent had to
W.P. (C) No. 1239 of 2023 Page 135 of 414

signify Governor’s assent. Further, her Majesty, with the advice of her Privy
Council could issue instructions to the Governor to guide him in exercise of
his powers to assent to, dissent from, or reserve bills for her Majesty’s
pleasure. The Governor was required to act in obedience to these
instructions.

154. By the introduction of the Constitution Act, 1986 , the Sovereign began to
act on the advice of the Executive Council which is the part of the executive
branch of government. It states that a bill passed by the House of
Representatives becomes law when the Sovereign or the Governor-General
grants assent. Section 3 of the Act states that the power conferred on the
Governor-General are royal powers exercised on behalf of the Sovereign.
These powers may be exercised either by the Sovereign in person or by the
Governor-General. Additionally, any reference in an Act to the Governor-
General in Council also includes the Sovereign acting with the advice and
consent of the Executive Council. The Prime Minister-designate is
appointed as the Executive Councillor and he advises the Governor-General
to appoint other Councillors. Section 3A removes any discretion of the
Sovereign or the Governor-General, stating that they may exercise a power
on the advice and with the consent of the Executive Council.

e. Australia
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155. The structure of governance in Australia reflects a nuanced distribution of
the Queen’s powers through her representatives at both national and state
levels. The Queen of Australia is the formal Head of State. At the national
level, the Queen’s powers and functions qua the Government of Australia
are exercised by the Governor-General of Australia. At the State level, her
powers are exercised by the Governor of the State. As per Section 2(1) of
the Constitution Act, 1889 , the legislative powers were vested in the
Sovereign and exercised by her colonial Governors, subject to the advice of
legislators. At the national level, Governor-General is not given ministerial
advice on assent, the Presiding Officer of the House requests for assent and
the Attorney General provides a certificate to the Governor-General
regarding whether the bill needs to be reserved for the Queen’s assent or
9
regarding any corrections.

156. It is said that the role of the Governor-General is to ensure due process – that
the bill was passed in Houses following the procedure. He is not concerned
with the contents of the legislation as the act of the Governor-General is
executive. However, in the context of Governor (state level), the Court of
Appeal in Eastgate v. Rozzoli , reported in (1990) 20 NSWLR 188 , noted
that while giving assent the Australian State Governor acts as a constituent
part of the Parliament. If a bill is reserved for Queen’s pleasure, she acts

9
D EPT . OF P RIME M INISTER & C ABINET , A USTL . G OVT ., L EGISLATION H ANDBOOK (2017).
W.P. (C) No. 1239 of 2023 Page 137 of 414

upon the advice of Australian Commonwealth Ministers. The power to refer
bills back to Parliament can be exercised only upon ministerial advice. At
the states, the parliamentary officers seek State Governor’s assent.
Ordinarily, the State Governors assent to bills without any ministerial
advice, only South Australia endeavors to provide executive advice to the
Governor.

f. Ireland

157. Ireland’s constitutional order provides a unique provision enabling the
President to refer bills to the Supreme Court for its view on the
constitutionality of the bills. Article 26 of the Constitution of the Ireland
confers a power on the President, who, after consultation with the Council
of State, may refer any bill to the Supreme Court for a decision on whether
any provisions of the bill are repugnant to the Constitution. Such reference
must be within seven days from the presentation of the bill to the President.
If the Supreme Court holds that any provision of the bill is repugnant to the
Constitution, the President declines to sign such bill.

g. Republic of Singapore

158. The Constitution of Singapore establishes a structured framework for the
exercise of presidential discretion, setting clear time limits for decision-
making while also ensuring safeguards against legislative overreach. Article
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21A of the Constitution stipulates the general time limit for the President to
exercise his discretionary powers. It provides that when the Constitution
grants the President discretion in granting or refusing assent, concurrence,
approval, or confirmation, he must signify his decision within the specified
period after it is sought. The time period specified for granting assent ranges
from thirty days to six weeks. However, it may be extended contingent upon

any agreement between the President and the Cabinet.

159. Article 22H applies in cases where the bill or any provision seeks to curtail
discretionary powers of the President. If, within thirty days, the President
neither withholds assent nor refers the bill to the tribunal for its opinion on
whether the bill curtails the President’s discretionary powers, then the
President is deemed to have assented. Even when the tribunal is of the
opinion that the bill does not curtail the discretionary powers conferred on
the President, the President is still deemed to have assented.

h. Democratic Socialist Republic of Sri Lanka

160. The Constitution of Sri Lanka , more particularly, Article 154H, stipulates
that upon the presentation of a statute enacted by the Provincial Council, the
Governor shall either assent to it or return it for reconsideration as soon as
possible. The Provincial Council may then pass the statute with or without
amendments. If the statute is presented to the Governor again, he may
W.P. (C) No. 1239 of 2023 Page 139 of 414

reserve it for reference by the President to the Supreme Court within one
month of its second time, seeking a determination as to whether is
inconsistent with the Constitution. If the Supreme Court holds the statute to
be consistent, the Governor must grant assent. If it is held inconsistent, the
Governor may withhold assent. It can be concluded that, upon the first
presentation of a bill, the Governor has only two options: granting assent or
returning it for reconsideration. On the second presentation, the Governor
may only reserve the bill, referring it to the President for submission to the
Supreme Court. He does not have the discretion to withhold assent
independently.

i. Republic of Kiribati

161. The constitutional framework of Kiribati is similar to the Democratic
Socialist Republic of Sri Lanka. It provides powers to withhold assent only
in exceptional situations. Section 66 of the Constitution of Kiribati allows
the Beretitenti, that is the head of the state and head of the government, to
withhold assent to a bill only if he believes the bill to be inconsistent with
the Constitution. In such a case, the bill is returned to the Parliament for
amendment, and if it is presented again and the Beretitenti still believes that
the bill is inconsistent with the Constitution, he is required to refer it to the
High Court for a declaration. If the Court declares that the bill is not
W.P. (C) No. 1239 of 2023 Page 140 of 414

consistent with the Constitution, the Beretitenti must grant assent forthwith.
If the Court declares the bill to be inconsistent, it is sent back to Parliament.
The Constitution of Zimbabwe under Section 131 provides a time period of
twenty-one days to either assent to the bill or refer it for reconsideration.

j. Republic of Fiji

162. The Constitution of Fiji, 2013 also does not vest discretionary power in the
President. While Section 53 of the Fiji Independence Order, 1970 and
Constitution of Fiji granted the Governor-General the power to grant assent
or withhold assent, the Constitution of Fiji, 2013 , removed any discretion on
the part of the President. Section 48 of the Constitution stipulates that once
a bill is passed, the Speaker must present it to the President for assent, which
must be granted within seven days; otherwise, the bill is deemed to have
received assent.

k. Solomon Islands & Antigua and Barbuda

163. Both the Solomon Islands and Antigua and Barbuda have constitutional
provisions that mandate the Governor-General to grant assent to bills passed
by Parliament. In the Solomon Islands, Section 59(2) of the Constitution of
the Soloman Islands provides that when a bill has been passed by the
Parliament it shall be presented to the Governor-General who shall assent to
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it forthwith on behalf of the Head of the State. Whereas Section 52(2) of the
Constitution of Antigua and Barbuda states that when a bill is presented to
the Governor-General for assent in accordance with this Constitution, he
shall signify that he assents thereto.

l. Islamic Republic of Pakistan

164. In our neighboring country, Article 75 of the Constitution of the Islamic
Republic of Pakistan provides that when a bill is presented to the President,
he must either assent within ten days or return it to Parliament with a request
for reconsideration. If the bill is passed again by a majority, whether
amended or not, the President must grant assent within ten days, failing
which it will be deemed to have received assent. Whereas Article 105
stipulates that the Governor shall act in accordance with the advice of the
Cabinet or the Chief Minister. The Governor may, however, require the
Cabinet or the Chief Minister to reconsider the advice. Following such
reconsideration, the Governor must act in accordance with the advice
tendered within ten days.

m. Federal Republic of Germany

165. The legislative process in Germany is governed by both federal and state
constitutional provisions. Article 76 of the Basic Law for the Federal
Republic of Germany states that bills are to be introduced in Bundestag
W.P. (C) No. 1239 of 2023 Page 142 of 414

(house elected by the people) by the Federal Government or by the
Bundesrat (federal council). The provision grants the Bundesrat a period of
six weeks to comment on bills for Federal Government bills. The Federal
Government submits the bills, alongwith its views, to the Bundestag within
six weeks alongwith its views. Article 78 provides that a bill adopted by the
Bundestag become the law if the Bundesrat consents to it. Laws enacted in
accordance with the provisions of the Basic Law, after being countersigned,
are certified by the Federal President. Furthermore, Section 60, Section V,
the Constitution of Berlin stipulates that the bills shall be signed by the
President of the House of Representatives without delay and then
promulgated by the Governing Mayor within two weeks.

n. Italian Republic
166. The legislative process in Italy is shaped by constitutional provisions that
define the President’s role in the promulgation of laws and the scope of
legislative urgency. Article 73 of the Constitution of the Italian Republic
mandates that laws be promulgated by the President within one month of
their approval. However, if the Chambers (the Parliament consists of the
Chamber of Deputies and the Senate of the Republic), by a majority vote,
declare a bill to be urgent, it shall be promulgated within the time specified
by the bill itself. Article 74 empowers the President to request a new
deliberation by means of a message stating the reasons for such a request. It
W.P. (C) No. 1239 of 2023 Page 143 of 414

is important to take note that if the Chambers pass the bill once again, then
the law must to be promulgated.

o. French Republic
167. In France, the promulgation of legislation is subject to defined constitutional
timelines. Article 10 of the Constitution of October 4, 1958 , stipulates that
the President of the Republic must promulgate Acts of Parliament within
fifteen days after the final passage of an Act. It also empowers the President
to request Parliament to reopen the debate on the Act, or any specific
sections thereof, and such a request for reopening of debate shall not be
refused.

p. Japan
168. As per the Japanese constitutional framework, the Diet (Parliament of Japan)
is the sole law-making organ of the State. Article 59 envisages that if a bill
passed by the House of Representatives is rejected by the House of
Councillors, it becomes a law when passed a second time by the House of
Representatives by a two-thirds majority of the members present. Article 74
states that all laws and cabinet orders must be signed by the competent
Minister of State and countersigned by the Prime Minister.


W.P. (C) No. 1239 of 2023 Page 144 of 414

G. ANALYSIS

i. What courses of action are available to the Governor in exercise of his
powers under Article 200 of the Constitution?


169. A plain reading of Article 200 of the Constitution indicates that when a bill
is passed by the legislature of a State, it is mandatorily required to be placed
before the Governor for his assent. This is because without receiving the
assent of the President, a bill cannot become an Act. However, when a bill
is presented to the Governor for his assent, the Governor is required to make
a declaration from the three options available to him under the substantive
part of Article 200, that is, to assent, to withhold assent, or to reserve the bill
for the consideration of the President.


170. The first proviso prescribes a mechanism whereby the Governor may return
a bill, which is not a Money Bill, back to the State legislature requesting
them to reconsider the bill or certain provisions thereof or consider the
possibility of making certain amendments to it. Once a bill is so returned by
the Governor, the State legislature is required to take note of the suggestions
made by the Governor and reconsider the bill accordingly. If the bill, after
such reconsideration by the State Legislature is again passed and presented
to the Governor, then in such circumstances as per the first proviso, the
Governor would then be prohibited from withholding his assent to the bill.
W.P. (C) No. 1239 of 2023 Page 145 of 414


171. The second proviso provides for a specific situation wherein the Governor
is mandated to reserve a bill for the consideration of the President if, in his
opinion, the bill upon becoming law, would so derogate from the powers of
the High Court as to endanger the position which the High Court has been
designed to fill by the Constitution.


172. One of the principal contentions advanced by the learned Attorney General
before us was that the first proviso to Article 200 provides an independent
fourth course of action to the Governor besides the three other options
available to him under the substantive part of the Article. To put it
differently, his argument was that the Governor may either withhold assent
to a bill simpliciter, as provided under the substantive part of Article 200, or
he may invoke the procedure prescribed under the first proviso and return
the bill back to the State legislature along with such a message as is
mentioned in the first proviso. In other words, he contended that where the
Governor declares a simpliciter withholding of assent, the same would be an
absolute veto of the bill, and the State legislature would have no occasion to
reconsider the bill in such a scenario. As a corollary the first proviso would
have no applicability and the State legislature would not be entitled to
reconsider the bill on its own motion.
W.P. (C) No. 1239 of 2023 Page 146 of 414



173. He argued that in cases where the bill suffers from some gross and manifest
unconstitutionality, the Governor need not invoke the procedure mentioned
in the first proviso and it would be sufficient if he declares a simpliciter
withholding of the bill. As a corollary, he submitted that the procedure
prescribed under the first proviso may be followed by the Governor when
he is of the belief that the bill, which is otherwise constitutional, may benefit
from certain amendments and in such a case he may send a message to the
State legislature suggesting certain amendments to the bill.

174. In other words, his contention was that simpliciter withholding is to be opted
for by the Governor in his position as a custodian of the Constitution in the
State, while the procedure prescribed in the first proviso is to be followed
by him in his role as a friend, philosopher and guide of the State
Government, with a view to improve an otherwise constitutionally
innocuous piece of legislation.


175. The aforesaid contention of the Attorney General was met by the petitioner
by placing reliance on the recent decision of this Court in State of Punjab
(supra) wherein it was held that the option of withholding of assent under
the substantive part of Article 200 is attached with the first proviso. The
petitioner contended that in light of the said observation, it is not open for
W.P. (C) No. 1239 of 2023 Page 147 of 414

the Governor to undertake any simpliciter withholding of a bill presented to
him and he must mandatorily resort to the procedure indicated in the first
proviso if he decides to withhold assent to a bill.


176. The Attorney General, on the other hand, raised doubts as regards the
correctness of the decision in State of Punjab (supra) and argued that the
said decision was rendered without having regard to the earlier decisions
given by larger Benches of this Court. In particular, he placed reliance on
certain observations made by the Constitution Bench in Valluri Basavaiah
Chowdhary (supra) to support his contention.


177. In response, the petitioner argued in favour of the decision in State of
Punjab (supra) and submitted that the observations made in Valluri
Basavaiah Chowdhary (supra) were made in a case where this Court was
not dealing with the interpretation of Article 200 of the Constitution. Thus,
the observations made therein as regards Article 200 could be said to be
obiter dicta at best. Mr. Dwivedi went to the extent of submitting that the
observations of this Court being relied upon by the Attorney General cannot
be construed as obiter dicta as they were mere passing remarks irrelevant to
the lis before the Court in that case.

W.P. (C) No. 1239 of 2023 Page 148 of 414

178. It is in this backdrop that we are called upon to ascertain whether the
observations made in Valluri Basavaiah Chowdhary (supra) can be
reconciled with the decision of this Court in State of Punjab (supra) . The
consequence of this inquiry would be that it would determine whether the
constitutional scheme of Article 200 envisages a simpliciter withholding of
assent by the Governor. In other words, if the decision in State of Punjab
(supra) is found to be per incuriam , it would mean that the Governor under
Article 200 has the power of exercising an absolute veto upon any bill which
is presented to him for assent.

179. Before going into the question of whether the observations made in Valluri
Basavaiah Chowdhary (supra) could be said to be the ratio, obiter or
irrelevant to the lis , we deem it necessary to reproduce the observations
relied upon by the Attorney General in support of his submission:
“19. The Governor is, however, made a component part of
the legislature of a State under Article 168, because every
Bill passed by the State legislature has to be reserved for the
assent under Article 200. Under that article, the Governor
can adopt one of the three courses, namely (i) he may give his
assent to it, in which case the Bill becomes a law; or (ii) he
may, except in the case of a “Money Bill”, withhold his assent
therefrom, in which case the Bill falls through unless the
procedure indicated in the first proviso is followed i.e. return
the Bill to the Assembly for reconsideration with a message,
or (iii) he may (subject to Ministerial advice) reserve the Bill
for the consideration of the President, in which case the
President will adopt the procedure laid down in Article 201.
W.P. (C) No. 1239 of 2023 Page 149 of 414

The first proviso to Article 200 deals with a situation where
the Governor is bound to give his assent when the Bill is
reconsidered and passed by the Assembly. The second
proviso to that article makes the reservation for
consideration of the President obligatory where the Bill
would, “if it becomes law”, derogate from the powers of the
High Court. Thus, it is clear that a Bill passed by a State
Assembly may become law if the Governor gives his assent to
it, or if, having been reserved by the Governor for the
consideration of the President, it is assented to by the
President. The Governor is, therefore, one of the three
components of a State legislature. The only other legislative
function of the Governor is that of promulgating Ordinances
under Article 213(1) when both the Houses of the State
legislature or the Legislative Assembly, where the legislature
is unicameral, are not in session. The Ordinance-making
power of the Governor is similar to that of the President, and
it is co-extensive with the legislative powers of the State

legislature.”
(Emphasis supplied)


180. The crux of the controversy as regards whether the first proviso provides an
independent course of action to the Governor lies in the use of the expression
“ in which case the Bill falls through unless the procedure indicated in the
first proviso is followed ”. However, what is interesting to note is that this
expression did not come to be used for the first time in Valluri Basavaiah
Chowdhary (supra) . Much prior to the said decision, Justice S.R. Das (as
his lordship then was), in a concurring opinion in State of Bihar v.
Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in (1952)
1 SCC 528 observed as follows:
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“ 235. [...] The procedure to be followed after a Bill is passed
by the State Assembly is laid down in Article 200. Under that
article the Governor can do one of three things, namely, he
may declare that he assents to it, in which case the Bill
becomes a law, or he may declare that he withholds assent
therefrom, in which case the Bill falls through unless the
procedure indicated in the proviso is followed, or he may
declare that he reserves the Bill for the consideration of the
President, in which case the President will adopt the
procedure laid down in Article 201. Under that article the
President shall declare either that he assents to the Bill in
which case the Bill will become law or that he withholds
assent therefrom, in which case the Bill falls through unless
the procedure indicated in the proviso is followed. Thus it is
clear that a Bill passed by a State Assembly may become a
law if the Governor gives his assent to it or if, having been
reserved by the Governor for the consideration of the
President, it is assented to by the President. In the latter event
happening, the argument of the learned counsel for the
petitioners will require that what has become a law by the
assent of the President will, in order to be effective, have to
be again reserved for the consideration of the President a
curious conclusion I should be loath to reach unless I am
compelled to do so. Article 200 does not contemplate a
second reservation by the Governor. [...]”

(Emphasis supplied)



181. The same expression also came to be used by a three-Judge Bench in
Hoechst (supra) wherein it was observed thus:
“85. The constitutional position of a Governor is clearly
defined. The Governor is made a component part of the
legislature of a State under Article 168 because every Bill
passed by the State legislature has to be reserved for the
assent of the Governor under Article 200. Under that Article,
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the Governor can adopt one of the three courses, namely: (1)
He may give his assent to it, in which case the Bill becomes a
law; or (2) He may except in the case of a ‘Money Bill’
withhold his assent therefrom, in which case the Bill falls
through unless the procedure indicated in the first proviso is
followed i.e. return the Bill to the Assembly for consideration
with a message; or (3) He may “on the advice of the Council
of Ministers” reserve the Bill for the consideration of the
President, in which case the President will adopt the
procedure laid down in Article 201. The first proviso to
Article 200 deals with a situation where the Governor is
bound to give his assent and the Bill is reconsidered and
passed by the Assembly. [...]”
(Emphasis supplied)


182. This Court in State of Punjab (supra) wherein one of us (J.B. Pardiwala J.)
was part of the Bench, observed that the second proviso to Article 200 is in
the form of an exception as it restricts the choice that the Governor otherwise
has under the substantive part of Article 200. It observed that the use of the
expression “ shall not assent to, but shall reserve for the consideration of the
President ” makes it abundantly clear that the Governor has no choice but to
reserve a bill for the consideration of the President if the bill is of the
description given in the second proviso. This Court further held that unlike
the second proviso, which is in the form of an exception, the first proviso is
in the form of an explanation and the same is made clear from the use of the
expression “ may ” in the first proviso. The Court observed that the expression
“ may ” has been used because the first proviso attaches with the option of
withholding of assent and it is a matter of choice for the Governor if he wants
W.P. (C) No. 1239 of 2023 Page 152 of 414

to withhold assent to a bill or if he wishes to exercise the other two options
available to him, namely, declaring assent or reserving the bill for the
consideration of the President. Taking note of the expression “ shall not
withhold assent therefrom ” used in the first proviso, the Court observed that
the expression signified that the first proviso was attached to the option of
withholding of assent alone. In lieu of this, the Court held that upon
withholding of assent to a bill, the Governor is mandatorily required to
follow the procedure prescribed in the first proviso. The relevant
observations are reproduced hereinbelow:

“20. The present case turns upon how the first proviso is to
be construed. In construing the first proviso, it needs to be
noted that the substantive part of Article 200 provides the
Governor with three options : an option to assent; an option
to withhold assent; and an option to reserve the Bill for the
consideration of the President. The first proviso opens with
the expression “the Governor may” in contrast to the second
proviso which begins with the expression “the Governor
shall not assent”. The “may” in the first proviso is because
the first proviso follows the substantive part which contains
three options for the Governor. The first proviso does not
qualify the first option (where the Governor assents to the
Bill) nor the third option reserving the Bill for consideration
of the President. The first proviso attaches to the second
option (withholding of assent) and hence begins with an
enabling expression, “may”. By the mandate of the second
proviso, there is an embargo on the Governor assenting to a
Bill which derogates from the powers of the High Court
under the Constitution. The Governor is by the mandate of
the Constitution required to reserve such a Bill for
consideration of the President.
W.P. (C) No. 1239 of 2023 Page 153 of 414


21. The second proviso impacts upon the option which is
provided by the substantive part of Article 200 to the
Governor to reserve a Bill for the consideration of the
President by making it mandatory in the situation envisaged
there. The option of reserving a Bill for the consideration of
the President is turned into a mandate where the Governor
has no option but to reserve it for the consideration of the
President. The second proviso is, therefore, in the nature of
an exception to the option which is granted to the Governor
by the substantive part of Article 200 to reserve any Bill for

the consideration of the President.

22. A proviso, as is well settled, may fulfil the purpose of
being an exception. Sometimes, however, a proviso may be in
the form of an explanation or in addition to the substantive
provision of a statute. The first proviso allows the Governor,
where the Bill is not a Money Bill to send it back to the
legislature together with a message. In terms of the message,
the legislature may be requested by the Governor to
reconsider the entirety of the Bill. This may happen for
instance where the Governor believes that the entirety of the
Bill suffers from an infirmity. Alternatively, the Governor
may request the legislature to reconsider any specific
provision of the Bill. While returning the Bill, the Governor
may express the desirability of introducing an amendment in
the Bill. The desirability of an amendment may arise with a
view to cure an infirmity or deficiency in the Bill. The
concluding part of the first proviso however stipulates that if
the Bill is passed again by the legislature either with or
without amendments, the Governor shall not withhold assent
therefrom upon presentation. The concluding phrase “shall
not withhold assent therefrom” is a clear indicator that the
exercise of the power under the first proviso is relatable to
the withholding of the assent by the Governor to the Bill in
the first instance. That is why in the concluding part, the first
proviso indicates that upon the passing of the Bill by the
legislature either with or without amendments, the Governor
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shall not withhold assent. The role which is ascribed by the
first proviso to the Governor is recommendatory in nature

and it does not bind the State Legislature.

23 . This is compatible with the fundamental tenet of a
parliamentary form of Government where the power to enact
legislation is entrusted to the elected representatives of the
people. The Governor, as a guiding statesman, may
recommend reconsideration of the entirety of the Bill or any
part thereof and even indicate the desirability of introducing
amendments. However, the ultimate decision on whether or
not to accept the advice of the Governor as contained in the
message belongs to the legislature alone. That the message
of the Governor does not bind the legislature is evident from
the use of the expression “if the Bill is passed again …with

or without amendments”.

24 . The substantive part of Article 200 empowers the
Governor to withhold assent to the Bill. In such an event, the
Governor must mandatorily follow the course of action which
is indicated in the first proviso of communicating to the State
Legislature “as soon as possible” a message warranting the
reconsideration of the Bill. The expression “as soon as
possible” is significant. It conveys a constitutional
imperative of expedition. Failure to take a call and keeping a
Bill duly passed for indeterminate periods is a course of
action inconsistent with that expression. Constitutional
language is not surplusage. In State of Telangana v.
Governor of Telangana [State of Telangana v. Governor of
Telangana, (2024) 1 SCC 405] this Court observed that “The
expression ‘as soon as possible’ has significant
constitutional content and must be borne in mind by
constitutional authorities.” The Constitution evidently
contains this provision bearing in mind the importance which
has been attached to the power of legislation which squarely
lies in the domain of the State Legislature. The Governor
cannot be at liberty to keep the Bill pending indefinitely
without any action whatsoever.
W.P. (C) No. 1239 of 2023 Page 155 of 414


25 . The Governor, as an unelected Head of the State, is
entrusted with certain constitutional powers. However, this
power cannot be used to thwart the normal course of law-
making by the State Legislatures. Consequently, if the
Governor decides to withhold assent under the substantive
part of Article 200, the logical course of action is to pursue
the course indicated in the first proviso of remitting the Bill
to the State Legislature for reconsideration. In other words,
the power to withhold assent under the substantive part of
Article 200 must be read together with the consequential
course of action to be adopted by the Governor under the first
proviso. If the first proviso is not read in juxtaposition to the
power to withhold assent conferred by the substantive part of
Article 200, the Governor as the unelected Head of State
would be in a position to virtually veto the functioning of the
legislative domain by a duly elected legislature by simply
declaring that assent is withheld without any further
recourse. Such a course of action would be contrary to
fundamental principles of a constitutional democracy based
on a Parliamentary pattern of governance. Therefore, when
the Governor decides to withhold assent under the
substantive part of Article 200, the course of action which is
to be followed is that which is indicated in the first proviso.
The Governor is under Article 168 a part of the legislature
and is bound by the constitutional regime.

26 . Insofar as Money Bills are concerned, the power of the
Governor to return a Bill in terms of the first proviso is
excluded from the purview of the constitutional power of the
Governor. Money Bills are governed by Article 207 in terms
of which the recommendation of the Governor is required for
the introduction of the Bill on a matter specified in sub-
clauses (a) to (f) of clause (1) of Article 199.”

(Emphasis supplied)



W.P. (C) No. 1239 of 2023 Page 156 of 414

183. Placing reliance on the expression “ unless the procedure indicated in the
first proviso is followed ” the learned Attorney General submitted that the
decision as regards whether the procedure prescribed under the first proviso
is to be invoked or not, is the discretion of the Governor. It is only when the
Governor decides to return the withheld bill along with a message that the
first proviso would come into play. In other words, if the Governor believes
that the bill is constitutionally infirm and beyond any remedial changes, then
he may choose not to return the bill along with a message and may simply
declare that he is withholding assent to the bill, in which case the bill would
“fall through” or lapse.


184. Although the argument is seemingly lucrative and appealing, and the
petitioner also could not provide a concrete reply to the same during the
course of the arguments and instead took shelter under the semantics of
obiter-dicta and ratio-decidendi , yet we deem it necessary to explain how
the argument is short-sighted, half-baked and suffers from an inherent
fallacy.

185. As the observation made by this Court in the three decisions referred to
above holds that the Bill would fall through unless the procedure prescribed
in the first proviso is followed, we first need to understand the procedure
that is prescribed in the first proviso. The proviso stipulates that when any
W.P. (C) No. 1239 of 2023 Page 157 of 414

bill, other than a Money Bill, is presented to the Governor for assent, he
may, as soon as possible, return it to the State legislature, together with a
message. As regards the contents of the message, the proviso stipulates that
the Governor may request the House(s) of the State legislature to reconsider
the bill or certain parts of it, and also explore the desirability of introducing
certain amendments as may be suggested by the Governor in the message.
Once the bill is so returned together with the message, the House(s) are
required to reconsider the bill in accordance with the recommendations
contained in the message of the Governor. If the bill is then passed again by
the House(s), with or without amendments, and presented to the Governor,
then the Governor cannot withhold assent from such a bill.


186. A close reading of the first proviso reveals that the action of returning the
bill to the State legislature by the Governor is qualified by the expression
“ as soon as possible ”. However, once the bill has been returned to the State
legislature by the Governor, there is no such expediency required on part of
the State legislature in reconsidering the bill. Further, once the bill is
reconsidered and passed again by the State legislature, there is again a
mandate on the Governor not to withhold assent to such a bill. The only
obligation upon the State legislature is to mandatorily take into consideration
the suggestions contained in the message sent by the Governor along with
the bill. However, the State Legislature is not under an obligation to
W.P. (C) No. 1239 of 2023 Page 158 of 414

mandatorily introduce any amendments suggested by the Governor and it
may proceed to repass the bill without any amendments.

187. Since there is no obligation on the State legislature to repass the bill returned
by the Governor under the first proviso, the expression “falls-through” can
only refer to those situations where the State legislature elects not to pass
the bill for reconsideration again, and in such circumstances causing the bill
to lapse. There is nothing in the first proviso which gives the Governor the
discretion to initiate the procedural machinery described therein. Therefore,
the first proviso, cannot be treated as an independent course of action
severable from the option of withholding of assent. The use of the expression
“ as soon as possible ” in the first proviso makes it clear that the Constitution
has imposed a sense of urgency upon the Governor and expects him to act
with expediency if he decides to declare the withholding of assent. At the
same time, that the use of the expression “ may ” in the first proviso, as
explained in State of Punjab (supra) does not confer a discretion upon the
Governor to decide whether to act in accordance with the procedure
prescribed in the first proviso. On the contrary, it only denotes that the first
proviso would be applicable only when the option of withholding of assent
is exercised. In other words, the expression “ may ” is used keeping in mind
that there are three options that the Governor may choose from when a bill
is presented to him for assent. Therefore, there is no requirement for
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construing the expression “ may ” as “ shall ” as was vehemently urged on
behalf of the petitioner, and the interpretation provided in State of Punjab
(supra) and further explained by us does not merit construing the use of
“may” as “ shall ”, as it would result in a logical absurdity insofar as it would
make the compliance with the procedure laid down in the first proviso
mandatory in the exercise of all three options available to the Governor
under the substantive part of Article 200 of the Constitution.

188. It is also remarkable to take note of the expression “if the bill is passed
again ” which signifies that the ultimate discretion to decide whether the
State legislature wants to repass the bill or not continues to remain the
prerogative of the State legislature alone. Similarly, the use of the expression
“ with or without amendment” denotes that even if the State legislature
decides to reconsider the bill, the discretion to repass it with or without the
amendments suggested by the Governor again continues to be their sole
prerogative. In order to obviate any further confusion, we deem it
appropriate to clarify that the use of the expression “shall reconsider the bill
accordingly” does not indicate that it is obligatory for the State legislature
to take up the bill for reconsideration. The word “shall” used in this
expression must be read in conjunction with the word “ accordingly ”. The
use of “ shall ” in this context is only for the limited purpose that if the State
legislature in its discretion does decide to not allow the bill to “fall through”
W.P. (C) No. 1239 of 2023 Page 160 of 414

by taking it up for reconsideration, then the scope of such reconsideration
must at the very least encompass the suggestions communicated by the
Governor in his message. The word “ shall ” used herein cannot be singled
out and construed devoid of its context.


189. The structure of Article 200 is also helpful in discerning the meaning of the
content that it holds. There is a substantive part of the provision and there
are two provisos to the substantive part. In the substantive part, there are
three options for the Governor to choose from, each separated by the
conjunction “ or ” thereby indicating the mutual exclusivity of the three
options. If the Governor opts for the first option and grants assent to the bill
presented to him, the first proviso doesn’t come into consideration.
Similarly, if the Governor chooses the third option and reserves the bill for
the consideration of the President, there is no occasion for the operation of
first proviso. The second proviso is overarching in nature and provides that
in the situation as described therein, the Governor can only exercise one
option, that is, reserve the bill for the consideration of the President.

190. The use of the expression “ shall declare ” in the substantive part of Article
200 indicates that the Governor is required to make a declaration from the
three choices provided to him under the substantive part and there cannot be
any fourth course of action. As soon as assent is granted, the bill becomes
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an Act and there is no scope thereafter for reservation for the consideration
of the President or returning back to the State legislature. If reservation for
the consideration of the President is declared then thereafter no returning of
the bill to the State legislature can take place, unless the President so directs
under the proviso to Article 201. Thus, it is only upon the declaration of
withholding of assent that the first proviso is animates into action.


191. Another important aspect that may be pointed out is that the observations
made in Valluri Basavaiah Chowdhary (supra) and Hoechst (supra),
respectively state that except in the case of a Money Bill, the Governor may
withhold assent. A bare reading of Article 200 indicates that there is no
restriction in the substantive part that prohibits the Governor from declaring
that he withholds assent to a Money Bill, and it is only under the first proviso
that such a restriction can be found. Therefore, it is only when the option of
the withholding of assent in the substantive part of Article 200 is read along
with the first proviso that Money Bills could be said to be excluded from the
purview of withholding of assent under the substantive part of Article 200.
Thus, rather than fortifying the argument of the learned Attorney General,
the observations made in Valluri Basavaiah Chowdhary (supra) and
reiterated in Hoechst (supra) only reinforce the intricate and inseparable
connection between the exercise of the option of withholding of assent by
the Governor and coming into operation of the procedure prescribed in the
W.P. (C) No. 1239 of 2023 Page 162 of 414

first proviso. The dictum of the above mentioned two decisions in no way
renders the decision in State of Punjab (supra) per-incuriam , and rather
bolsters the line of reasoning adopted by this Court therein.


192. Therefore, the use of the expression “ the Bill falls through unless the
procedure indicated in the first proviso is followed ” should be construed in
the context of the entire procedure described in the first proviso. Seen thus,
it would mean that the bill would fall-through if the bill, having been
returned by the Governor, is not passed again by the State legislature and
presented again to the Governor for his assent. The fallacy of the argument
canvassed by the learned Attorney General lies in the very fact that he has
construed the observations of this Court, pertaining to compliance with the
procedural requirement under the first proviso, to mean that the mechanism
under the first proviso can only be initiated upon the desire and discretion of
the Governor.

193. This Court in Nambudiri ( supra) explained as to how the State legislature
may cause a bill to fall through with which they no longer intend to proceed
by not reconsidering and repassing it, once it has been returned by the
Governor with the deceleration of withholding of assent. This Court held
that the stage of assent could only be arrived at after the stage of
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reconsideration and repassing by the State legislature has been successfully
crossed. The relevant observations read as under: -

“16. […] Similarly, when it is said that if the Bill is passed
again the Governor shall not withhold assent therefrom it
does not postulate the existence of the same House because
even if it is the successor House which passes it it is true to
say that the Bill has been passed again because in fact it had
been passed on an early occasion. Besides, if the effect of
Article 196 is that the Bills pending assent do not lapse on
the dissolution of the House then the relevant provisions of
Article 200 must be read in the light of that conclusion. In our
opinion , there is nothing in the proviso to Article 201 which
is inconsistent with the basic concept of democratic
Government in asking a successor House to reconsider the
Bill with the amendments suggested by the President because
the proviso makes it perfectly clear that it is open to the
successor House to throw out the Bill altogether. It is only if
the Bill is passed by the successor House that the stage is
reached to present it to the Governor or the President for his
assent, not otherwise.”

194. There is one another way of looking at Article 200. The procedure, as
prescribed under the scheme of the provision, involves and envisages the
actual motion of a bill from one constitutional authority to another. The
Article starts with the requirement of the bill having to be mandatorily
presented to the Governor after it has been passed by the State legislature.
Thereafter, there is an obligation on the Governor to make a choice from one
of the three options provided in the substantive part of the Article and also
declare such a decision. Here, if assent is declared, then the bill becomes an
W.P. (C) No. 1239 of 2023 Page 164 of 414

Act and the Government may thereafter take steps to notify the same in the
official Gazette. If the Governor declares that bill is being reserved for
consideration of the President as per the second proviso or otherwise, then
the bill travels from the Governor to the President, whereupon Article 201
comes into play. The mechanism provided in the first proviso also envisages
the movement of the bill from the Governor to the State legislature and then
back to the Governor upon being passed again. The expression “ as soon as
possible ” appearing in the first proviso infuses a sense of urgency and
expediency in the mechanism of returning of bills by the Governor. It goes
without saying that the scheme of Article 200 is characterized by the
movement of the bill from one constitutional authority to another and that
too with a sense of expediency. It is trite to say that Article 200 occupies an
important role of giving the bills passed by the State legislature the authority
of an Act. Without the procedure envisaged under Article 200, the bills
remain mere pieces of paper, skeletons without any flesh or lifeblood
flowing through their veins, mere documentation of the aspirations of the
people without any possibility of bringing them to fruition. The only way by
which the option of withholding of assent provided in the substantive part
of Article 200 can be reconciled with the scheme permeating the remainder
of the provision is by reading it in conjunction with the first proviso. It is
only when the withholding of assent is tempered with the requirement of
following the procedure prescribed in the first proviso that the constitutional
W.P. (C) No. 1239 of 2023 Page 165 of 414

object of ensuring that the law-making machinery at the State level keeps on
running unhindered can be fulfilled.


195. Any other reading of the provision that construes the option of withholding
of assent without attaching it to the mechanism prescribed in the first proviso
would render the very idea of smooth functioning of the law-making process
nugatory and would vest with the Governor untrammeled powers of
thwarting the legislative machinery and in effect the will and aspirations of
the people whose voices the legislature represents.

196. Thus, in light of the aforesaid discussion, it becomes clear that there are only
three courses of action available to the Governor to choose from when a bill
is presented to him for assent under Article 200. The first proviso is not an
independent fourth course of action but intrinsically attached to the option
of withholding of assent. In other words, the first proviso is clarificatory and
only elaborates the procedure to be followed in case the option of
withholding of assent is invoked by the Governor.


197. The use of the expression “ shall ” in the substantive part of Article 200 read
with the expression “ as soon as possible ” used in the first proviso indicates
that there is no pocket veto available to the Governor while he is exercising
the powers under Article 200. As we have also discussed in the subsequent
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parts of this judgment, inaction on part of the Governor to take a decision
when a bill is presented to him under Article 200 is grossly violative of the
constitutional scheme of expediency which permeates the provision.

198. The Governor, in exercise of his powers under Article 200, also does not
possess any absolute veto. He is mandated to take a decision from among
the three options that are provided in the substantive part of the Article 200.
In case of withholding of assent, the Governor is bound to follow the
procedure prescribed under the first proviso and assent to the bill if it is
ultimately presented to him for assent after being repassed by the State
legislature. The Governor may also reserve certain bills for the consideration
of the President. However, in no case has the Governor been conferred with
the power to veto a bill which is presented to him. He is envisaged as an
intermediary stop in the journey of the bill towards becoming an Act. When
a bill comes to the Governor, he may forthwith assent to it, or postpone the
grant of assent by exercising the option of withholding of assent but only for
so long till the bill comes back to him after reconsideration, or he may
forward the bill to the President whereupon the procedure prescribed under
Article 201 is to be followed. Thus, in none of these cases can the Governor
permanently keep a bill with him without according assent to it, nor can he
declare a simpliciter withholding of assent thereby killing the bill.

W.P. (C) No. 1239 of 2023 Page 167 of 414

ii. Whether the Governor can reserve a Bill for the consideration of the
President when it is presented to him for assent after being
reconsidered in accordance with the first proviso to Article 200, more
particularly, when he had not reserved it for the consideration of the
President in the first instance?


199. As discussed in the preceding issue, the Governor, in exercise of his powers
under Article 200, has three options to choose from. The use of the
conjunction “ or ” between the three options signifies that the options are
mutually exclusive and once one of the options is exercised by the Governor,
the other options become unavailable to choose from. Kameshwar Singh
(supra) held that there can be no reservation for the consideration of the
President once assent is declared and similarly, there is no requirement for
the Governor to assent to the bill, once the bill, having been reserved for the
consideration of the President, has received his assent.

200. We have also discussed in line with the decision in State of Punjab (supra)
that the option of withholding of assent is attached with the first proviso and
once the Governor declares the withholding of assent, the entire mechanism
which is laid down in the first proviso itself has to follow suit. Thus, the first
proviso to Article 200 is a complete code in itself as regards the procedure
which is to be followed once the Governor withholds assent and the rest of
the article has no applicability thereafter.
W.P. (C) No. 1239 of 2023 Page 168 of 414


201. It is also interesting to note that the expression “ withhold assent ” has been
employed in the substantive part of Article 200. The literal meaning of the
expression ‘withhold’ as defined in a number of dictionaries is to keep back;
to keep in one’s possession what belongs to or is due to others; to hinder; to
prevent; to defer; to postpone; to detain; to keep under control; to retain; to
keep from doing something; to refrain from doing something. Thus, it would
not be incorrect to construe that the option of withholding of assent has been
provided to the Governor under the substantive part only with a view to defer
or to postpone the grant of assent to a bill. Withholding of assent cannot be
construed to be the same as denying of assent or as conferring a power in
the Governor to veto a legislation passed by the State legislature, which
would be against the very fundamentals of a representative democracy.

202. Further, the scope of this deferment of assent by the Governor has been made
subject to the procedure laid down in the first proviso. The procedure laid
down in the first proviso ensures that the withholding of assent does not
become analogous to a pocket veto. The use of the expression “ if the Bill is
passed again by the House or Houses with or without amendment ” in the
first proviso clearly indicates that the role of the Governor under the first
proviso has been characterized as recommendatory in nature and that his
suggestions do not bind the legislature. Further, the expression “ the
W.P. (C) No. 1239 of 2023 Page 169 of 414

Governor shall not withhold assent therefrom ” in the first proviso leaves no
scope for the Governor to take any course of action other than discontinuing
the withholding of assent, which by necessary implication means to accord
assent to the bill. The expression also indicates that there is strict
constitutional prohibition against the Governor to not withhold assent to the
bill.

203. What follows from the aforesaid discussion is that once the option of
withholding of assent is exercised by the Governor, the mechanism under
the first proviso is set into motion to the exclusion of everything else
envisaged under the article. This is in view of the maxim Expressio Unius
Est Exclusio Alterius i.e., the expression of one thing is the exclusion of
another. Once the mechanism under the first proviso is set into motion and
the various stages are complied with, the only possible manner in which the
mechanism prescribed under the first proviso can conclude is by the
Governor granting assent to the bill. Thus, there is no scope for the Governor
to reserve a bill for the consideration of the President once it is presented to
him for reconsideration after compliance with the procedure laid down in
the first proviso.

204. However, for the sake of completeness, we deem it necessary to discuss a
possible scenario wherein the Governor may have the power to reserve the
W.P. (C) No. 1239 of 2023 Page 170 of 414

bill for the consideration of the President even after it is repassed by the State
legislature and presented to him for assent. Say, for instance, in a particular
case, the Governor withholds assent to a bill which is presented to him and
returns it to the House or the Houses together with a message requesting
them to reconsider certain aspects of the bill or introduce certain
amendments desirable thereto. However, the House or the Houses, in the
process of reconsideration, introduce certain changes which were not
suggested by the Governor in the message which he sent together with the
bill. In such a scenario, the House or Houses cannot be said to have
“ reconsidered the Bill accordingly ” which is a mandatory condition
prescribed under the first proviso. If the bill which is presented to the
Governor for assent in the second round could be said to have been
reconsidered by the House or Houses on wholly different and new grounds,
and if those changes are of such a nature where a reservation for the
consideration of the President may be desirable, then the Governor would
not be precluded from reserving the bill for the consideration of the
President.

205. However, if the bill is repassed by the House or Houses without
amendments, or only with such amendments as were suggested by the
Governor in his message, then the procedure prescribed under the first
proviso could be said to be fully complied with and the Governor would be
W.P. (C) No. 1239 of 2023 Page 171 of 414

bound to signify his assent thereto and would be precluded from reserving
the bill for the consideration of the President.

206. We say so because the procedure laid down in the first proviso cannot be
construed as giving the State legislature the unfettered power to introduce
changes to the bill which alter its very nature, or which, for instance, fall
foul of the second proviso to Article 200. In such a scenario, the Governor
would have all the three options which are available to him when a bill is
presented to him in the first instance. However, whenever the House or
Houses reconsider the bill “accordingly”, that is, in accordance with the
suggestions of the Governor and pass it with or without amendments, the
Governor is bound to act as per the clear constitutional directive laid down
in the first proviso.

207. As we shall also discuss later, any reservation of a bill by the Governor for
the consideration of the President on the ground that the bill was not
reconsidered as per the procedure prescribed in the first proviso would be
subject to judicial scrutiny.

208. Coming to the facts of the present case, out of twelve bills which are the
subject matter of the present petition, two were reserved by the Governor for
the consideration of the President in the first instance of their presentation.
W.P. (C) No. 1239 of 2023 Page 172 of 414

As regards the remaining ten bills, the Governor declared a withholding of
assent, however, the bills were returned without any message as is envisaged
under the first proviso. What stands out as a glaring omission on the part of
the Governor is that the day on which the withholding of assent was
declared, the decision in State of Punjab (supra) had already been passed
and even the notice in the present petition had been issued. Thus, it was
expected of the Governor that he would not declare a simpliciter withholding
of assent of the bills without specifying the reasons for such withholding and
also without making recommendations as regards the desirability of
introducing any amendments by the State legislature while reconsidering the
bills.

209. In light of the language of Article 200, and also keeping in mind its
interpretation by this Court in State of Punjab (supra) , there was no room
for the Governor to declare a simpliciter withholding of assent without
taking recourse to the first proviso as that virtually amounts to the exercise
of absolute veto by the Governor, a power which is conspicuously absent
from our constitutional scheme.

210. In the absence of any message under the first proviso by the Governor, the
State legislature was left with no other option but to proceed on the
assumption that the bills were required to be reconsidered in its entirety. The
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State legislature proceeded on this assumption and the said 10 Bills were
reconsidered in a special sitting and were passed without any material
changes and presented to the Governor on the same day. Thereafter, the
Governor, rather than giving his assent to the Bills, went on to reserve the
Bills for the consideration of the President on the ground that the Bills were
repugnant to Entry 66 of the List I of the Schedule VII to the Constitution.

211. For the reasons that we have assigned in our foregoing discussion, we are of
the view that the Governor could not have reserved the Bills for the
consideration of the President once they were reconsidered by the State
legislature and presented to him without any amendments, particularly when
the Governor sent back the Bills to the State legislature without any message
on an earlier occasion. As a natural consequence of the reservation of the
bills for the consideration of the President having been found to be in
contravention of the procedure prescribed under Article 200 of the
Constitution and thus, illegal and void, any subsequent decision taken by the
President on those Bills would also be non-est and is thus declared to be void
ab-initio .

iii. Whether there is an express constitutionally prescribed time-limit
within which the Governor is required to act in the exercise of his
powers under Article 200 of the Constitution?

W.P. (C) No. 1239 of 2023 Page 174 of 414


212. It was argued by the petitioner that the Governor in exercise of his powers
under Article 200 is required to act promptly and the absence of any
prescribed time period should not be construed as allowing the Governor the
liberty to act on his own free will and volition. It was also submitted that
the expression “ as soon as possible ” appearing in the first proviso places an
obligation on the Governor to act promptly and with expedience.


213. The petitioner also placed reliance on the recommendations made by the
Sarkaria Commission and the Punchhi Commission to argue that the Court
should read in some time-limit into the scheme of Article(s) 200 and 201
respectively to prevent inaction on the part of the Governor and the
President.

214. Refuting the contention of the petitioner, the learned Attorney General
argued that in the absence of any prescribed time-limit in the text of the
provision, it would not be open to the Court to read in a time-limit and the
only way to do so would be by way of a constitutional amendment. He
placed reliance on the decision of this Court in Nambudiri (supra) to argue
that this Court had expressly rejected the idea that there is a time limit which
circumscribes the exercise of functions of the Governor under Article 200.
W.P. (C) No. 1239 of 2023 Page 175 of 414



215. The arguments advanced before us present an interesting question whether
it would be open to the courts to read in a time limit for the exercise of a
power by a constitutional authority where no such limit is prescribed by the
Constitution. We have expressly held during the course of answering the
previous issue that the scheme of Article 200 does not envisage either the
exercise of a pocket or an absolute veto by the Governor. The use of the
expression “ shall ” in the substantive part indicates that the Governor is
under an obligation to choose from one of the three options that are made
available to him. By virtue of the first proviso attaching itself to the option
of withholding of assent, as discussed earlier, the possibility of an absolute
veto is also ruled out as the Governor must assent to the bill once it is
presented to him after the procedure prescribed in the first proviso is
complied with.

216. However, unlike many countries across the globe wherein a provision for
deemed assent upon the expiry of the specified time period has been made,
there is no such provision in our Constitution. The only manner in which a
temporal imperative has been weaved into the scheme of Article 200 is by
the use of the expression “ as soon as possible ” in the first proviso. The said
expression, which also appears in Article 111 of the Constitution, was the
subject of some debate in the Constituent Assembly.
W.P. (C) No. 1239 of 2023 Page 176 of 414



217. Article 111, which provides for the President’s assent to bills passed by
Parliament was originally numbered as Article 91 under the Draft
Constitution and it provided a time-limit of six-weeks to the President to
send back the bill to the House(s) for reconsideration. The Draft article read
as follows:
“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, not later than six weeks
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
provision thereof, and, in particular, will consider the
desirability of introducing any such amendments as he may
recommend in his message, and the Houses shall reconsider
the Bill accordingly.”

218. During the Constituent Assembly debates, Dr. B.R. Ambedkar moved an
amendment to substitute the expression “ not later than six weeks ” with “ as
soon as possible ”. Further in the debate, Shri Naziruddin Ahmad advocated
for a change in the aforesaid amendment and sought to substitute the term
“ as soon as possible ” with “ as soon as may be ”. His contention rested on
the reasoning that the phrase, “ as soon as possible ” which was introduced
by Dr. Ambedkar in his amendment in place of the original wording used in
Article 91, that is, “ not later than six weeks ”, imposed an unduly stringent
W.P. (C) No. 1239 of 2023 Page 177 of 414

obligation upon the President. He was of the opinion that “ as soon as
possible ” mandates immediate action, thereby curtailing the President’s
scope to engage in a careful and deliberate review of the bill presented for
assent. He expressed concern that such a rigid constraint could give rise to
hasty decisions, devoid of any careful examination of the presented bill. In
his view, the formulation ran the risk of undermining the quality of the
President’s judgment under Article 111. He expressed his opinion as
follows:
“[...] The Proviso is to the effect that “the President may, as
soon as possible, after the presentation of the Bill, return the
Bill,” and so on. I want to make it “as soon as may be”. If we
leave it exactly as Dr. Ambedkar would have it, it leaves no
margin. ‘As soon as possible’ means immediately. Possibility
which means physical possibility is the only test. It may leave
no breathing time to the President. The words ‘may be’ give
him a reasonable latitude. It would mean, “reasonably
practicable”. This is the obvious implication. That is the only
10
reason why I have suggested amendment .”


219. To avoid the aforesaid possibilities, Shri Naziruddin Ahmad proposed the
adoption of “ as soon as may be ”, which he interpreted to mean “ as soon as
is reasonably practicable ”. In his opinion, this change would allow the
President greater flexibility and sufficient time to thoroughly examine the
provisions of the bill presented to him. Such freedom would prove
particularly valuable when the President contemplates returning the bill to

10
8, C ONSTITUENT A SSEMB . D EB ., (May 20, 1949) 192.
W.P. (C) No. 1239 of 2023 Page 178 of 414

the House(s) for reconsideration, especially in circumstances where
amendments might be recommended. The essence of Shri Ahmad’s
amendment was to safeguard the President’s ability to render well-reasoned
and thoughtful decisions without any rigid time constraints.


220. Shri P.S. Deshmukh expressed his opposition to the amendment proposed
by Dr. B.R. Ambedkar, deeming the suggested substitution of the words as
unnecessary. He, on the other hand, argued that the original phrasing,
particularly the expression “ not later than six weeks ”, ought to remain
unaltered, as it established a precise time frame for the President to act
accordingly. He further argued that this specific time frame mandated that
the President must convey his decision to return the bill for reconsideration
as expeditiously as possible, and in no event beyond six-weeks. He opined
that preserving the words “ not later than six weeks ” was quintessential to
ensure timely action, thereby preventing undue delays in the legislative
process to send the bills back to the House(s) for reconsideration.


221. Shri H.V. Kamath vehemently opposed the amendment put forward by Dr.
Ambedkar. Advocating for expeditious and timely action, he argued that,
“ in human nature, if you will permit me to say so, unless there is a
compelling sense of duty or service, there is always a tendency to
W.P. (C) No. 1239 of 2023 Page 179 of 414

11
procrastinate ”. It was his opinion that such tendencies to procrastinate
must be rooted out by infusing a standard of duty or service to ensure timely
action on part of the President. He further opined that there exists no
assurance that every President of India will consistently adhere to the
principle of timely action in legislative processes. Therefore, according to
him, it was very necessary that the “ Constitution should provide specifically
12
a time limit for a contingency of this nature ” . He believed the phrase “ as
soon as possible ” to be vague, purposeless and meaningless, and argued that
such vague phrases have no place in a provision of such an important nature.


th
222. In light of the debate which took place on 20 May 1949, the proposed
amendment to Article 91 was adopted by the Assembly, thereby substituting
the expression “ not later than six weeks ” with “ as soon as possible ” and the
same came to be added to the Constitution.


223. What can be postulated from this discussion of the relevant Constituent
Assembly debates is that although our constitutional makers expressed their
concerns for the possibility of an undue delay in the legislative process on
account of the human nature to procrastinate, yet they nevertheless
proceeded to adopt the phrase “ as soon as possible ” in the original Article

11
ONSTITUENT SSEMB EB
8, C A . D , (May 20, 1949) 194.
12
8, C ONSTITUENT A SSEMB . D EB . (May 20, 1949) 195.
W.P. (C) No. 1239 of 2023 Page 180 of 414

91. This adoption and amendment of draft Article 91 reflects a sense of
inherent trust reposed by the Constituent Assembly that the President would
execute his functions as enshrined under Article 111 of the Constitution in a
timely and efficient manner.


224. The expression also came to be adopted mutatis mutandis in Article 200.
The experience of the working of the Constitution, more particularly, Article
200, has shown that the apprehensions expressed by some of the members
of the Constituent Assembly have unfortunately proven to be prophecy. As
we have discussed in the preceding paragraphs, one of the prominent
grievances of the State governments as recorded by the Sarkaria
Commission and Punchhi Commission reports was that the exercise of the
power under Article 200 by the Governor, not being a time-bound process,
leads to significant legislative delay and that certain bills are withheld in the
Governor’s secretariat for years.

225. Not taking any action on the bills for an unreasonable and prolonged period
of time virtually vests the Governor with the power of pocket veto and the
same cannot be held to be permissible within our constitutional scheme. Dr.
Singhvi had submitted during the course of his arguments that there is no
scope for the Governor to decide not to decide. Article 200, being the final
step in the process of the birth of a legislative enactment, the stage wherein
W.P. (C) No. 1239 of 2023 Page 181 of 414

life is breathed into an otherwise lifeless document, cannot be interpreted in
a manner which allows the Governor to remain silent and exhibit inaction
upon the bills which are submitted to him after having received the approval
of the majority of the State legislature.


226. This Court in Durga Pada Ghosh v. State of West Bengal reported in (1972)
2 SCC 656 whilst dealing with a writ in the nature of habeas corpus was
called upon to examine the meaning and import of the expression “ as soon
as may be ” appearing in Article 22(5) of the Constitution and its significance
in communication of the grounds of detention and disposal of the
representation of the detenu. In the said case, the detenu came to be arrested
and put in preventive detention in December, 1971. The detenu moved a
representation which was received in early January, 1972. However, his
representation came to be considered by the State government therein only
in February, 1972 and his detention was confirmed and communicated in
March, 1972. The detenu challenged the order of preventive detention
passed against him on the ground that there was an inordinate delay of
almost two months on part of the State government in considering his
representation even though the same had been received in January itself.
This Court held that the aforesaid expression must be seen in the context of
the scheme underlying Article 22, more particularly, the importance that it
occupies in the constitutional set-up as regards the personal freedom of an
W.P. (C) No. 1239 of 2023 Page 182 of 414

individual and in a manner whereby the provision does not lose both its
purpose and meaning. The words “ as soon as may b e” in such context
implies anxious care on the part of the authority concerned to perform its
duty in this respect, as early as practicable, without avoidable delay. The
course of action which is expected from the concerned authority; being
communication of the grounds of arrest and disposal of the representation,
was required to be considered with a sense of urgency and must be done
with due promptitude or expedition and with reasonable dispatch. It was
further held that although there is no definite time-limit which can be laid
down within which such actions must be done, yet at the same time, whether
the appropriate authority had disposed of its obligation as expeditiously as
possible ought to be looked into keeping in mind the peculiar facts and
circumstances of each case. It further held that such constitutional
obligations cannot be ignored or justified on reasons of administrative delay
except where it is shown that ample arrangements were made to cope with
the situation that led to a delay and a certain degree of priority was accorded.
The relevant observations read as under:
“7. Now it is not disputed before us that on the question of
delay in considering the representation by the State
Government no hard and fast rule can be laid down and it is
a matter which falls for decision on the facts and
circumstances of each case. It may in this connection be
pointed out that in Jayanarayan case the writ petition was
referred to a Bench of five Judges to consider as to what
would be the question of period within which the State
W.P. (C) No. 1239 of 2023 Page 183 of 414

Government could dispose of the representation of the detenu
because it was felt that there was an apparent conflict
between Shyamal Chakraborty v. Commissioner of Police,
Calcutta and Khairul Haque v. State of West Bengal. After
considering the various decisions on the point this Court
expressly concluded thus:


“No definite time can be laid down within which a
representation of a detenu should be dealt with
save and except that it is a constitutional right of a
detenu to have his representation considered as
expeditiously as possible. It will depend upon the
facts and circumstances of each case whether the
appropriate Government has disposed of the case
as expeditiously as possible for otherwise in words
of Shelat, J., who spoke for this Court in the case
of Khairul Haque : ‘it is obvious that the obligation
to furnish the earliest opportunity to make a
representation loses both its purpose and
meaning’.”

8. The scheme underlying Article 22 of the Constitution
highlights the importance attached in our constitutional set-
up to the personal freedom of an individual. Sub-articles (1)
and (2) refer to the protection against arrest and detention of
a person under the ordinary law. Persons arrested or
detained under a law providing for preventive detention are
dealt with in sub-articles (4) to (7). Sub-article (5) says that
when a person is detained in pursuance of an order under a
law providing for preventive detention the grounds on which
the order is made have to be communicated to the person
concerned as soon as may be and he has to be afforded
earliest opportunity to represent against the order. The
object of communicating the grounds is to enable the detenu
to make his representation against the order. The words “as
soon as may be” in the context must imply anxious care on
the part of the authority concerned to perform its duty in this
respect as early as practicable without avoidable delay.
W.P. (C) No. 1239 of 2023 Page 184 of 414

Similarly, when the representation is made it is in the fitness
of things that the said representation should be considered
with the same sense of urgency with which the grounds are
intended to be communicated to the detenu. That is the only
way in which the purpose, for which the earliest
communication of the grounds to the person concerned is
provided, can be achieved. The representation must,
therefore, be considered with due promptitude or expedition
and without avoidable delay, in other words with reasonable
dispatch. As held by this Court in Jayanarayan case, the
representation should be considered as expeditiously as
possible. As the question of delay in considering the
representation falls for determination on the facts and
circumstances of each case the binding force of a past
precedent for a later case would largely depend on the degree
of close similarity of the circumstances dealt with therein.
[...]”
(Emphasis supplied)


227. In Keisham (supra) the question that arose before this Court was whether
courts can direct the Speaker to decide disqualification petitions pending
before it within a reasonable period of time, and this Court speaking
eruditely through R.F. Nariman, J., answering the aforesaid question in an
affirmative held as under:
(i) First, that the Speaker, being the quasi-judicial authority for the
purposes of the Tenth Schedule, is duty bound to take a decision on
disqualification petitions within a reasonable time. Any failure of the
Speaker in exercising his jurisdiction or refraining from deciding such
petition within a reasonable time would be an error that would attract
W.P. (C) No. 1239 of 2023 Page 185 of 414

the scrutiny of the courts in judicial review, notwithstanding the
exclusive jurisdiction to the exclusion of the courts that has been
conferred upon the Speaker in terms of Paragraph 6 of the Tenth
Schedule. The relevant observations read as under: -
24. It is clear from a reading of the judgment in
Rajendra Singh Rana and , in particular, the
underlined portions [italicised herein] of paras
40 and 41 that the very question referred by the
two-Judge Bench in S.A. Sampath Kumar has
clearly been answered stating that a failure to
exercise jurisdiction vested in a Speaker cannot
be covered by the shield contained in Para 6 of
the Tenth Schedule, and that when a Speaker
refrains from deciding a petition within a
reasonable time, there was clearly an error
which attracted jurisdiction of the High Court
in exercise of the power of judicial review.

(Emphasis supplied)

(ii) Secondly, it observed that although Paragraph 6 of the Tenth
Schedule vests the Speaker with an exclusive jurisdiction to decide
disqualification petitions and ousts the reach of courts in such matters,
yet it does not mean that there is no scope of judicial review by the
courts or that the power to pass any direction(s) to the Speaker acting
under the Tenth Schedule does not exist. It was observed that the true
purport of such exclusive jurisdiction was only to ensure that no
obstacle comes in the way of the Speaker in deciding such petitions
W.P. (C) No. 1239 of 2023 Page 186 of 414

by way of injunctions from the courts. However, it by no means
interdicts the exercise of judicial review in aiding a prompt decision
on such disqualification petitions to ensure that the Speaker decides
these issues within a reasonable period. The relevant observations
read as under:
“30. A reading of the aforesaid decisions,
therefore, shows that what was meant to be
outside the pale of judicial review in para 110
of Kihoto Hollohan are quia timet actions in
the sense of injunctions to prevent the Speaker
from making a decision on the ground of
imminent apprehended danger which will be
irreparable in the sense that if the Speaker
proceeds to decide that the person be
disqualified, he would incur the penalty of
forfeiting his membership of the House for a
long period. Paras 110 and 111 of Kihoto
Hollohan do not, therefore, in any manner,
interdict judicial review in aid of the Speaker
arriving at a prompt decision as to
disqualification under the provisions of the
Tenth Schedule. Indeed, the Speaker, in acting
as a tribunal under the Tenth Schedule is bound
to decide disqualification petitions within a
reasonable period. [...] ”


(iii) Lastly, it held that although what would be a ‘reasonable period’ for
deciding such petitions by the Speaker largely depends on the facts of
each case yet, where there are no exceptional circumstances, the
Speaker should arrive at a decision within an outer time-limit of three-
months so that the avowed constitutional objective of anti-defection
W.P. (C) No. 1239 of 2023 Page 187 of 414

under the Tenth Schedule is not defeated. The relevant observations
read as under:
“30. [...] What is reasonable will depend on the
facts of each case, but absent exceptional
circumstances for which there is good reason,
a period of three months from the date on
which the petition is filed is the outer limit
within which disqualification petitions filed
before the Speaker must be decided if the
constitutional objective of disqualifying
persons who have infracted the Tenth Schedule
is to be adhered to. This period has been fixed
keeping in mind the fact that ordinarily the life
of the Lok Sabha and the Legislative Assembly
of the States is 5 years and the fact that persons
who have incurred such disqualification do not
deserve to be MPs/MLAs even for a single day,
as found in Rajendra Singh Rana, if they have
infracted the provisions of the Tenth
Schedule.”

(Emphasis supplied)

228. The aforesaid view was reiterated in State of Telangana v. Governor of
Telangana reported in (2024) 1 SCC 405 wherein this Court whilst dealing
with a similar issue pertaining to the pendency of a few bills before the
Governor of Telangana, held that the expression “ as soon as possible ” in
Article 200 has significant constitutional content and must be borne in mind
by the constitutional authorities. The relevant observations read as under:

“ 2. The first proviso to Article 200 states that the Governor
W.P. (C) No. 1239 of 2023 Page 188 of 414

may “as soon as possible after the presentation” of the Bill
for assent, return the Bill if it is not a Money Bill together
with a message for reconsideration to the House or Houses
of the State Legislature. The expression “as soon as
possible” has significant constitutional content and must be
borne in mind by constitutional authorities.”

(Emphasis supplied)


229. In Ram Chand (supra) certain parcels of land had been demarcated and
declared for compulsory acquisition vide a notification, sometime between
the years 1959-1965. However, the awards for compensation came to be
passed almost fourteen-years later in the year 1980. These awards came to
be challenged before this Court on the ground that since the statute in
question provides for payment of compensation in respect of the acquisition
made at the market value of the land, as it stood, at the time of publication
of the notification for declaration, the same necessarily meant that
compensation ought to be paid expeditiously and without delay. This Court
held that although the legislature by way of an amendment has now
prescribed a time-limit for making an award, yet it does not mean that prior
to such amendment there was no time-limit for payment of compensation or
that an award could be passed by the authorities at their own pace and
leisure. It held that where for exercise of any power no time-limit has been
prescribed, such power has to be exercised within a reasonable period of
time. It further held that sans any fixed time-limit, such powers cannot be
W.P. (C) No. 1239 of 2023 Page 189 of 414

exercised or subjected to delay in a manner that violates or circumvents the
object of the statute and the constitutional mandate under Article 31A of
timely acquisition and adequate compensation, respectively. The relevant
observations read as under:
“14. The Parliament has recognized and taken note of the
inaction and non-exercise of the statutory power on the part
of the authorities, enjoined by the provisions of the Act to
complete the acquisition proceedings within a reasonable
time and because of that now a time-limit has been fixed for
making of the award, failing which the entire proceeding for
acquisition shall lapse. But, can it be said that before the
introduction of the aforesaid amendment in the Act, the
authorities were at liberty to proceed with the acquisition
proceedings, irrespective of any schedule or time-frame and
to complete the same as and when they desired? It is settled
that in a statute where for exercise of power no time-limit is
fixed, it has to be exercised within a time which can be held
to be reasonable. This aspect of the matter can be examined
in the light of second proviso to Article 31-A of the
Constitution, which in clear and unambiguous terms
prohibits making of any law which does not contain a
provision for payment of compensation at a rate, which shall
not be less than the market value thereof. The Act is
consistent with the second proviso to Article 31-A, because it
provides for payment of compensation at the market value of
the land acquired. But, whether the constitutional and
statutory requirement of the payment of the market value to
the persons, whose lands have been compulsorily acquired,
is not being circumvented and violated by keeping the land
acquisition proceedings pending for more than a decade and
half, without making the awards and paying the
compensation, which has been pegged to the dates of
notifications under sub-section (1) of Section 4 of the Act,
W.P. (C) No. 1239 of 2023 Page 190 of 414

which in the present cases had been issued 14 to 21 years
before the making of the awards. [...]”

(Emphasis supplied)


230. In A.G. Perarivalan (supra) the facts germane for our discussion are that
the appellant convict therein had filed a mercy petition under Article 161 to
the Governor in December, 2015. The State Cabinet recommended the grant
of remission to the Governor in 2018. However, the Governor did not take
any decision on the mercy petition for two years despite receiving the
recommendation of the State Cabinet. Thereafter, upon a direction of this
Court, the Governor in 2021, by an order, forwarded the mercy petition of
the appellant to the President citing that the Union is the appropriate
authority to decide the same. This reference came to be challenged before
this Court wherein it was held as under:
(i) First, it was held that the “ limits within which the executive
Government can function under the Indian Constitution can be
ascertained without much difficulty by reference to the form of the
executive which our Constitution has set up”. The Court observed that
although the Governor is the head of the executive in the State, yet in
actuality, it is the Council of Ministers that carries on the executive
Government. It held that as per Article 163, the Governor shall
exercise his functions provided under different provisions of the
W.P. (C) No. 1239 of 2023 Page 191 of 414

Constitution only under the aid and advice of the Council of Ministers
except where he under the Constitution has been expressly authorised
to exercise such functions in his discretion. This Court, speaking
through L. Nageswar Rao, J., described this relation of the Governor
and the Council of Ministers as “ a hyphen which joins, a buckle which
fastens the legislative part of the State to the executive part ”. The

relevant observations read as under:
“18. The power to grant pardons, reprieves,
respites or remissions of punishment or to
suspend, remit or commute the sentence of any
person convicted of an offence against any law
related to which the executive power of the
State extends is vested in the Governor under
Article 161 of the Constitution. Article 162
makes it clear that the executive power of the
State shall extend to matters with respect to
which the legislature of the State has power to
make laws. Article 163 of the Constitution
provides that there shall be a Council of
Ministers with the Chief Minister at the head to
aid and advise the Governor in the exercise of
his functions, except insofar as he is by or
under this Constitution required to exercise his
functions or any of them in his discretion.

19. The limits within which the executive
Government can function under the Indian
Constitution can be ascertained without much
difficulty by reference to the form of the
executive which our Constitution has set up.
Our Constitution, though federal in its
structure, is modelled on the British
W.P. (C) No. 1239 of 2023 Page 192 of 414

parliamentary system where the executive is
deemed to have the primary responsibility for
the formulation of governmental policy and its
transmission into law though the condition
precedent to the exercise of this responsibility
is its retaining the confidence of the legislative
branch of the State. The Governor occupies the
position of the head of the executive in the State
but it is virtually the Council of Ministers in
each State that carries on the executive
Government. In the Indian Constitution,
therefore, we have the same system of
parliamentary executive as in England and the
Council of Ministers consisting, as it does, of
the members of the legislature is, like the
British Cabinet, “a hyphen which joins, a
buckle which fastens the legislative part of the
State to the executive part


20. Under the Cabinet system of Government
as embodied in our Constitution the Governor
is the constitutional or formal head of the State
and he exercises all his powers and functions
conferred on him by or under the Constitution
on the aid and advice of his Council of
Ministers, save in spheres where the Governor
is required by or under the Constitution to
exercise his functions in his discretion.
Wherever the Constitution requires the
satisfaction of the President or the Governor
for the exercise of any power or function by the
President or the Governor, as the case may be,
as for example in Articles 123, 213, 311(2)
proviso (c), 317, 352(1), 356 and 360, the
satisfaction required by the Constitution is not
the personal satisfaction of the President or of
the Governor but is the satisfaction of the
W.P. (C) No. 1239 of 2023 Page 193 of 414

President or of the Governor in the
constitutional sense under the Cabinet system
of Government. It is the satisfaction of the
Council of Ministers on whose aid and advice
the President or the Governor generally
exercises all his powers and functions.


21. Even though the Governor may be
authorised to exercise some functions, under
different provisions of the Constitution, the
same are required to be exercised only on the
basis of the aid and advice tendered to him
under Article 163, unless the Governor has
been expressly authorised, by or under a
constitutional provision, to discharge the
function concerned, in his own discretion.”

(ii) Secondly, it observed that the law is clear and explicit – the advice
of the State Cabinet is binding on the Governor when it comes to the
exercise of powers under Article 161. In the absence of any other
provision under the Constitution or any statute in this regard, the
Governor could not have deviated from the binding recommendations
of the State Cabinet and referred the mercy petition to the President.
It was held that such an action is contrary to the constitutional scheme.
The relevant observations read as under:
“24. The law laid down by this Court, as
detailed above, is clear and explicit. The advice
of the State Cabinet is binding on the Governor
in matters relating to commutation/remission
of sentences under Article 161. No provision
under the Constitution has been pointed out to
W.P. (C) No. 1239 of 2023 Page 194 of 414

us nor any satisfactory response tendered as to
the source of the Governor's power to refer a
recommendation made by the State Cabinet to
the President of India. In the instant case, the
Governor ought not to have sent the
recommendation made by the State Cabinet to
the President of India. Such action is contrary
to the constitutional scheme elaborated above.
[...] It is relevant to point out that the
recommendation made by the State Cabinet
was on 9-9-2018, which remained pending
before the Governor for almost two-and-a-half
years without a decision being taken. It was
only when this Court started enquiring about
the reason for the decision being delayed, the
Governor forwarded the recommendation
made by the State Government for remission of
the appellant's sentence to the President of
India.”
(Emphasis supplied)

(iii) Thirdly, as regards the inaction of the Governor in deciding the mercy
petition for more than two-years, this Court held that although there
is a certain degree of immunity with respect to the exercise of powers
by the Governor under the Constitution, yet it is an equally settled
position that the courts have the power to judicially review the
functioning of the Governor on certain grounds. It held that a non-
exercise of these powers, such as, under Article 161 is one such
ground for the exercise of judicial review as the said provision
pertains to the liberty of individuals and any inexplicable delay not on
W.P. (C) No. 1239 of 2023 Page 195 of 414

account of the prisoners, is inexcusable. The relevant observations
read as under:
“24. [...] It is relevant to point out that the
recommendation made by the State Cabinet was
on 9-9-2018, which remained pending before the
Governor for almost two-and-a-half years
without a decision being taken. It was only when
this Court started enquiring about the reason for
the decision being delayed, the Governor
forwarded the recommendation made by the
State Government for remission of the
appellant's sentence to the President of India.

25. We are fully conscious of the immunity of the
Governor under the Constitution with respect to
the exercise and performance of the powers and
duties of his office or for any act done or
purported to be done by him in the exercise and
performance of such powers and duties.
However, as held by this Court in numerous
decisions, this Court has the power of judicial
review of orders of the Governor under Article
161, which can be impugned on certain grounds.
Non-exercise of the power under Article 161 is
not immune from judicial review, as held by this
Court in Epuru Sudhakar v. State of A.P. Given
petitions under Article 161 pertain to the liberty
of individuals, inexplicable delay not on account
of the prisoners is inexcusable as it contributes
to adverse physical conditions and mental
distress faced by a prisoner, especially when the
State Cabinet has taken a decision to release the
prisoner by granting him the benefit of
remission/commutation of his sentence.”

(Emphasis supplied)

W.P. (C) No. 1239 of 2023 Page 196 of 414

(iv) Lastly, as regards the contention of the respondents that the decision
of the Governor to forward the mercy petition to the President was
done in exercise of his discretion owing to the irrational
recommendation of the Cabinet in line with the ratio of M.P. Special
Police (supra) , this Court held that the aforesaid decision would not
be applicable, since there is nothing to make out a case of irrational
or non-consideration of relevant factors by the State government to
warrant the Governor exercising his discretion and deviating from
their recommendations as laid down in M.P. Special Police (supra) .
The relevant observations read as under:
“29. We are afraid that the judgment of this

Court in M.P. Special Police Establishment is
not applicable to the facts of the present case.
No arguments have been put forth to make out
a case of non-consideration of relevant factors
by the State Cabinet or of the State Cabinet
having based its recommendation on
extraneous considerations. Moreover, in the
said case, the Governor had taken a decision
which was subsequently challenged, unlike the
present case, where the Governor has merely
forwarded the recommendation made by the
State Cabinet to the President of India.”

Accordingly, this Court held as under:

“38. In conclusion , we have summarised our

findings below:
W.P. (C) No. 1239 of 2023 Page 197 of 414


38.1. The law laid down by a catena of
judgments of this Court is well settled that the
advice of the State Cabinet is binding on the
Governor in the exercise of his powers under
Article 161 of the Constitution.

38 .2. Non-exercise of the power under Article
161 or inexplicable delay in exercise of such
power not attributable to the prisoner is subject
to judicial review by this Court, especially
when the State Cabinet has taken a decision to
release the prisoner and made
recommendations to the Governor to this
effect.


38.3. The reference of the recommendation of
the Tamil Nadu Cabinet by the Governor to the
President of India two-and-a-half years after
such recommendation had been made is
without any constitutional backing and is
inimical to the scheme of our Constitution,
whereby “the Governor is but a shorthand
expression for the State Government” as

observed by this Court.

38.4. The judgment of this Court in M.P.
Special Police Establishment has no
applicability to the facts of this case and
neither has any attempt been made to make out
a case of apparent bias of the State Cabinet or
the State Cabinet having based its decision on
irrelevant considerations, which formed the
fulcrum of the said judgment. [...]”

(Emphasis supplied)


W.P. (C) No. 1239 of 2023 Page 198 of 414

231. What is discernible from a reading of the decisions discussed above is that
despite there being no prescribed time-limit for the Governor to take a
decision under Article 200, the provision cannot be read in a manner which
allows the Governor to not take action upon bills which are presented to him
for assent and thereby delay and essentially roadblock the law-making
machinery in the State. As held in A.G. Perarivalan (supra), the inaction of
the Governor would be subject to judicial review and in the absence of any
cogent reasons for the delay, it would be open to the courts to issue directions
for a time-bound decision on a case-to-case basis.

232. In Purushothaman Nambudiri (supra), two questions fell for the
consideration of this Court; first, whether a bill which has been pending for
assent before the President or the Governor could be said to have lapsed with
the dissolving or dissolution of the State legislative assembly and secondly,
whether Article 200 mandates that a bill sent back by the President or the
Governor for reconsideration must be looked into by the very same House
that originally passed it. Before looking into the effect of the dissolution of
the House on bills pending before the Governor for assent, the Court, while
examining the effect of prorogation of the House on the bills pending before
the State legislature, observed that Article 196 of the Constitution that deals
with the introduction and passing of bills in the State legislature reinforces
that the parliamentary form of government established under the
W.P. (C) No. 1239 of 2023 Page 199 of 414

Constitution is markedly different from the Parliament in England inasmuch
as clause (3) of Article 196 explicitly stipulates that a bill pending in the
legislature of a State will not lapse by reason of the prorogation of the House
or Houses thereof.

233. Thereafter, the Court observed that Article 196(5) provides for three
categories of cases where a bill pending before a Legislative Assembly
would lapse upon its dissolution. Those are as follows:
a. A bill pending before the Legislative Assembly of a unicameral State
legislature;
b. A bill pending before the Legislative Assembly of a bicameral State
legislature; or
c. A bill which originated in the Legislative Assembly and is yet to reach
the Legislative Council.

234. In light of the aforesaid, the Court reached the conclusion that since Article
196 only stipulates as to when a bill pending in the State legislature could
be said to have lapsed, be it the Legislative Assembly or the Legislative
Council, any bill which has been passed by the State legislature and is
pending assent of the Governor or President, would be outside the ambit of
the doctrine of lapse of pending business as contained in Article 196(5) of
the Constitution. Had the intent of the framers of the Constitution been
W.P. (C) No. 1239 of 2023 Page 200 of 414

otherwise, a specific provision to that effect providing for lapse of a bill
awaiting assent would have been inserted. The natural corollary of the
omission of the aforesaid is that Article 196(5) is exhaustive in nature, and
only the circumstances enumerated therein would result in any lapse of a
pending bill, as otherwise there was no need for inserting clause (5) in
Article 196 after having already provided the situations where a bill would

not lapse in clause(s) (3) and (4) of the Constitution respectively.

235. Thereafter, the Court adverted to Articles 200 and 201 of the Constitution
respectively in order to determine the effect of dissolution on bills pending
the assent of the Governor or the President. Adverting to the procedure
prescribed under Articles 200 and 201 respectively, the Court noted that both
the Articles do not prescribe a time-limit within which the Governor or
President are required to come to a decision on the bill presented to him
unlike other provisions in the Constitution where it was felt necessary and
expedient to prescribe a time-limit such as Articles 197(1)(b) and (2)(b)
respectively. This, in the opinion of the Court, necessarily meant that the
omission in prescribing a time-limit within which the Governor or the
President should reach a decision under Articles 200 and 201 respectively
suggests that the framers of the Constitution knew that a bill pending the
assent of the Governor or the President does not stand the risk of getting
lapsed on the dissolution of the Assembly. Any other contrary view would
W.P. (C) No. 1239 of 2023 Page 201 of 414

lead to a chilling effect whereby a fair number of bills which may have been
passed by the Assembly during the last months of its existence, may be
exposed to the risk of lapse, consequent to the dissolution of the Assembly,
unless assent is either withheld or granted before the date of the dissolution,
which could not have been the intention in the absence of a time-limit under

Articles 200 and 201 respectively. The relevant observations read as under:
“ 15 . It is clear that if a Bill pending the assent of the
Governor or the President is held to lapse on the dissolution
of the Assembly it is not unlikely that a fair number of Bills
which may have been passed by the Assembly, say during the
last six months of its existence, may be exposed to the risk of
lapse consequent on the dissolution of the Assembly, unless
assent is either withheld or granted before the date of the
dissolution. If we look at the relevant provisions of Articles
200 and 201 from this point of view it would be significant
that neither Article provides for a time limit within which the
Governor or the President, should come to a decision on the
Bill referred to him for his assent. Where it appeared
necessary and expedient to prescribe a time limit the
Constitution has made appropriate provisions in that behalf
(vide : Article 197(1)(b) and (2)(b)). In fact the proviso to
Article 201 requires that the House to which the Bill is
remitted with a message from the President shall reconsider
it accordingly within a period of six months from the date of
the receipt of such message. Therefore, the failure to make
any provision as to the time within which the Governor or the
President should reach a decision may suggest that the
Constitution-makers knew that a Bill which was pending the
assent of the Governor or the President did not stand the risk
of lapse on the dissolution of the Assembly. That is why no
time limit was prescribed by Articles 200 and 201. Therefore,
in our opinion, the scheme of Articles 200 and 201 supports
the conclusion that a Bill pending the assent of the Governor
W.P. (C) No. 1239 of 2023 Page 202 of 414

or the President does not lapse as a result of the dissolution
of the Assembly, and that incidentally shows that the
provisions of Article 196(5) are exhaustive.”

(Emphasis supplied)

236. What is clearly discernible from a plain reading of the aforesaid decision is
that the observations as regards the absence of a time-limit under Articles
200 and 201 respectively were made in the context of the impact of
dissolution of the State legislature on the bills which were pending assent
from the Governor. Applying the doctrine of constitutional continuity of the
State legislature as an institution and the absence of any specific time-limit
prescribed under Article 200, the Court arrived at a finding that such bills
would not lapse by virtue of dissolution of the State legislature. It is
important to note that the observations in Nambudiri (supra) were not made
in the context of the expediency with which the Governor is expected to act
in discharge of his duties under Article 200. Further, while this Court said
that there was no prescribed time-limit in Article 200, it held that the reason
for this was that the framers of the Constitution knew that such a bill would
not lapse automatically with the dissolution of the House. It was never
observed or even remotely indicated by this Court that the exercise of power
by the Governor under Article 200 was not of an urgent or expedient
character and thus, could be exercised even beyond reasonable time.

W.P. (C) No. 1239 of 2023 Page 203 of 414

237. It is crucial to understand that the prescription of a general time-limit by this
Court within which the ordinary exercise of power by the Governor under
Article 200 must take place, is not the same thing as amending the text of
the Constitution to read in a time-limit, thereby fundamentally changing the
procedure and mechanism of Article 200. This is because, reading such a
time-limit into the provision neither militates against the underlying object
of the said provision nor does it alter the procedure that is envisaged therein.
On the contrary, it only reinforces the sense of expediency and urgency that
has been time and again emphasized since the adoption of the Constitution.
The reason why the prescription of a time-limit does not tantamount to an
alteration or amendment is because the time-limit that is being prescribed by
cannot be understood to be a hanging sword on the Governor whereby even
an unavoidable non-compliance would automatically ensue consequences of
‘assent’. The nature of such prescription is quite different which may be
better explained through the concept of judicial review.

238. For the exercise of judicial review, the existence of a certain set of definitive
standards against which the courts can embark upon their scrutiny, is
quintessential. Without these standards, the power of judicial review could
be said to be ineffective in certain contexts which shall be elucidated upon
in the latter parts of the judgment. The doctrine of stare-decisis is not just
concerned with ensuring that decisions of higher courts or of larger benches
W.P. (C) No. 1239 of 2023 Page 204 of 414

are duly adhered to and questions of law already settled and put to quietus
by higher judicial authorities are not disturbed. The idea is also to infuse a
sense of judicial comity within the intertwined hierarchical courts in the
manner of their functioning. Additionally, one of the core precepts of stare-
decisis is that not only the decisions but the very decision-making process
of the courts are predicated upon a discernible standard, often coined as
‘judicially manageable standards’. We shall discuss this in more detail in the
later parts of this judgment.

239. Any time-limit in the exercise of powers in terms of Article 200 of the
Constitution should not be construed as timelines laid within the edifice of
the provision, rather should be understood as timelines that would serve as
a lodestar for the purpose of exercise of judicial review by the courts, a
benchmark tool to aid and enable the courts in ascertaining if any inaction
or malfeasance has occasioned in the exercise of such powers. These
timelines no doubt demand the earnest adherence by the Governor, however,
these being nothing more than tools upon which scrutiny by judicial review
is to be premised, remain as prescriptions within the realm of judicial review
alone and do not transgress into the legislative bounds or amount to
alteration of the text or authority of Article 200 of the Constitution. The
reason why these time-lines do not immolate the very fabric of Article 200
is because the said provision even with the infusion of these time-limit still
W.P. (C) No. 1239 of 2023 Page 205 of 414

remains markedly different from its counterpart provisions where such time-
limits are legislatively prescribed. For instance, Article 75 of the
Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of
the U.S. Constitution, where if no decision is taken within the stipulated
time-limit by the President then the bills are deemed to have been assented
to.

240. Thus, it is important to take note of this very fine but pertinent distinction
that the prescription of a time-limit by this Court into Article 200 of the
Constitution does not fundamentally change the procedure which has been
envisaged. While the reading in of a time-limit under Article 200 would have
meant that there would be deemed assent upon failure of the Governor to
comply with the said timeline, the prescription of a reasonable time period
does not introduce any such mechanism or deeming fiction in Article 200.

241. What emerges from the above is that the fine but pertinent distinction
between the time-limits that are expressly prescribed and those that are
judicially evolved is only that in the former the consequence of deemed
assent emanates from the provision itself whereas in the latter there could be
no such consequence except to the extent that the courts judicially reviewing
the action or inaction can direct a decision to be taken within a time-bound
manner, or in exceptional cases like the one at hand, deem the assent to have
W.P. (C) No. 1239 of 2023 Page 206 of 414

been granted under Article 142 of the Constitution, which we shall again
discuss in the later parts of this judgment.

242. When prescribing such a time-limit for the exercise of power under Article
200, we are guided by the inherent expedient nature of the procedure
prescribed thereunder and the well-settled legal principle that where no time-
limit for the exercise of a power is prescribed, it should be exercised within
a reasonable period.

243. What would be a reasonable period would vary from situation to situation,
however, in the present case, taking guidance from the timelines that have
been prescribed by the Sarkaria and the Punchhi Commission, we have
arrived at the view that in the absence of any exceptional circumstances, the
Governor would be able to exercise his powers under the Article within the
maximum period prescribed by us.

244. While the reading in of an absolute time-limit would have left the Governor
with no choice but to comply with it, the prescription of the judicially
evolved time-limits by us leaves it open for the Governor to justify the delay
caused by providing reasonable grounds. Delay caused by the Governor
beyond the prescribed time-limits would be justiciable and the courts, with
deference to applicable judicial principles, would be fully competent to
W.P. (C) No. 1239 of 2023 Page 207 of 414

ascertain whether the delayed exercise of power by the Governor under
Article 200 was based on any reasonable grounds or not.

245. The prescription of a time-limit is with a view to ensure that the Governor
is not conferred with the power of exercising a pocket veto under the scheme
of Article 200, and hinder the law-making process in the State without the
existence of any reasonable grounds. While the decision in Nambudiri
( supra) does not make the prescription of such a time-limit by the Court
impermissible, the decisions, adverted to above, vest this Court with
sufficient power to ensure that the procedure prescribed under Article 200 is
followed by the Governor in a constitutionally permissible manner and in
line with the principles of parliamentary democracy keeping in mind the
nature of the power. Such an approach also ensures that the State
governments are not left remediless in cases of malicious, arbitrary or
capricious exercise of power by the Governor under Article 200.


246. We also deem it necessary to prescribe a timeline for the discharge of
functions by the Governor under Article 200. The Sarkaria and Punchhi
Commissions in their reports adopted this view, keeping in mind the
importance of an expeditious decision under Article 200 for the smooth
functioning of electoral democracy in the States. An elected government
W.P. (C) No. 1239 of 2023 Page 208 of 414

gets the mandate of the people for a limited period of five-years within which
it is expected to legislate on issues pertaining to the electorate. If the
Governor, for whatsoever reasons, exhibits reluctance or lethargy in
decision making, particularly when it is concerned with the assent to bills, it
severely impacts the ability of the government to act upon its mandate and
deliver to the people who brought them into power. Any obstacle created by
the Governor, whether advertently or inadvertently, severely impacts the
perception of the elected government in the subsequent elections and thereby
also negatively affecting their chances of coming back into power. The
problem is further exacerbated when the political party in power in the State
is different from the one at the Centre, and the Governor should be more
cautious and non-partisan in the exercise of his functions in such a scenario.
Any deliberate inaction on part of the Governor in assenting to bills or
reserving them for the consideration of the President, thus, has to be viewed
as a serious threat to the federal polity of the country and the aggrieved
governments cannot be left remediless, desperately waiting for a decision at

the hands of the Governor.

247. This Court in State of Punjab (supra) held that the Constitution terms any
inaction on part of the Governor as deplorable and that he cannot indefinitely
keep the bills passed by the State legislature on a chokehold. The relevant
observations read as under:
W.P. (C) No. 1239 of 2023 Page 209 of 414


“24. [...] The Constitution evidently contains this provision
bearing in mind the importance which has been attached to
the power of legislation which squarely lies in the domain of
the State Legislature. The Governor cannot be at liberty to
keep the Bill pending indefinitely without any action
whatsoever .”
(Emphasis supplied)

248. It is not unusual for this Court to prescribe time-limits for the discharge of
certain functions, even in cases where no specific time-limit has been
prescribed. Recently, in Periyammal (Dead) thr. LRs & Ors. v. Rajamani
& Anr. Etc. reported in 2025 INSC 329 , a two-Judge Bench of this Court,
of which one of us (J.B. Pardiwala, J.) was a part, directed all the High
Courts to issue directions to all the District Courts to decide pending
execution petitions within a period of six-months without fail. The directions
read as follows:
“75. In view of the aforesaid, we direct all the High Courts
across the country to call for the necessary information from
their respective district judiciary as regards pendency of the
execution petitions. Once the data is collected by SLP (C)
Nos. 8490, 8491 & 8492 of 2020 Page 77 of 78 each of the
High Courts, the High Courts shall thereafter proceed to
issue an administrative order or circular, directing their
respective district judiciary to ensure that the execution
petitions pending in various courts shall be decided and
disposed of within a period of six months without fail
otherwise the concerned presiding officer would be
answerable to the High Court on its administrative side.
Once the entire data along with the figures of pendency and
disposal thereafter, is collected by all the High Courts, the
W.P. (C) No. 1239 of 2023 Page 210 of 414

same shall be forwarded to the Registry of this Court with
individual reports.”

249. We have already discussed that in Keisham (supra) , a three-Judge Bench
of this Court fixed an outer time-limit of three-months for the Speaker to
decide disqualification petitions under the Tenth Schedule. The Court
pertinently observed that the said period was fixed “ keeping in mind the fact
that ordinarily the life of the Lok Sabha and the Legislative Assembly of the
States is five-years ”. This Court has also, in a number of decisions, set down
and reiterated that the High Courts must pronounce judgments on reserved
matters within a period of six-months. Inaction on part of any constitutional
authority being subject to judicial review, it is important that there are
reasonably laid down standards of justiciability of such inaction, and the
timelines prescribed by us serve that purpose. Even the Constituent
Assembly had initially laid down a period of six-weeks for the President to
take action on bills submitted to him under Article 111. However, that was
later changed to account for any exceptional circumstance that may arise in
the discharge of functions by the President or the Governor. However, the
expression “ six-months ” was replaced with “ as soon as possible ”, which
though not determinable, envisages an expeditious disposal of bills, unless
in cases where some impossibility exists. The prescription of timelines by
us balances the objective of expediency as well as the desirability of having
some flexibility in cases of existence of an impossibility in discharge of
W.P. (C) No. 1239 of 2023 Page 211 of 414

functions in an expeditious manner. Flexibility in the discharge of a function
cannot be allowed to be stretched to an extent that renders the very object
underlying such function otiose, resulting into the proverbial snapping of the
constitutional machinery.

250. Keeping in mind the constitutional significance of Article 200 and the role
it plays in the federal polity of the country, the following timelines are being
prescribed. Failure to comply with these timelines would make the inaction
of the Governors subject to judicial review by the courts:
(i) In case of either withholding of assent or reservation of the bill for the
consideration of the President upon the aid and advice of the State
Council of Ministers, the Governor is expected to take such an action
forthwith subject to a maximum period of one-month;
(ii) In case of withholding of assent contrary to the advice of the State
Council of Ministers, the Governor must return the bill together with
a message within a maximum period of three-months;
(iii) In case of reservation of bills for the consideration of the President
contrary to the advice of the State Council of Ministers, the Governor
shall make such reservation within a maximum period of three months;
In case of presentation of bill after reconsideration in accordance
with the first proviso, the Governor must grant assent forthwith,
subject to a maximum period of one-month.
W.P. (C) No. 1239 of 2023 Page 212 of 414


251. Failure to comply with the timelines prescribed above would make the
inaction on part of the Governor amenable to judicial review. We shall also
deal with the necessity of expeditiously disposing of the references under
Article 201 by the President in subsequent parts of this judgment.

iv. Whether the Governor in the exercise of his powers under Article 200
of the Constitution can only act in accordance with the aid and advice
tendered to him by the State Council of Ministers?

252. Significant time was spent during the course of the arguments on the key
issue of the scope of discretion enjoyed by the Governor in exercise of his
powers under Article 200, more particularly, as regards the reservation of
bills for the consideration of the President.


253. Mr. Rohatgi, learned Senior Counsel, submitted that the act of the Governor
amounts to a subversion of the Constitution. He further emphatically
submitted that it indeed amounted to a subversion of the Constitution.

254. He also submitted that there was no discretion available to the Governor
under the scheme of Article 200 of the Constitution and the only exception
to the same was provided in the second proviso to Article 200 itself. In other
words, he contended that the Governor could only reserve a bill against the
W.P. (C) No. 1239 of 2023 Page 213 of 414

advice tendered to him by the Council of Ministers, if the bill was of a
description as provided in the second proviso. He submitted that in all other
cases, the reservation of a bill for the consideration of the President had to
take place strictly in accordance with the advice of the Council of Ministers.

255. This argument was also endorsed by Dr. Singhvi, who added that the
observations made in B.K. Pavitra (supra) as regards the discretion of the
Governor under Article 200 of the Constitution have to be understood in the
context of the reservation taking place on the aid and advice of the Council
of Ministers.


256. Mr. Dwivedi, placing reliance on the deletion of the expression “ in his
discretion ” from both the substantive part of Article 200 as well the first
proviso by the Constituent Assembly, proposed an even stricter
interpretation of Article 200. He argued that the deletion of the expression
“ in his discretion ” indicated that the intention of the framers of the
Constitution was crystal clear that the Governor should have no semblance
of discretion while exercising his powers under Article 200 and he should
act in accordance with the advice rendered by the Council of Ministers. He
further submitted that it is not just reservation of the bills for the
consideration of the President, but the grant of assent, as well as the decision
to send the bill back to the State legislature together with a message upon
W.P. (C) No. 1239 of 2023 Page 214 of 414

the withholding of assent, which must be taken strictly in accordance with
the advice of the Council of Ministers.


257. The Attorney General, per contra , argued that while exercising his powers
under Article 200, the Governor is discharging an important constitutional
obligation, and even if he does not exercise individual discretion, he may
still act against the aid and advice of the Council of Ministers if he is so
required to, in the discharge of his constitutional duties.


258. An answer to the aforesaid question cannot be arrived at without first
answering the following sub-questions:
a. How has the office of the Governor been envisaged by the
constitutional scheme? In what manner does he play a dual role in
the federal polity of the country?
b. Whether the Governor enjoys a certain degree of discretion in
discharge of his duties under the Constitution? What is the source of
such discretion?
c. Does the deletion of the expression “ in his discretion ” from Article
175 of the Draft Constitution imply that the Governor has no
discretion available in the exercise of his powers under Article 200?


W.P. (C) No. 1239 of 2023 Page 215 of 414

a. The Office of the Governor

259. With the enactment of the Government of India Act, 1858, the
administration of India transitioned from the East India Company to the
British Crown, bringing about a new administrative framework wherein the
Governor, as an agent of the Crown, operated under the general supervision
of the Governor-General. While this structure prevailed, the Montagu-
Chelmsford Reforms of 1919, which culminated into the GoI Act, 1919,
marked the early stirrings of responsible government, albeit in a nascent
form. Despite this shift, the Governor remained central to the provincial
administration, continuing to wield significant authority.

260. The GoI Act, 1935, ushered in the era of provincial autonomy and formally
required the Governor to act on the advice of the Ministers who were
accountable to the provincial legislature by abolishing the system of dyarchy
at the provincial level, while introducing it at the central level. However, the
Act also conferred upon the Governor certain special responsibilities, such
as maintaining peace and tranquility within the province and safeguarding
minority interests. These responsibilities necessitated the exercise of
discretion by the Governor in specific matters. Further, the autonomy of the
Governor in such cases remained subject to the general superintendence and
W.P. (C) No. 1239 of 2023 Page 216 of 414

control of the Governor-General, ensuring oversight over the exercise of his
individual judgment.

261. The declaration of Independence brought about a fundamental
transformation in the role of the Governor. Until the Constitution came into
effect, the provisions of the GoI Act, 1935, as modified by the India
(Provisional Constitution) Order, 1947 (for short, the “ Adaptation Order ”),
governed the administration of the country. Significantly, the Adaptation
Order omitted the expressions ‘in his discretion’, ‘acting in his discretion’,
and ‘exercising his individual judgment’ from the Act, signaling a departure
from the colonial framework.


262. One of the key decisions that the framers of the Constitution had to take was
to decide the mode of selection of the Governor - whether he should be
elected by way of a direct election, or selected from a panel of names
suggested by the State legislature, or nominated by the President. While in
the early days, the Constituent Assembly leaned towards having an elected
Governor, as the framing of the Constitution neared its conclusion, there was
increasing support in favour of having a Governor nominated by the
President. Jawaharlal Nehru attributed this shift of opinion to the bitter
experience of partition, which, according to him, opened the eyes of the
Constituent Assembly to the dangers of separatism and the need for having
W.P. (C) No. 1239 of 2023 Page 217 of 414

a political structure which focused more on the character of the nation as a
Union of States rather than a federation.

b. Constituent Assembly Debates on the mode of Selection of the
Governor


263. The speeches made by some of the members of the Constituent Assembly
on Article 155 of the Constitution broadly encapsulate the ideas which were
debated and rejected before nomination was selected as the mode of
appointment for the Governor.


264. Speaking in favour of appointment of Governors by Presidential nomination,
Shri. H.V. Kamath was of the opinion that the concept of an elected
Governor would undermine the structure of the country as a Union of States,
since a Governor elected directly by the people on the basis of adult suffrage
would place more emphasis on India being a federation. However, according
to him, “ the emphasis today is more upon the Union pattern of our State
13
than upon its Federal aspect ” . He believed that an elected Governor, being
a partisan figure, would inevitably clash with the Chief Minister, thereby
disrupting the functioning of a cabinet-style government. According to him,
the role of a constitutional head should be impartial and symbolic, and the
nomination system was better suited to uphold these principles. He further

13
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elaborated on the potential tussle that would ensue between an elected
Governor and the Chief Minister of the State as follows:
“[...] If the Governor were to be elected by the direct vote of
all voters in a province he is very likely to be a party-man
with strong views of his own, and considering that he will be
elected by the whole province—by the entire adult population
of the province— he will think that he is a far superior man
and a far more powerful man that the Chief Minister or
Premier of the State who will be returned from one
constituency only, but because he happens to be the leader of
the majority party, he will be nominated Premier by the
Governor. There will be two conflicting authorities within the
State : one is the Premier, whom, under this Constitution
which we are considering today, we have invested with
executive authority so far as the State is concerned, and the
other is the Governor, who, though the Constitution does not
confer on him very substantial powers and functions, will
arrogate much to himself, because he will say that “I have
been elected by the people of the whole province and as such
I am persona gratia with the people and not the Chief
Minister”. Therefore, there will be in the administration of
the province at every turn—if not at every turn, then very
often—points of conflicts or friction between the elected
Governor and the elected Chief Minister. Therefore, I think
we have done very wisely in deleting or in doing away with
14
the system of election for the Provincial Governor.”


265. Shri. Hukam Singh, opting for the middle path, acknowledged the
difficulties inherent in both pure election and pure nomination for the
purpose of appointment of Governors. While agreeing with Shri. H.V.
Kamath on the drawbacks of an elected Governor, such as the potential for

14
8, C ONSTITUENT A SSEMB . D EB ., (May 30, 1949) 428-429.
W.P. (C) No. 1239 of 2023 Page 219 of 414

conflict with the Chief Minister and the high costs involved in conducting
elections, he proposed a balanced alternative, suggesting that a panel of
candidates be nominated by the State legislature and a Governor be chosen
from the said panel. This method, while allowing for some discretion would
also ensure public accountability since the merits of those individuals who
had been recommended in the panel would be publicly available and if the
right person was not chosen, then the selection would also be criticized
publicly. In his view, this approach would reduce favoritism, enhance
transparency, and provide a safeguard against the abuse of power, striking a
middle ground between the extremes of election and direct nomination.


266. Shri. Rohini Kumar Chaudhari opposed the nomination of Governors,
cautioning that a Centre-appointed Governor belonging to a different
political party than the provincial government could lead to discord and
undermine provincial autonomy. The friction that would result from
adopting a system wherein Governors are elected would also exist,
according to him, when a Governor is nominated, since the nominee of the
President would not work in harmonious tandem with the Ministry of the
State which belongs to a different political party than the one which enjoys
power at the Centre. He argued that electing Governors would ensure that
they are more attuned to the needs of all communities, including
marginalized groups like tribal populations in States where the Governor
W.P. (C) No. 1239 of 2023 Page 220 of 414

would have an even more important role to play. He criticized the reliance
on British precedents and advocated for a more democratic process, such as
election or selection from a panel, to reflect the will of the people and to also
safeguard provincial interests.

267. Shri. Alladi Krishnaswami Ayyar was of the view that since the Governor is
merely a constitutional head of the province and the real executive power
had been vested in a ministry responsible to the Lower House of the different
States, it seemed rather unnecessary, under such circumstances, to adopt the
method of election based on universal suffrage for the appointment of the
Governors. The nomination of Governors by the President would, in his
opinion, mitigate constitutional conflicts and foster harmonious relations
between the Governor and the provincial Cabinet. He argued that an elected
Governor, deriving authority from universal suffrage, might assert
dominance over the Cabinet, leading to significant constitutional risks. He
specifically remarked that, “ In the normal working of the Government also
there is danger of a clash between the Minister and the Governor, whereas the
whole basis of the constitutional structure we are erecting depends upon the
harmony between the legislature and the executive, and between the executive
15
and the formal head of the Government ”. Drawing inspiration from the

15
8, C ONSTITUENT A SSEMB . D EB , (May 30, 1949) 431.
W.P. (C) No. 1239 of 2023 Page 221 of 414

Canadian model, he suggested that the President’s appointment of
Governors, guided by the advice of the provincial Cabinet, would ensure
stability and sound governance. Furthermore, according to him, “ Nowhere
does the system of election of the Governor exist where the Institution of
16
responsible government is the main feature of the Constitution ”. He believed
that this system would better serve the interests of the provinces and the
nation as a whole.

268. It was his belief that while the method of nomination was the most
appropriate one, a convention of appointing Governors in consultation with
the State government would grow. This, when read with the other
discussions which took place in the Constituent Assembly, indicate that the
framers of the Constitution reposed trust that the Governor would not be a
cipher of the Central government, would be a person above party politics
and would not attempt to override the State government with his actions. He
also supported the idea of having nominated Governors on the ground that
the intervention of the Governor would be required only in extraordinary
situations, and an elected Governor may come in conflict with the provincial
Cabinet by trying to override their decisions. His words are reproduced
below:

16
8, C ONSTITUENT A SSEMB . D EB ., (May 30, 1949) 431.
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“I see no objection to the appointment of the Governor being
left to the President of the Union who has necessarily to act
on the advice of the Prime Minister and his Cabinet. A
convention, of consulting the provincial Cabinet might easily
grow up. Such a convention, as the House is aware, has
grown up in the appointment of Governors in Canada. In
Australia too, though under a different Constitution, a similar
convention has grown up and the Governor of a State is
appointed on the advice of the provincial Cabinet. […] There
is another aspect also which the House might take into
consideration. In our Constitution we must try every method
by which harmony could be secured between the Centre and
the provinces. If you have a person who is not elected by the
province or the State but you have a person appointed by the
President of the Union with the consent, I take it, of the
provincial Cabinet, you will add a close link between the
Centre and the provinces and a clash between the provinces
and the Centre will be avoided which will otherwise
occasionally result. Then there is another point. It is said that
the Governor may occasionally have to use his extraordinary
powers. This point is more in favour of nomination rather
than in favour of election. If the person who is elected on the
basis of universal suffrage is to come into clash with the
provincial Cabinet and if he is to set himself above the
provincial Cabinet, there will be a greater constitutional
danger. Even if circumstances arise when intervention by the
Governor is necessary it will be only on extraordinary
occasions. Even for that intervention a person who is
nominated or appointed by the President with the
concurrence of the provincial Cabinet is likely to take far
greater care than a person who is elected by the people. On
the whole, in the interest of harmony, in the interests of good
working, in the interests of sounder relations between the
provincial Cabinet and the Governor, it will be much better
if we adopt the Canadian model and have the Governors
appointed by the President with the convention growing up
W.P. (C) No. 1239 of 2023 Page 223 of 414

that the Cabinet at the Centre would also be guided by the
advice of the provincial Cabinet.”

(Emphasis supplied)

269. Shri. P.S. Deshmukh was of the opinion that there exist a few fundamental
considerations which have to be kept in mind while discussing the
appointment of the Governor. The first of these fundamental considerations
was that, “ if we decide that the Governor should be elected by the province
on the basis of adult franchise, then it follows logically that he should be a
real executive authority. On the other hand, if you want him to be mere
figurehead, if you want him to have exactly the same position as he has today
under the 1935 Act and which is exactly the position which is assigned to
him under the Draft Constitution, you cannot but have him appointed by the
17
President .” . In light of this, he buttressed his view that Governors must be
nominated and not elected. Regarding the concern that adopting a system of
nominating the Governor would give undue power to the Prime Minister and
the President, he opined that the Prime Minister would also be a popular
Prime Minister and that he can only be there as long as he has the support of
the Parliament elected by the people at large. Therefore, his view was that
we must not hesitate in giving powers of patronage to the Prime Minister or
the President. He also expressed concerns about the potential discord

17
8, C ONSTITUENT A SSEMB . D EB ., (May 30, 1949) 433.
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between an elected Governor and the Chief Minister or Premier, which could
disrupt governance. Apart from the very real possibility of conflicts between
the elected Governor and the Chief Minister which necessitated appointment
via nomination, he argued, on the other hand that, if there was no conflict
and there was perfect agreement or collusion between the Governor and the
Chief Minister, they could agree in defying the Centre altogether and that
would put the Centre in a precarious position where they would be
completely blocked out from the States. Therefore, he remarked that, “ But
apart from the conflict, if there is no conflict and there is perfect agreement,
18
if these two gentlemen set the Centre at naught, what will be the position? ” .
Hence, in his opinion, the appointment of Governors by the President would
maintain a balance of power and ensure some degree of Central influence
over provincial matters. He further suggested that Governors should serve
at the pleasure of the President, thereby eliminating the need for
impeachment provisions and also reinforcing the oversight of the Centre.

270. Shri. Hriday Nath Kunzru highlighted the potential for friction between
Governors and their Cabinets, specifically with reference to Article 175 of
the Draft Constitution, which has now been adopted as Article 200. By
drawing comparisons to the Canadian model, he argued that empowering

18
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the President to disallow provincial bills directly by overriding the assent of
the Governor within a certain prescribed period of time from the date of such
assent, rather than relying on the Governors as intermediaries who refer the
bill for the consideration of the President, would centralize responsibility
with the Central Executive and reduce conflicts at the provincial level. In his
view, this approach would align with the principles of responsible
government and ensure smoother governance.


271. Pandit Jawaharlal Nehru emphasized the need to foster unity and avoid
separatist tendencies within the nation. He believed that an elected Governor
could exacerbate provincial divisions and weaken ties with the Centre. In his
opinion, “ Nevertheless a certain convention and practice helps or hinders
the growth of separatist tendencies. I feel that if we have an elected
Governor that would to some extent encourage that separatist provincial
tendency more than otherwise. There will be far fewer common links with
19
the Centre. ” He argued that duplicating the electoral process for the office
of Governor would be unnecessary and counterproductive, leading to
conflicts, wastage of resources, and disruptive tendencies. Supporting the
nomination of Governors, he asserted that this approach would align with

19
8, C ONSTITUENT A SSEMB . D EB ., (May 31, 1949) 455.
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the parliamentary system of democracy and strengthen the relationship
between the provinces and the Centre.

c. Constituent Assembly Debates on the Exercise of Discretion by the
Governor

272. The other key question which fell for the consideration of the Constituent
Assembly was whether any discretion would be made available to the
Governor as the constitutional head of the State. Article 163(1) of the
Constitution, which describes the nature of such discretionary powers, reads
as follows:
“(1) There shall be a Council of Ministers with the Chief
Minister at 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.”


273. To understand the true import and the scope of this discretion which exists
with the Governor, it would be apposite for us to look into the Constituent
Assembly debates pertaining to this Article in some detail. Article 163 which
provides for the Council of Ministers to aid and advice the Governor was
earlier numbered as Article 143 under the Draft Constitution. Two
st
amendments were sought to be moved to draft Article 143 on the 1 of July
1949; however, those did not gain the approval of the Constituent Assembly
W.P. (C) No. 1239 of 2023 Page 227 of 414

and the original version of draft Article 143 came to be later adopted as
Article 163 as we see it today.

274. Of the two amendments, one of which was moved by Shri. H.V. Kamath
sought to delete the expression, “ except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion ”. Shri. H.V. Kamath was of the opinion that the draft Article had
been blindly copied from the GoI Act, 1935, without any mature
consideration. He further remarked that, “ There is no strong or valid reason
for giving the Governor more authority either in his discretion or otherwise
vis-a-vis his ministers, than has been given to the President in relation to his
20
ministers ” . Investing such wide discretionary powers on the Governor was
all the more problematic, according to him, since Governors are nominated
to their positions and not elected. No departure from the principles of a
constitutional government must be favored except for reasons of emergency
and therefore, he advocated for these discretionary powers to be done away
with.


275. However, Shri. T. T. Krishnamachari pointed out that there existed specific
provisions under the Draft Constitution wherein the Governor was in fact
empowered to act in his discretion, irrespective of the advice tendered by his

20
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 489.
W.P. (C) No. 1239 of 2023 Page 228 of 414

Council of Ministers. Therefore, according to him, there were two ways of
drafting which would capture the aforesaid underlying idea: One, would be
to make a mention of this exception under draft Article 143 itself and
enumerate the specific scenarios where the Governor would be able to
exercise his discretion in the subsequent relevant articles or; Two , would be
to leave out any mention of this discretionary power under draft Article 143
and only state it in the appropriate article that will follow. In the case of draft
Article 143, according to him, it was only that the former method had been
followed. Therefore, the general proposition or the default rule would be that
“ the Governor has normally to act on the advice of his Ministers except in
so far as the exercise of his discretions covered by those Articles in the
Constitution in which he is specifically empowered to act in his
21
discretion .”


276. As an illustration, Shri. T.T. Krishnamachari referred to draft Article 188
which related to the proclamation of Emergency in States by the Governor
under his discretion. It was his opinion that if such a discretionary power can
be given under draft Article 188, there is no harm in the mention of
discretion under draft Article 143 either. He understood the scheme of the
draft Constitution to mean that unless there is a specific mention of

21
8, C ONSTITUENT A SSEMB . D EB , (Jun. 1, 1949) 491.
W.P. (C) No. 1239 of 2023 Page 229 of 414

discretion under any subsequent Article, the discretionary power mentioned
under draft Article 143 cannot at all be exercised.


277. Shri. Brajeshwar Prasad was not in favor of the amendment that was put
forth since he was of the opinion that the Governor should be vested not only
with the power to act in his discretion but also with the power to act in his
individual judgement. He was of the view that there was a dearth of
leadership in the provinces wherein competent men were not available and
unless the Governor is vested with large powers, it would be difficult to
effect any improvement in the provincial administration. He went to the
extent of saying that though such a procedure may be considered as
undemocratic, it would be in the interest of the country. He remarked that,
“ I cannot allow democracy to jeopardize the vital interests of the country
[…] The masses who ought to be the rulers of this land are down-trodden
and exploited in all ways. Under these circumstances there is no way left
open but for the Government of India to take the Provincial administrations
22
in its own hands ” . In his opinion, federalism could not succeed in a country
which was passing through a transitory period and therefore, he subscribed
to the view that power must be vested at the Centre and as a natural corollary,
the Governor must be able to act in his discretion.



22
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 492.
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278. Shri. Mahavir Tyagi was also in agreement with the view that the Governor
must be granted discretion. In his opinion, the State must be kept linked
together with the Centre and the Governor would be the agent who guards
the Central policy in the provinces/States. There would be certain subject-
matters which affect the whole body politic and the provinces/States cannot
be left free of the policy at the Centre. Since the policy which is evoked in
the Centre must be followed by all the States, and if the Governors were to
be in the hands of the provincial Ministers, then there will be various policies
in various provinces and ministers of various types having different party
labels and programmes would push their own agenda. Therefore, it was his
view that, “ The Governor being the agency of the Centre would be the only
23
guarantee to integrate the various provinces/States ” . According to him,
this is why the Governor’s discretionary powers should not be interfered
with. He went on to remark that democratic trends are like a wild beast and
that it goes by the whims and fancies of the parties and the masses. There
must be some machinery which would keep this wild beast under control. It
is in such a reality that the Governor exercising his discretion acts as a
guardian of the Central policy on one side and the Constitution on the other.



23
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 495.
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279. Shri. B.M. Gupta was of the view that if certain powers had to be given to
the Governor, our endeavor must be to restrict them as far as possible so that
the Governor’s position as a constitutional head may be maintained.


280. Shri. Alladi Krishnaswami Ayyar echoed the stance taken by Shri T.T.
Krishnamachari. He stated that, in the first place, a general principle under
Article 143 is laid down, namely, the principle of ministerial responsibility
that the Governor in the various spheres of executive activity should
normally act on the advice of his ministers. Then, the Article goes on to
carve out an exception as regards the matters under which the Governor is
required to exercise certain functions under his own discretion. Therefore, it
was his conclusion that as long as there are articles under the Constitution
which enable the Governor to act in his discretion, the draft Article 143 as it
was framed was perfectly in order. In certain circumstances, this exercise of
discretion may be to override the Cabinet or to refer to the President. If later
on, the Constituent Assembly were to arrive at the conclusion that those
subsequent Articles which enable the Governor to act in his discretion in
specific cases must be deleted, it would be open to revise draft Article 143.
But as long as there are Articles occurring later in the Constitution which
permit the Governor to act in his discretion and not on ministerial
responsibility, the present draft Article 143 was drafted rightly.
W.P. (C) No. 1239 of 2023 Page 232 of 414



281. The only other question, in his opinion, was to see whether the Constituent
Assembly had to first make a provision under draft Article 143 that the
Governor shall mandatorily act on ministerial responsibility and then go on
to provide “ Notwithstanding anything contained in Article 143, [...] he can
do this ” or that “ Notwithstanding anything contained in Article 143, he can
act in his discretion ” in the subsequent relevant Articles. However, he
favored the method of drafting that had already been adopted i.e., to provide
in draft Article 143 itself that the Governor shall always act on ministerial
responsibility excepting in particular or specific cases where he is
empowered to act in his discretion. If, of course, the Constituent Assembly
came to the conclusion that in no case the Governor shall act in his
discretion, and that he shall in every case act only on ministerial
responsibility, then there will be a consequential change to this Article.

282. Pandit Thakur Das Bhargava adopted the notion that the Governor “ shall be
a guide, philosopher and friend of the Ministry as well as the people in
general, so that he will exercise certain functions some of which will be in
the nature of unwritten conventions and some will be such as will be
24
expressly conferred by this Constitution. ” The Governor’s role would

24
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 497.
W.P. (C) No. 1239 of 2023 Page 233 of 414

transcend party politics and he would look at the Minister and the State
government from a detached standpoint. He would also be able to influence
the ministers and members of the legislature in such a manner that the
administration would run smoothly. In such a circumstance, to say that he is
merely a dummy, an automaton or a dignitary without powers would be
gravely wrong. According to his conception of a constitutional Governor,
the Governor would have to accept the advice of his ministers in many
matters but there may also exist many other matters in which such an advice
will either be unavailable or wherein he will not be bound to accept that
advice. Another illustration, according to him, of when the Governor would
act in his discretion would be under draft Article 147 (Article 167 as it stands
today) where the Governor can exercise his power of calling for certain
information from the Chief Minister. Under this Article, the Governor is
competent to ask the Chief Minister to place any matter before the Council
of Ministers which only one minister might have decided. When he calls for
such information, he will be acting in the exercise of his discretion and may
call for any kind of information with a view to control and restrain the
ministry from undertaking irresponsible acts. Therefore, he remarked that,
“ In my opinion taking the Governor as he is conceived to be under the
W.P. (C) No. 1239 of 2023 Page 234 of 414

Constitution, he will exercise very important functions and therefore it is
25
very necessary to retain the words relating to his discretion in article 143 ” .


283. Shri. Rohini Kumar Chaudhuri put forth the alternate view that it is always
better to be governed by the will of the people than to be governed by the
will of a single person who could act in his discretion. He remarked that, “ If
this Governor is given the power to act in his discretion there is no power
26
on earth to prevent him from doing so. He can be a veritable King Stork. ” .
Furthermore, the draft Article 143 itself states that wherever the Governor
thinks that he is acting in his discretion, he cannot be questioned. According
to him, in this day and age, we must not countenance such a state of affairs.


284. While concluding the debate on draft Article 143, Dr. B. R. Ambedkar
elaborated that the main and crucial question under this draft Article was
whether the Governor must have certain discretionary powers or not. During
the course of the debate, it was pointed out that the retention of discretionary
powers in the Governor was contrary to responsible government in the
States/provinces. It was also stated that the same mimicked the GoI Act,
1935, which was largely assailed as being undemocratic. However, Dr. B.
R. Ambedkar was of the undoubted view that “ the retention in or the vesting

25
Ibid .
26
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 499.
W.P. (C) No. 1239 of 2023 Page 235 of 414

the Governor with certain discretionary powers is in no sense contrary to or
27
in no sense a negation of responsible government. ” He cited Section 55 of
the Canadian Constitution which read as follows:
“Section 55. –
Where a Bill passed by the House of Parliament is presented
to the Governor-General for the Queen’s assent, he shall,
according to his discretion, and subject to the provisions of
this Act, either assent thereto in the Queen’s name, or
withhold the Queen’s assent or reserve the Bill for the
signification of the Queen’s pleasure.”


285. He conveyed that the Canadians and the Australians had not found it
necessary to delete these provisions even in this day and age and that they
were quite satisfied with its retention. This, he argued, was demonstrative of
the fact that the grant of such a discretion to the Governor is fully compatible
with a responsible government. If they had felt otherwise, they had the
fullest right to abrogate this provision and would have done so. Therefore,
the existence of a provision vesting a certain amount of discretion in the
Governor cannot be questioned. Furthermore, the draft Article reads that,
“ Except in so far as he is by or under this Constitution ” and not that “ except
wherever he thinks that he should exercise this power of discretion against
28
the wishes or against the advice of the ministers ” . Therefore, the clause is
very limited in nature and would have to be read in conjunction with such

27
ONSTITUENT SSEMB EB
8, C A . D ., (Jun. 1, 1949) 500.
28
8, C ONSTITUENT A SSEMB . D EB ., (Jun. 1, 1949) 501.
W.P. (C) No. 1239 of 2023 Page 236 of 414

other Articles which specifically reserve the discretionary power for the
Governor. It must not be construed as a general clause which gives the
Governor the power to disregard the advice of his ministers in any matter in
which he finds that he could disregard their opinion.


286. Now moving on to how an Article providing for a certain amount of
discretionary powers to the Governor is to be framed, Dr. B. R. Ambedkar
elaborated that there are several ways in which the same can be done. One
way could be to omit the words from draft Article 143 and to add to draft
Articles 175 (presently Article 200), 188, or such other provisions, an
express mention which vests the Governor with discretionary power. Those
Articles would then mention that notwithstanding draft Article 143, the
Governor would have a certain discretionary power. Another way would be
to state in draft Article 143 itself that “ except as provided in draft Articles
175, 188 etc .”, the Governor shall act in accordance with the aid and advice
of the Council of Ministers with the Chief Minister at the head. However,
irrespective of what method of drafting is adopted, the essential point that
would remain is that the Governor’s discretionary power must be
acknowledged in some form.



287. Dr. B. R. Ambedkar was open and quite willing to concede to the position
of those members who were of the view that the last portion of clause (1) of
W.P. (C) No. 1239 of 2023 Page 237 of 414

draft Article 143 must be amended to mention the specific Articles under
which the Governor shall exercise discretion, if at that stage of the
Constituent Assembly debates the provisions intended for such vesting were
already determined. The difficulty was that the Constituent Assembly had
not yet arrived at a stage where they could discuss draft Articles 175 or 188,
nor had they exhausted all the possibilities of other provisions being made
which vested the Governor with discretionary power. If all those
possibilities were already known, draft Article 143 could have been
amended and those specific Articles could have been mentioned or listed
out. Therefore, Dr. B. R. Ambedkar was firmly of the view that no wrong
could be done if the words as they stood in the draft Article were retained.


288. While acknowledging that there exists a material difference between draft
Article 61(1) (Article 74(1) as it stands today) relating to the executive
functions of the President vis-à-vis his Ministers and the draft Article 143,
Dr. B. R. Ambedkar elucidated that it was not the intention of the drafters to
vest any discretionary power upon the President. It is because the provincial
governments are required to work in subordination to the Central
government and in order to ensure that they do act in such subordination, the
Governor would reserve certain matters, thereby giving the President an
opportunity to see that they are broadly in compliance with the policy of the
Central government. Through this mechanism, the President would be able
W.P. (C) No. 1239 of 2023 Page 238 of 414

to ensure that the rules under which the provincial governments are
supposed to act, according to the Constitution, are observed. Therefore, the
vesting of discretionary powers in the post of the Governor was considered
crucial to enable this administrative dialogue between the Centre and the
provinces.

289. What flows from a study of the Constituent Assembly debates concerning
the appointment of the Governor and the scope of his discretionary powers
is that the Governor plays a very crucial role in the political structure of the
country. He is the bridge between the governments at the Central and State
level, the proverbial buckle which ties the States with the Centre. The
Punchhi Commission Report also acknowledged this dual role of the
Governor – one as the custodian of the Constitution in the States and a
representative of the Union, and the other as the constitutional head of the
State and a “ friend, philosopher and guide ” of the State government as well
as the people. The position of the Governor and how it differs from that of
the President were discussed by Dr. B. R. Ambedkar as we have elaborated
in the preceding paragraphs. This difference was also taken note of by
Krishna Iyer J., in his opinion in Samsher Singh (supra) as we will discuss
subsequently. We are of the firm view that this unique position of the
Governor must be kept in mind whenever we set out to interpret any
provision of the Constitution pertaining to any gubernatorial powers or
W.P. (C) No. 1239 of 2023 Page 239 of 414

functions. It is not terminologies like “ federal ”, “ quasi-federal ” or “ unitary ”
which should guide our interpretation of the Constitution. In turn, the words
and ideas of the wise artisans, who carefully weaved the fabric of the
Constitution with threads borrowed from across the world after dying them
in colors uniquely Indian, that we should look towards, when in doubt about
the fundamental ideas of our Constitution. The framers of the Constitution
were cognizant of the fact that vesting the Centre with excessive powers
would not be healthy for the country’s polity. In this regard we may refer to
the observations made by the Sarkaria Commission – “ there is considerable
truth in the saying that undue centralization leads to blood pressure at the
Centre and anemia at the periphery. The inevitable result is morbidity, and
inefficiency. Indeed, centralization does not solve but aggravates the
problems of the people. ” Therefore, the curtailing of the powers of the
Governor under the Constitution as distinguished from the GoI Act, 1935
was done keeping in mind that the Centre does not arrogate all powers to
itself by utilizing the Governor as an intermediary of the Centre at the State.

290. Arijit Pasayat, J., in his dissenting opinion in the decision of this Court in
Rameshwar Prasad (supra) , observed thus on the role of the Governor:
“270. As noted above, the Governor occupies a very
important and significant post in the democratic set-up.
When his credibility is at stake on the basis of allegations that
he was not performing his constitutional obligations or
W.P. (C) No. 1239 of 2023 Page 240 of 414

functions in the correct way, it is a sad reflection on the
person chosen to be the executive head of a particular State.
A person appointed as a Governor should add glory to the
post and not be a symbolic figure oblivious of the duties and
functions which he has and is expected to carry out. It is
interesting to note that the allegations of favouritism and
mala fides are hurled by other parties at the Governors who
belonged or belong to the ruling party at the Centre, and if
the Governor at any point of time was a functionary of the
ruling party. The position does not change when another
party comes to rule at the Centre. It appears to be a matter
of convenience for different political parties to allege mala
fides. This unfortunate situation could have been and can be
avoided by acting on the recommendations of the Sarkaria
Commission and the Committee of the National Commission
to review the working of the Constitution in the matter of
appointment of Governors. This does not appear to be
convenient for the parties because they want to take
advantage of the situation at a particular time and cry foul
when the situation does not seem favourable to them. This is
a sad reflection on the morals of the political parties who do
not lose the opportunity of politicising the post of the
Governor. Sooner the remedial measures are taken would be
better for democracy.

271. It is not deficiency in the Constitution which is
responsible for the situation. It is clearly attributable to the
people who elect (sic appoint) the Governors on
considerations other than merit. It is a disturbing feature, and
if media reports are to be believed, Raj Bhavans are
increasingly turning into extensions of party offices and the
Governors are behaving like party functionaries of a
particular party. This is not healthy for democracy.

272. The key actor in the Centre-State relations is the
Governor who is a bridge between the Union and the State.
The founding fathers deliberately avoided election to the
office of the Governor, as is in vogue in the USA to insulate
W.P. (C) No. 1239 of 2023 Page 241 of 414

the office from linguistic chauvinism. The President has been
empowered to appoint him as executive head of the State
under Article 155 in Part VI, Chapter II. The executive power
of the State is vested in him by Article 154 and exercised by
him with the aid and advice of the Council of Ministers, the
Chief Minister as its head. Under Article 159 the Governor
shall discharge his functions in accordance with the oath to
protect and defend the Constitution and the law. The office of
the Governor, therefore, is intended to ensure protection and
sustenance of the constitutional process of the working of the
Constitution by the elected executive and giving him an
umpire's role. When a Gandhian economist member of the
Constituent Assembly wrote a letter to Gandhiji of his plea
for abolition of the office of the Governor, Gandhiji wrote to
him for its retention; thus, the Governor had been given a
very useful and necessary place in the scheme of the team. He
would be an arbiter when there was a constitutional deadlock
in the State and he would be able to play an impartial role.
There would be administrative mechanism through which the
constitutional crisis would be resolved in the State. The
Governor thus should play an important role. In his dual
undivided capacity as head of the State he should impartially
assist the President. As a constitutional head of the State
Government in times of constitutional crisis he should bring
about sobriety. The link is apparent when we find that Article
356 would be put into operation normally based on the
Governor's report. He should truthfully and with high degree
of constitutional responsibility, in terms of his oath, inform
the President that a situation has arisen in which the
constitutional machinery in the State has failed and the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution, with necessary
detailed factual foundation.”
(Emphasis supplied)


W.P. (C) No. 1239 of 2023 Page 242 of 414

291. A Constitution Bench of this Court in B.P. Singhal v. Union of India
reported in (2010) 6 SCC 331 observed that the Governor is neither an
employee of the Union nor the agent of the party in power. The relevant
observations are extracted below:
“40. It is thus evident that a Governor has a dual role. The
first is that of a constitutional head of the State, bound by the
advice of his Council of Ministers. The second is to function
as a vital link between the Union Government and the State
Government. In certain special/emergent situations, he may
also act as a special representative of the Union Government.
He is required to discharge the functions related to his
different roles harmoniously, assessing the scope and ambit
of each role properly. He is not an employee of the Union
Government, nor the agent of the party in power nor required
to act under the dictates of political parties. There may be
occasions when he may have to be an impartial or neutral
umpire where the views of the Union Government and the
State Governments are in conflict. His peculiar position
arises from the fact that the Indian Constitution is quasi-
federal in character.”
(Emphasis supplied)

292. The question of whether the Governor is bound to act on the aid and advice
of the Council of Ministers in all circumstances fell for the consideration of
this Court in Samsher Singh (supra) . Speaking for the majority, A.N. Ray
C.J., observed as follows:
“20. Articles where the expression “acts in his discretion” is
used in relation to the powers and functions of the Governor
are those which speak of special responsibilities of the
Governor. These articles are 371-A(1)(b), 371-A(1)(d), 371-
A(2)(b) and 371-A(2)(f). There are two paragraphs in the
W.P. (C) No. 1239 of 2023 Page 243 of 414

Sixth Schedule, namely 9(2) and 18(3) where the words “in
his discretion” are used in relation to certain powers of the
Governor. Para 9(2) is in relation to determination of amount
of royalties payable by licensees or lessees prospecting for,
or extracting minerals, to the District Council. Paragraph
18(3) has been omitted with effect from January 21, 1972.

21. The provisions contained in Article 371-A(1)(b) speak of
the special responsibility of the Governor of Nagaland with
respect to law and order in the State of Nagaland and
exercise of his individual judgment as to the action to be
taken. The proviso states that the decision of the Governor in
his discretion shall be final and it shall not be called in
question.

22. Article 371-A(1)(d) states that the Governor shall in his
discretion make rules providing for the composition of the
Regional Council for the Tuensang District.

23. Article 371-A(2)(b) states that for periods mentioned
there the Governor shall in his discretion arrange for an
equitable allocation of certain funds, between the Tuensang
District and the rest of the State.

24. Article 371-A(2)(f) states that the final decision on all
matters relating to the Tuensang District shall be made by
the Governor in his discretion.

xxx xxx xxx

28. Under the Cabinet system of Government as embodied in
our Constitution the Governor is the constitutional or formal
head of the State and he exercises all his powers and
functions conferred on him by or under the Constitution on
the aid and advice of his Council of Ministers save in spheres
where the Governor is required by or under the Constitution
to exercise his functions in his discretion.

W.P. (C) No. 1239 of 2023 Page 244 of 414

xxx xxx xxx

54. The provisions of the Constitution which expressly
require the Governor to exercise his powers in his discretion
are contained in articles to which reference has been made.
To illustrate, Article 239(2) states that where a Governor is
appointed an administrator of an adjoining Union territory
he shall exercise his functions as such administrator
independently of his Council of Ministers. The other articles
which speak of the discretion of the Governor are paragraphs
9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b),
371-A(1)(d) and 371-A(2)(b) and 371-A(2)(f). The discretion
conferred on the Governor means that as the constitutional
or formal head of the State the power is vested in him. In this
connection, reference may be made to Article 356 which
states that the Governor can send a report to the President
that a situation has arisen in which the government of the
State cannot be carried on in accordance with the provisions
of this Constitution. Again Article 200 requires the Governor
to reserve for consideration any Bill which in his opinion if it
became law, would so derogate from the powers of the High
Court as to endanger the position which the High Court is
designed to fill under the Constitution.

55. In making a report under Article 356 the Governor will
be justified in exercising his discretion even against the aid
and advice of his Council of Ministers. The reason is that the
failure of the constitutional machinery may be because of the
conduct of the Council of Ministers. This discretionary power
is given to the Governor to enable him to report to the
President who, however, must act on the advice of his
Council of Ministers in all matters. In this context Article
163(2) is explicable that the decision of the Governor in his
discretion shall be final and the validity shall not be called in
question. The action taken by the President on such a report
is a different matter. The President acts on the advice of his
Council of Ministers. In all other matters where the Governor
acts in his discretion he will act in harmony with his Council
W.P. (C) No. 1239 of 2023 Page 245 of 414

of Ministers. The Constitution does not aim at providing a
parallel administration within the State by allowing the
Governor to go against the advice of the Council of Ministers.

56. Similarly, Article 200 indicates another instance where
the Governor may act irrespective of any advice from the
Council of Ministers. In such matters where the Governor is
to exercise his discretion, he must discharge his duties to the
best of his judgment. The Governor is required to pursue such
courses which are not detrimental to the State.”

(Emphasis supplied)


293. A reading of the observations reproduced above indicates that the Court
identified that the Governor was required to act on his discretion when
performing his functions, inter alia, under Articles 356 and 200 of the
Constitution respectively. However, it is pertinent to note that under Article
200, only the reservation of bills falling under the second proviso was
observed by the Court to be an exercise which must be undertaken by the
Governor independent of the advice of the Council of Ministers.

294. Furthermore, this Court laid down a general rule that the Governor, in the
Cabinet form of government envisaged by the Constitution, acts as a
constitutional head performing all his functions and exercising all his powers
on the aid and advice of the Council of Ministers, except in a limited area.
This limited area of discretion, too, is provided by the Constitution under the
specific provisions wherein such exercise of discretion is permissible. The
W.P. (C) No. 1239 of 2023 Page 246 of 414

Court gave certain illustrative examples where the expression “ acts in his
discretion ” was used and observed that such provisions indicated that a
special responsibility on the Governor has been entrusted upon by the
Constitution.

295. It is pertinent to observe the observations made by the Court in paragraphs
54, 55 and 56 of Samsher Singh (supra) which are reproduced above. In
paragraph 54, while giving illustrations of the provisions where the
Governor is expressly required by the Constitution to act in his discretion,
the Court made reference to Articles 356 and 200 respectively. In the context
of Article 200, the Court observed that the limited area where express
discretion has been conferred upon the Governor falls under the second
proviso. Thereafter, in paragraph 55, the Court elaborated upon the exercise
of discretion by the Governor under Article 356. In paragraph 56, the Court
elaborated upon the exercise of discretion under Article 200 and observed
that Article 200 “ indicates another instance where the Governor may act
irrespective of any advice from the Council of Ministers ”. It is important to
read the observations made in paragraph 56 along with paragraph 54 of the
judgment. A conjoint reading of these two paragraphs, it becomes clear,
without a cavil of doubt, that the second proviso to Article 200 is an instance
under the Constitution where the Governor has been conferred with the
power to act in his discretion and even against the advice of the Council of
W.P. (C) No. 1239 of 2023 Page 247 of 414

Ministers. However, the logical sequitur to this is that under Article 200,
there is no scope for the Governor acting in his discretion other than the
second proviso.

296. Speaking for himself and P.N. Bhagwati J., the redoubtable Krishna Iyer J.,
in Samsher Singh (supra) observed as follows:
“100. The first broad proposition of the appellants is that the
President —and the Governor — are not just constitutional
cousins of the British Queen, but real wielders of power,
bestowed on them expressly by the terms of the text, almost
next of kin to their American counterparts with similar
designations. The issue is so fundamental that its resolution
is necessary to know not only who can declare a
probationer's fitness but who can declare a war in national
defence or proclaim a breakdown of the State constitutional
machinery or assent to a Bill passed by Parliament. For, if
under Article 311 the President must be personally satisfied
for certain small steps he must surely be individually
convinced regarding the far more momentous spectrum of
functions he is called upon to discharge under a big bunch of
other provisions. And this reasoning regarding disposal of
gubernatorial business or discharge of official
responsibilities will equally apply to Governors.

xxx xxx xxx

113. If the ‘inner voice’ of the founding fathers may be any
guide, it is proved beyond reasonable doubt that the
President and, a fortiori, the Governor enjoys nothing more
and nothing less than the status of a constitutional head in a
Cabinet-type Government — a few exceptions and marginal
reservations apart.

W.P. (C) No. 1239 of 2023 Page 248 of 414

xxx xxx xxx

139. Of course, there is some qualitative difference between
the position of the President and the Governor. The former,
under Article 74 has no discretionary powers; the latter too
has none, save in the tiny strips covered by Articles 163(2),
371-A(1)(b) and (d), 371-A(2)(b) and (f), VI Schedule, para
9(2) [and VI Schedule, para 18(3), until omitted recently with
effect from January 21, 1972]. These discretionary powers
exist only where expressly spelt out and even these are not
left to the sweet will of the Governor but are remote-
controlled by the Union Ministry which is answerable to
Parliament for those actions. Again, a minimal area
centering round reports to be despatched under Article 356
may not, in the nature of things, be amenable to Ministerial
advice. The practice of sending periodical reports to the
Union Government is a pre-constitutional one and it is
doubtful if a Governor could or should report behind the back
of his Ministers. For a Centrally appointed constitutional
functionary to keep a dossier on his Ministers or to report
against them or to take up public stances critical of
Government policy settled by the Cabinet or to interfere in
the administration directly — these are unconstitutional faux
pas and run counter to Parliamentary system. In all his
constitutional ‘functions’ it is the Ministers who act; only in
the narrow area specifically marked out for discretionary
exercise by the Constitution, he is untramelled by the State
Ministers' acts and advice. Of course, a limited free-wheeling
is available regarding choice of Chief Minister and dismissal
of the Ministry, as in the English practice adapted to Indian
conditions.

xxx xxx xxx

154. 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
W.P. (C) No. 1239 of 2023 Page 249 of 414

powers only upon and in accordance with the advice of their
Ministers save in a few well-known exceptional situations.
Without being dogmatic or exhaustive, these situations relate
to (a) the choice of Prime Minister (Chief Minister),
restricted though this choice is by the paramount
consideration that he should command a majority in the
House; (b) the dismissal of a Government which has lost its
majority in the House, but refuses to quit office; (c) the
dissolution of the House where an appeal to the country is
necessitous, although in this area the head of State should
avoid getting involved in politics and must be advised by his
Prime Minister (Chief Minister) who will eventually take the
responsibility for the step. We do not examine in detail the
constitutional proprieties in these predicaments except to
utter the caution that even here the action must be compelled
by the peril to democracy and the appeal to the House or to
the country must become blatantly obligatory. We have no
doubt that de Smith's statement [ Constitutional and
Administrative Law — by S.A. De Smith — Peguin Books on
Foundations of Law] 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.”

(Emphasis supplied)
W.P. (C) No. 1239 of 2023 Page 250 of 414


297. Interestingly, as can be seen from the paragraphs reproduced above, while
describing the limited nature of the scope of exercise of discretion by the
President and the Governor, Krishna Iyer, J., referred to an excerpt on how
refusal of royal assent to a bill passed by the Parliament could only be done
on the advice of the Ministers and not on the personal discretion of the
monarch, regardless of how controversial the monarch found the bill to be.
He further observed that the discretionary powers of the Governor existed
only where they were expressly spelt out in the Constitution, and even the
exercise of such discretion was remote-controlled by the Union Ministry.

298. Referring to the decision in Samsher Singh (supra) , Krishna Iyer J., in
Maru Ram v. Union of India reported in (1981) 1 SCC 107, again,
reiterated the position of the President and the Governor as figureheads in
the constitutional scheme. However, he observed that they acted in
accordance with the aid and advice of the Council of Ministers “ save in a
narrow area of power ” and that the “ Governor vis-à-vis his Cabinet is no
higher than the President save in a narrow area which does not include
Article 161 ”, thereby implying that there is a small area of discretion
available with the Governor, which however does not include Article 161.

The relevant observations are reproduced hereinbelow:
“61. [...] It is fundamental to the Westminster system that the
Cabinet rules and the Queen reigns being too deeply rooted
W.P. (C) No. 1239 of 2023 Page 251 of 414

as foundational to our system no serious encounter was met
from the learned Solicitor-General whose sure grasp of
fundamentals did not permit him to controvert the
proposition, that the President and the Governor, be they
ever so high in textual terminology, are but functional
euphemisms promptly acting on and only on the advice of the
Council of Ministers save in a narrow area of power. The
subject is now beyond controversy, this Court having
authoritatively laid down the law in Shamsher Singh
case [Shamsher Singh v. State of Punjab, (1974) 2 SCC 831
: 1974 SCC (L&S) 550 : (1975) 1 SCR 814]. So, we agree,
even without reference to Article 367(1) and Sections 3(8)(b)
and 3(60)(b) of the General Clauses Act, 1897, that, in the
matter of exercise of the powers under Articles 72 and 161,
the two highest dignitaries in our constitutional scheme act
and must act not on their own judgment but in accordance
with the aid and advice of the ministers. Article 74, after the
42nd Amendment silences speculation and obligates
compliance. The Governor vis-à-vis his Cabinet is no higher
than the President save in a narrow area which does not
include Article 161. The constitutional conclusion is that the
Governor is but a shorthand expression for the State
Government and the President is an abbreviation for the
Central Government.”
(Emphasis supplied)


299. A Constitution Bench of this Court while dealing with the issue of
discretionary powers of the Governor in M.P. Special Police (supra) and
explaining the import of Article 163(2) of the Constitution, observed that
even if discretion was not expressly granted upon the Governor by a specific
provision of the Constitution, it was open to him to act in his discretion in
certain exceptional situations where by reason of threat to democratic
W.P. (C) No. 1239 of 2023 Page 252 of 414

principles, he could not act on the advice of the Council of Ministers. The
relevant observations are reproduced hereinbelow:
“8. The question for consideration is whether a Governor
can act in his discretion and against the aid and advice of the
Council of Ministers in a matter of grant of sanction for
prosecution of Ministers for offences under the Prevention of
Corruption Act and/or under the Penal Code, 1860.

xxx xxx xxx

11. Mr Sorabjee submits that even though normally the
Governor acts on the aid and advice of the Council of
Ministers, but there can be cases where the Governor is, by
or under the Constitution, required to exercise his function
or any of them in his discretion. The Constitution of India
expressly provides for contingencies/cases where the
Governor is to act in his discretion. Articles 239(2), 371-
A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2) and 18(3) of
the Sixth Schedule are some of the provisions. However,
merely because the Constitution of India expressly provides,
in some cases, for the Governor to act in his discretion, can
it be inferred that the Governor can so act only where the
Constitution expressly so provides? If that were so then sub-
clause (2) of Article 163 would be redundant. A question
whether a matter is or is not a matter in which the Governor
is required to act in his discretion can only arise in cases
where the Constitution has not expressly provided that the
Governor can act in his discretion. Such a question cannot
arise in respect of a matter where the Constitution expressly
provides that the Governor is to act in his discretion. Article
163(2), therefore, postulates that there can be matters where
the Governor can act in his discretion even though the
Constitution has not expressly so provided.

12. […] Thus, as rightly pointed out by Mr Sorabjee, a seven-
Judge Bench of this Court has already held that the normal
W.P. (C) No. 1239 of 2023 Page 253 of 414

rule is that the Governor acts on the aid and advice of the
Council of Ministers and not independently or contrary to it.
But there are exceptions under which the Governor can act
in his own discretion. Some of the exceptions are as set out
hereinabove. It is, however, clarified that the exceptions
mentioned in the judgment are not exhaustive. It is also
recognised that the concept of the Governor acting in his
discretion or exercising independent judgment is not alien to
the Constitution. It is recognised that there may be situations
where by reason of peril to democracy or democratic
principles, an action may be compelled which from its nature
is not amenable to Ministerial advice. Such a situation may
be where bias is inherent and/or manifest in the advice of the
Council of Ministers.

xxx xxx xxx

19. Article 163 has been extracted above. Undoubtedly, in a
matter of grant of sanction to prosecute, the Governor is
normally required to act on aid and advice of the Council of
Ministers and not in his discretion. However, an exception
may arise whilst considering grant of sanction to prosecute a
Chief Minister or a Minister where as a matter of propriety
the Governor may have to act in his own discretion. Similar
would be the situation if the Council of Ministers disables
itself or disentitles itself.

xxx xxx xxx

32. If, on these facts and circumstances, the Governor cannot
act in his own discretion there would be a complete
breakdown of the rule of law inasmuch as it would then be
open for Governments to refuse sanction in spite of
overwhelming material showing that a prima facie case is
made out. If, in cases where a prima facie case is clearly
made out, sanction to prosecute high functionaries is refused
or withheld, democracy itself will be at stake. It would then
lead to a situation where people in power may break the law
W.P. (C) No. 1239 of 2023 Page 254 of 414

with impunity safe in the knowledge that they will not be
prosecuted as the requisite sanction will not be granted.”

(Emphasis supplied)


300. The decision in this case was a step forward from the general rule laid down
by the larger Bench in Samsher Singh (supra) . However, what is essential
to note is that the Court did not dilute the general rule laid down earlier, and
only allowed for a very limited scope of discretion for the Governor in
certain exceptional situations in light of Article 163(2). The extraordinary
nature of the exceptional situations envisaged by the Court can be gauged
from the use of the expressions “ peril to democracy or democratic
principles ”, “ bias is inherent and/or manifest in the advice of the Council of
Ministers ”, “ Council of Ministers disables itself or disentitles itself ” and
“ there would be a complete breakdown of the rule of law ”. Whenever the
situation arises for the Governor to exercise discretion in discharge of a
function which is ordinarily to be exercised upon the aid and advice of the
Council of Ministers, it is these exceptional circumstances that the Governor
must take into account before rejecting the aid and advice tendered to him.
Courts too, when judicially reviewing the exercise of discretion by the
Governor in such cases, must be guided by the situations as described in the
decision in M.P. Special Police (supra) . Article 200, being a provision
where the Governor must act on ministerial advice as a general rule, the
W.P. (C) No. 1239 of 2023 Page 255 of 414

aforesaid exposition would squarely apply to this provision as well, thereby
severely curtailing any possibility of exercise of discretion by the Governor.

301. Another Constitution Bench of this Court in Nabam Rebia (supra) had the
occasion to discuss at length the nature of the position of the Governor in
the constitutional scheme, along with the source and scope of his
discretionary powers. The Court held that the discretionary powers of the
Governor could be traced back to Article 163(1), that is, he could act in
exercise of his discretionary powers only where expressly provided for
under the Constitution, or where the interpretation of a constitutional
provision could not be construed otherwise, or in cases where this Court has
declared the exercise of powers to be done by the Governor in his discretion
notwithstanding ministerial advice. Further, the Court held that the finality
expressed under Article 163(2) was only in respect of those situations where
the exercise of discretion by the Governor was permissible under the
framework of Article 163(1) and any exercise of discretion beyond the
jurisdiction provided by the Constitution would be subject to judicial review.
The relevant observations are reproduced hereinbelow:

“147.1 [...] Article 163 further warrants that the Governor
would exercise his functions, on the aid and advice of the
Council of Ministers with the Chief Minister as the head. The
above edict is not applicable, in situations where the
Governor is expressly required to exercise his functions,
W.P. (C) No. 1239 of 2023 Page 256 of 414

“[...] by or under this Constitution…”, “… in his discretion”.
The question that will need determination at our hands is,
whether the underlying cardinal principle, with reference to
the discretionary power of the Governor, is to be traced from
Article 163(1) or from Article 163(2). [...] All in all, it is
apparent, that the Governor is not assigned any significant
role in the executive functioning of the State.

147.2. [...] Insofar as the legislative process is concerned, the
only function vested with the Governor is expressed through
Article 200 which, inter alia, provides that a Bill passed by
the State Legislature, is to be presented to the Governor for
his assent. And its ancillary provision, namely, Article 201
wherein a Bill passed by the State Legislature and presented
to the Governor, may be reserved by the Governor for
consideration by the President. [...] All in all, it is apparent
that the Governor is not assigned any significant role even in
the legislative functioning of the State.

148. The above position leaves no room for any doubt that
the Governor cannot be seen to have such powers and
functions, as would assign to him a dominating position, over
the State Executive and the State Legislature. The
interpretation placed on Article 163(2), on behalf of the
respondents, has just that effect, because of the following
contentions advanced on behalf of the respondents. Firstly,
whenever a question arises, whether in discharging a
particular function, the Governor can or cannot act in his
own discretion. According to the respondents, the discretion
of the Governor, on the above question, is final. Secondly,
since the provision itself postulates, that “… the decision of
the Governor in his discretion shall be final, and the validity
of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have
acted in his discretion …”, according to the respondents,
makes the Governor's orders based on his own discretion,
immune from judicial review. Accepting the above position,
will convert the Governor into an all-pervading super-
W.P. (C) No. 1239 of 2023 Page 257 of 414

constitutional authority. This position is not acceptable
because an examination of the executive and legislative
functions of the Governor, from the surrounding provisions
of the Constitution clearly brings out that the Governor has
not been assigned any significant role either in the executive
or the legislative functioning of the State. The position
adopted on behalf of the appellants, on the other hand,
augurs well in an overall harmonious construction of the
provisions of the Constitution. Even on a cursory
examination of the relevant provisions of the Constitution, we
are inclined to accept the contention advanced on behalf of
the appellants.

149. In our considered view, a clear answer to the query
raised above, can inter alia emerge from the Constituent
Assembly Debates with reference to draft Article 143, which
eventually came to be renumbered as Article 163 in the
Constitution. It would be relevant to record that from the
queries raised by H.V. Kamath, T.T. Krishnamachari, Alladi
Krishnaswami Ayyar, and from the response to the same by
Dr B.R. Ambedkar, it clearly emerges that the general
principle with reference to the scope and extent of the
discretionary power of the Governor, is provided for through
Article 163(1). It also becomes apparent from Article 163(1),
which provides for the principle of Ministerial Responsibility.
The crucial position that gets clarified from a perusal of the
Constituent Assembly Debates, arises from the answer to the
query, whether the Governor should have any discretionary
power at all? The Debates expound, that the retention of
discretionary power with the Governor was not, in any way,
contrary to the power of responsible Government, nor should
the same be assumed as a power akin to that vested with a
Governor under the Government of India Act, 1935. And from
that, emerges the answer that the retention and vesting of
discretionary powers with the Governor, should not be taken
in the sense of being contrary to, or having the effect of
negating the powers of responsible Government.
Significantly, with reference to the Governor's discretionary
W.P. (C) No. 1239 of 2023 Page 258 of 414

powers, it was emphasised by Dr B.R. Ambedkar, that: (CAD
Vol. 8, p. 501)

“The Hon'ble Dr B.R. Ambedkar.— … The clause
is a very limited clause; it says: ‘except insofar as
he is by or under this Constitution’. Therefore,
Article 163 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 advice
of his Ministers, in any matter in which he finds he
ought to disregard. There, I think, lies the fallacy
of the argument of my Hon'ble friend ….”

In our considered view, the Constituent Assembly Debates
leave no room for any doubt that the Framers of the
Constitution desired to embody the general and basic
principle, describing the extent and scope of the discretionary
power of the Governor, in clause (1) of Article 163, and not
in clause (2) thereof, as suggested by the learned counsel for

the respondents.

xxx xxx xxx

154. We are, therefore, of the considered view that insofar as
the exercise of discretionary powers vested with the
Governor is concerned, the same is limited to situations,
wherein a constitutional provision expressly so provides that
the Governor should act in his own discretion. Additionally,
a Governor can exercise his functions in his own discretion,
in situations where an interpretation of the constitutional
provision concerned, could not be construed otherwise. We,
therefore, hereby reject the contention advanced on behalf of
the respondents, that the Governor has the freedom to
determine when and in which situation, he should take a
decision in his own discretion, without the aid and advice of
the Chief Minister and his Council of Ministers. We
accordingly, also turn down the contention, that whenever
W.P. (C) No. 1239 of 2023 Page 259 of 414

the Governor in the discharge of his functions, takes a
decision in his own discretion, the same would be final and
binding, and beyond the purview of judicial review. We are
of the view that finality expressed in Article 163(2) would
apply to functions exercised by the Governor in his own
discretion, as are permissible within the framework of Article
163(1), and additionally, in situations where the clear intent
underlying a constitutional provision, so requires i.e. where
the exercise of such power on the aid and advice, would run
contrary to the constitutional scheme, or would be

contradictory in terms.

155. We may, therefore, summarise our conclusions as
under:

155.1. Firstly, the measure of discretionary power of the
Governor, is limited to the scope postulated therefor, under
Article 163(1).

155.2. Secondly, under Article 163(1) the discretionary
power of the Governor extends to situations, wherein a
constitutional provision expressly requires the Governor to

act in his own discretion.

155.3. Thirdly, the Governor can additionally discharge
functions in his own discretion, where such intent emerges
from a legitimate interpretation of the provision concerned,

and the same cannot be construed otherwise.

155.4. Fourthly, in situations where this Court has declared
that the Governor should exercise the particular function at
his own and without any aid or advice because of the
impermissibility of the other alternative, by reason of conflict
of interest.

155.5. Fifthly, the submission advanced on behalf of the
respondents, that the exercise of discretion under Article
163(2) is final and beyond the scope of judicial review cannot
be accepted. Firstly, because we have rejected the submission
W.P. (C) No. 1239 of 2023 Page 260 of 414

advanced by the respondents, that the scope and extent of
discretion vested with the Governor has to be ascertained
from Article 163(2), on the basis whereof the submission was
canvassed. And secondly, any discretion exercised beyond
the Governor's jurisdictional authority, would certainly be
subject to judicial review.”

(Emphasis supplied)


302. This Court in State of Gujarat v. R.A. Mehta reported in (2013) 3 SCC 1
placing reliance on the decision in B.P. Singhal (supra) observed that the
expression “ required ” appearing under Article 163(1) indicated that it is
only in situations where there is express stipulation or necessary implication
that the Governor can act in his own discretion. The term “ required ” also
indicates an element of compelling necessity. The Court also observed that
Article 200 was one such provision where the Governor is expected to act
upon ministerial advice and not in his discretion. The relevant observations
are reproduced hereinbelow:
“35. However, the power to grant pardon or to remit
sentence (Article 161), the power to make appointments
including that of the Chief Minister (Article 164), the
Advocate General (Article 165), the District Judges (Article
233), the Members of the Public Service Commission (Article
316) are in the category where the Governor is bound to act
on the aid and advice of the Council of Ministers. Likewise,
the power to prorogue either House of Legislature or to
dissolve the Legislative Assembly (Article 174), the right to
address or send messages to the Houses of the Legislature
(Article 175 and Article 176), the power to assent to Bills or
withhold such assent (Article 200), the power to make
W.P. (C) No. 1239 of 2023 Page 261 of 414

recommendations for demands of grants [Article 203(3)],
and the duty to cause to be laid every year the annual budget
(Article 202), the power to promulgate ordinances during
recess of the Legislature (Article 213) also belong to this
species of power. Again, the obligation to make available to
the Election Commission, requisite staff for discharging
functions conferred upon it by Article 324(1) and Article
324(6), the power to nominate a member of the Anglo-Indian
community to the Assembly in certain situations (Article
333), the power to authorise the use of Hindi in proceedings
in the High Court [Article 348(2)], are illustrative of the
functions of the Governor, qua the Governor.

xxx xxx xxx

49. The exceptions carved out in the main clause of Article
163(1), permit the legislature to entrust certain functions to
the Governor to be performed by him, either in his discretion,
or in consultation with other authorities, independent of the
Council of Ministers. The meaning of the words “by or
under” is well settled. The expression “by an Act”, would
mean by virtue of a provision directly enacted in the statute
in question and that which is conceivable from its express
language or by necessary implication therefrom. The words
“under the Act”, would in such context, signify that which
may not directly be found in the statute itself, but which is
conferred by virtue of powers enabling such action(s) e.g. by
way of laws framed by a subordinate law-making authority
competent to do so under the parent Act. (Vide Indramani
Pyarelal Gupta v. W.R. Natu [AIR 1963 SC 274].)

50. This Court in Rameshwar Prasad (6) v. Union of
India [(2006) 2 SCC 1] held : (SCC p. 82, para 57)

“57. The expression ‘required’ found in Article
163(1) is stated to signify that the Governor can
exercise his discretionary powers only if there is a
W.P. (C) No. 1239 of 2023 Page 262 of 414

compelling necessity to do so. It has been reasoned
that the expression ‘by or under the Constitution’
means that the necessity to exercise such powers
may arise from any express provision of the
Constitution or by necessary implication. The
Sarkaria Commission Report further adds that
such necessity may arise even from rules and
orders made ‘under’ the Constitution.””

(Emphasis supplied)


d. The decision of this Court in B.K. Pavitra (supra) is per incuriam

303. Placing reliance on the aforesaid decision in Nabam Rebia (supra), this
Court in B.K. Pavitra (supra) while dealing with the reservation of bills for
the consideration of the President under Article 200 observed thus:
“66. Where a Bill is not a Money Bill, the Governor may
return the Bill for reconsideration upon which the House or
Houses, as the case may be, will reconsider the desirability
of introducing the amendments which the Governor has
recommended. If the Bill is passed again by the House (or
Houses as the case may be), the Governor cannot thereafter
withhold assent. The second proviso to Article 200 stipulates
that the Governor must not assent to a Bill but necessarily
reserve it for the consideration of the President if the Bill
upon being enacted would derogate from the powers of the
High Court in a manner that endangers its position under the
Constitution. Save and except for Bills falling within the
description contained in the second proviso (where the
Governor must reserve the Bill for consideration of the
President), a discretion is conferred upon the Governor to
follow one of the courses of action enunciated in the
substantive part of Article 200. Aside from Bills which are
W.P. (C) No. 1239 of 2023 Page 263 of 414

covered by the second proviso, where the Governor is obliged
to reserve the Bill for the consideration of the President, the
substantive part of Article 200 does not indicate specifically,
the circumstances in which the Governor may reserve a Bill
for the consideration of the President. The Constitution has
entrusted this discretion to the Governor. The nature and
scope of the discretionary power of the Governor to act
independent of, or, contrary to aid and advice of Council of
Ministers under Article 163 was discussed in Nabam
Rebia [Nabam Rebia and Bamang Felix v. Arunachal
Pradesh Legislative Assembly, (2016) 8 SCC 1] , J.S. Khehar,
J. (as the learned Chief Justice then was) held thus : (SCC p.
159, para 154)

“154. We are, therefore, of the considered view
that insofar as the exercise of discretionary powers
vested with the Governor is concerned, the same is
limited to situations, wherein a constitutional
provision expressly so provides that the Governor
should act in his own discretion. Additionally, a
Governor can exercise his functions in his own
discretion, in situations where an interpretation of
the constitutional provision concerned, could not
be construed otherwise.”

Dipak Misra, J. (as the learned Judge then was), observed
thus : (SCC p. 244, para 375)

“375. [...] The Governor is expected to function in
accordance with the provisions of the Constitution
(and the history behind the enactment of its
provisions), the law and the rules regulating his
functions. It is easy to forget that the Governor is a
constitutional or formal head—nevertheless like
everybody else, he has to play the game in
accordance with the rules of the game—whether it
is in relation to the Executive (aid and advice of the
Council of Ministers) or the Legislature (Rules of
W.P. (C) No. 1239 of 2023 Page 264 of 414

Procedure and Conduct of Business of the
Arunachal Pradesh Legislative Assembly). This is
not to say that the Governor has no powers—he
does, but these too are delineated by the
Constitution either specifically or by necessary
implication.”

67. The Framers carefully eschewed defining the
circumstances in which the Governor may reserve a Bill for
the consideration of the President. By its very nature the
conferment of the power cannot be confined to specific
categories. Exigencies may arise in the working of the
Constitution which justify a recourse to the power of
reserving a Bill for the consideration of the President. They
cannot be foreseen with the vision of a soothsayer. The power
having been conferred upon a constitutional functionary, it is
conditioned by the expectation that it would be exercised
upon careful reflection and for resolving legitimate concerns
in regard to the validity of the legislation. The entrustment of
a constitutional discretion to the Governor is premised on the
trust that the exercise of authority would be governed by
constitutional statesmanship. In a federal structure, the
conferment of this constitutional discretion is not intended to
thwart democratic federalism. The State Legislatures
represent the popular will of those who elect their
representatives. They are the collective embodiments of that
will. The act of reserving a Bill for the assent of the President
must be undertaken upon careful reflection, upon a doubt
being entertained by the Governor about the constitutional
legitimacy of the Bill which has been passed.

xxx xxx xxx

71. These decisions are specifically in the context of Article
254. Article 254(1) postulates inter alia, that in a matter
which is governed by the Concurrent List, a law which has
been enacted by the Legislature of a State shall be void to the
extent of its repugnancy with a law enacted by Parliament.
W.P. (C) No. 1239 of 2023 Page 265 of 414

Clause (2) of Article 254 obviates that consequence where
the law has been reserved for the consideration of the
President and has received assent. Article 254(1) is made
subject to clause (2), thereby emphasising that the assent of
the President will cure a repugnancy of the State law with a
law enacted by Parliament in a matter falling in the
Concurrent List. It is in this context, that the decisions of this
Court hold that the assent of the President should be sought
in relation to a repugnancy with a specific provision
contained in a Parliamentary legislation so as to enable due
consideration by the President of the ground on which assent
has been sought. Article 200 contains the source of the
constitutional power which is conferred upon the Governor
to reserve a Bill for the consideration of the President. Article
254(2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the State Legislature
for consideration of the President in a specified situation —
where it is repugnant to an existing law or to a Parliamentary
legislation on a matter falling in the Concurrent List. The
eventuality which is specified in Article 254(2) does not
exhaust the ambit of the power entrusted to the Governor
under Article 200 to reserve a Bill for the consideration of
the President. Apart from a repugnancy in matters falling in
the Concurrent List between State and Parliamentary
legislation, a Governor may have sound constitutional
reasons to reserve a Bill for the consideration of the
President. Article 200, in its second proviso mandates that a
Bill which derogates from the powers of the High Court must
be reserved for the consideration of the President. Apart from
Bills which fall within the description set out in the second
proviso, the Governor may legitimately refer a Bill for
consideration of the President upon entertaining a legitimate
doubt about the validity of the law. By its very nature, it
would not be possible for this Court to reflect upon the
situations in which the power under Article 200 can be
exercised. This was noticed in the judgment of this Court
in Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar,
W.P. (C) No. 1239 of 2023 Page 266 of 414

(1983) 4 SCC 45 : 1983 SCC (Tax) 248] . Excluding it from
judicial scrutiny, the Court held : (SCC pp. 100-101, para 86)

‘86. [...] There may also be a Bill passed by the
State Legislature where there may be a genuine
doubt about the applicability of any of the
provisions of the Constitution which require the
assent of the President to be given to it in order that
it may be effective as an Act. In such a case, it is
for the Governor to exercise his discretion and to
decide whether he should assent to the Bill or
should reserve it for consideration of the President
to avoid any future complication. Even if it
ultimately turns out that there was no necessity for
the Governor to have reserved a Bill for the
consideration of the President, still he having done
so and obtained the assent of the President, the Act
so passed cannot be held to be unconstitutional on
the ground of want of proper assent. This aspect of
the matter, as the law now stands, is not open to
scrutiny by the courts. In the instant case, the
Finance Bill which ultimately became the Act in
question was a consolidating Act relating to
different subjects and perhaps the Governor felt
that it was necessary to reserve it for the assent of
the President. We have no hesitation in holding
that the assent of the President is not justiciable,
and we cannot spell out any infirmity arising out of
his decision to give such assent.’”

(Emphasis supplied)


304. This Court in B.K. Pavitra (supra) took the view that the Constitution has
entrusted the Governor with the discretion of reserving a bill, presented to
him for assent, for the consideration of the President. It also held that the
W.P. (C) No. 1239 of 2023 Page 267 of 414

exercise of the power of reservation of bills for the consideration of the
President could be done by the Governor contrary to the aid and advice
tendered by the Council of Ministers. The Court observed that such an
important responsibility having been conferred upon a constitutional
functionary, its discharge was expected to be undertaken upon careful
reflection and with statesmanship, and in a manner that does not thwart
democratic federalism. On the nature of bills which may be reserved for the
consideration of the President, the Court held that it was impossible to lay
down with certainty all the situations wherein such a reference may be
warranted.

305. We find ourselves in disagreement with the view taken in B.K. Pavitra
(supra) that the Constitution confers a discretion upon the Governor insofar
as the reservation of bills for the consideration of the President is concerned.
We say so because the removal of the expression “ in his discretion ” from
Section 75 of the GoI Act, 1935 when it was being adapted as Article 200
of the Constitution, clearly indicates that any discretion which was available
to the Governor under the GoI Act, 1935 in respect of reservation of bills
became unavailable with the commencement of the Constitution. The views
expressed by the members of the Constituent Assembly, which are recorded
in the debates that took place on Article 175 of the Draft Constitution, also
W.P. (C) No. 1239 of 2023 Page 268 of 414

29
indicate the same . We are also of the view that the same is also in alignment
with the fundamental tenets of responsible government in a parliamentary
democracy. The only exception to the general principle of the Governor
adhering to the aid and advice tendered by the Council of Ministers can be
traced to Article 163(1) and the second proviso to Article 200.

306. Pertinently, the Court in B.K. Pavitra (supra) failed to take into
consideration the larger Bench decisions in Samsher Singh (supra) and
M.P. Special Police (supra) . As we have discussed above, paragraphs 54 to
56 of the decision in Samsher Singh (supra) make it clear beyond any doubt
that there is no express requirement under the Constitution for the exercise
of discretion by the Governor in discharge of his functions under Article
200, except to the limited extent of the second proviso where the expression
“ in his opinion ” is employed for the Governor. This is also apparent from
the conscious decision of the Constituent Assembly in removing the
expression “ in his discretion ” while enacting Article 200. Thus, the only
express stipulation where the Governor may exercise discretion for
reservation of bills is in the second proviso to Article 200. Even when looked
at from the perspective of necessary implication, the discretion of the
Governor in reserving the bills for the consideration of the President can be

29
ONSTITUENT SSEMB EB ONSTITUENT SSEMB EB
9, C A . D . (Aug 1, 1949) 59-62; 10, C A . D . (Oct. 17,
1949) 392-394.
W.P. (C) No. 1239 of 2023 Page 269 of 414

said to be present only in those cases where the Constitution has envisaged
a mandatory approval of the Government, before the law can become
enforceable in the State. The Sarkaria Commission mentioned three
categories where reservation of a bill for the consideration of the President
is envisaged:
a. First , where the bill pertains to the second proviso of Article 200, Article
288(2) or Article 360(4)(a)(ii) of the Constitution, reservation for the
President is a mandatory condition as the bill will not become effective
without his assent;
b. Secondly , where the bill pertains to Articles 31A(1) or 31C, presidential
assent is compulsory for securing immunity from the operation of
Articles 14 and 19. Similarly, where the law is repugnant to a Union
legislation on a Concurrent list subject-matter, presidential assent is
required to make the law effective in the State. Further, laws made under
Article 304(b) would not be enforceable if they were introduced without
the previous sanction of the President and having been introduced and
passed by the State legislature, have not received the assent of the
President. This position can be derived from a reading of Article 255;
c. Thirdly , there may be laws falling outside the aforesaid categories which
may be reserved by the Governor for the President. However, the scope
of discretion in such category of laws would be extremely limited and
only when an exceptional situation of the nature described by this Court
W.P. (C) No. 1239 of 2023 Page 270 of 414

in M.P. Special Police (supra) and in Nabam Rebia (supra) as explained
by us in paragraph 300 of this judgment arises that there would be scope
for the Governor to reserve the bill for the consideration of the President.

307. While construing the role of the Governor in the context of Article 200, we
must keep in mind that such a role has been envisaged not to supplant the
opinion of the Council of Ministers, but to infuse it with his wisdom. The
role of a friend, philosopher and guide which a Governor is to play under
the Constitution is played by him at various stages of administrative and
legislative functioning of the State. Article 167 makes it mandatory for the
Chief Minister to share with the Governor, inter alia , the proposals of
legislations that the government wishes to introduce in the State legislature.
This means that the Governor is made well aware of any legislation that the
State government is planning to enact much before it is introduced in the
State legislature and sent to him for assent. Thus, the advisory role of the
Governor is best played by engaging with the Council of Ministers even
before the legislation is introduced in the State legislature. He is well within
his rights, and in fact, it is his bounden duty to put to use his experience and
wisdom by making constructive suggestions to the Cabinet regarding the
legislative proposals. The Council of Ministers would also do good to take
into consideration the advice of the Governor and deliberate upon it so that
the legislation and ultimately, public interest is benefitted.
W.P. (C) No. 1239 of 2023 Page 271 of 414


308. However, once the bill is passed by the State legislature, and presented to
the Governor for assent, he must act on the aid and advice of the Council of
Ministers as a general rule and only in exceptional situations which have
been illustrated in paragraph 300 of this judgment, should he reserve it for
the consideration of the President. A look at Rule 48 of the Tamil Nadu
Government Business Rules, 1978 makes it clear that once a draft bill is
approved by the Minister-in-Charge, a copy of it is supplied to the Governor.
Rule 48 reads thus:
“48. (1) If the tentative draft Bill is approved by the Minister
in charge, it shall be circulated to the other Ministers and a
copy supplied to the Governor and unless the Chief Minister
directs otherwise, the tentative draft Bill shall be brought
before a meeting of the Council. Proposals for any
substantial or important amendments in the draft Bill after its
approval shall also be dealt with similarly.”