Are Governors undermining democracy by holding up bills? Should concern mount over India's democratic functioning as Punjab, Tamil Nadu, and Kerala approach Supreme Court over routine constitutional procedures?
27, Nov 2023 | Tanya Arora
A political row between governors and state governments has been stirring in the state of Tamil Nadu over past weeks. The Supreme Court has been petitioned. The Constitution of India, often referred to as a living document, attributes specified roles to state functionaries; yet, once again, under the Modi 2.0 regime, we witness yet another legal (and power) battle between the state government of Tamil Nadu and the state governor, a direct appointee of the union government.
To provide a brief overview, the state government of Tamil Nadu had approached the Supreme Court accusing the State Governor R. N. Ravi of acting like a “political rival” rather than a constitutional functionary creating a “constitutional deadlock”. The accusation was around the inexplicable delay in giving assent to the Bills passed by the Legislature. The Governor has been “sitting on 12 bills”. During the Supreme Court hearing on November 10, the Supreme Court bench had expressed “serious concern” over the matter raised before it and had issued notice to the Union Government on the writ petition filed by the state of Tamil Nadu. The fact that the Governor has been deliberately withholding the passage of these proposed laws –some for three years since 2020 and some since 2022 makes it even more shocking.
Tamil Nadu is now the fourth state, after Telangana, Punjab –now TN and Kerala– who have agitated the same issue—Governor’s obduracy and obstructionism in functioning before the Supreme Court. Whereas the Telangana and Punjab Governors, namely Tamilisai Soundararajan and Banwarilal Purohit respectively, hurriedly gave assent after the Supreme Court had been approached by the BRS (Bharat Rashtriya Samiti) and AAP (Aam Aadmi Party) governments, the Governors of Tamil Nadu and Kerala, R. N. Ravi and Arif Mohammad Khan preferred defiance.
Both Article 163 and Article 200 of the Constitution define the powers that are granted to a Governor of a state. These powers are limited. The issue of a delay in any decision on Bills send to respective Governors (sitting on bills and withholding assent) has arisen because since the said provision does not stipulate any specific time-frame that the Governor needs to abide by while deciding over bills passed by the Legislatures! Exploiting this ambiguity as well as their own power of discretion, has led to an ugly tug-of-war between four state legislatures and their governors.
Unrepentant by the admonishment from the Supreme Court, three days after hearings in the SC, on November 13, Governor Ravi had once again, returned, in bulk, the pending bills, once again withholding assent on the same. Thereafter, on November 18, the DMK (Dravida Munnetra Kazhagam)-led government held a special sitting of the Tamil Nadu Assembly and re-adopted the bills returned by the governor. Chief Minister M K Stalin had criticised the action of the Governor and stated in the Assembly that the Governor had only mentioned “I withhold assent” to the Bills without providing any reason for his decision.
In this piece, we will analyse the functions that the Indian Constitution assigns to the Governor of the state as well as the procedure established for the State government in passing and re-adopting bills. We will also have a look at the issues raised by the Tamil Nadu government and other states in the Supreme Court. Lastly, the impact that Governors acting adversely to its assigned duties and role can have on a democratic structure will also be delved into.
Tug of war: 12 bills, holding of assent and re-adoption
The Bills
The 12 bills that had been languishing with the state governor before being returned to the government included provisions covering the sectors of law, agriculture, and higher education, among other departments, according to an Indian Express report. They also dealt with crucial issues such as anti-corruption measures, the early release of prisoners and filling vacancies in the Tamil Nadu Public Service Commission. Six bills out of ten had been passed the previous year, as per the said report. Meanwhile, two of the bills had been adopted by the House in 2020 and 2023, which included a Bill passed by the previous AIADMK (All India Anna Dravida Munnetra Kazhagam) regime that sought to rename Tamil Nadu Fisheries University as Tamil Nadu Dr. J Jayalalithaa Fisheries University. The other one sought to include a government nominee on the selection panel for the position of vice-chancellor of the university.
Further, as per the report, the other Bills included those amending university laws, granting the state government the authority to appoint vice-chancellors to 12 universities under the administrative oversight of the higher education department. They sought to amend the Acts governing several key universities, such as the Tamil Nadu Dr Ambedkar Law University, Tamil Nadu Dr MGR Medical University, Tamil Nadu Agricultural University, Tamil University, Tamil Nadu Fisheries University, and Tamil Nadu Veterinary and Animal Sciences University. Increasing governmental authority within these institutions is the main goal of these revisions.
Another bill aimed to reform the Madras University Act, having derived influence from the university laws of Gujarat, Telangana, and Karnataka. As per the report, the aforementioned amendment was submitted to the governor in April of last year, 2022. With the intention of giving the state government—rather than the governor, who has historically held the role of Chancellor—the authority to name the vice-chancellors.
Additionally, the establishment of a unique Siddha medical university devoted to the Indian medical system close to Chennai was the goal of another bill. Originally, it was intended to establish a parent organization that would serve as a support system for numerous state-run and privately run medical schools that specialise in alternative therapies like siddha, Ayurveda, unani, yoga, naturopathy, and homoeopathy.
With-holding assent
On November 13, days after the Supreme Court had flagged the non-passing of crucial bills by the governor as a “senior concern”, Governor Ravi returned ten bills to the government. As per a report of the Hindustan Times, the governor has not yet acted upon the remaining two bills. As per multiple media reports, the Governor has not specified any reason or grounds for returning the said bills.
Re-adoption of the bills in special assembly
On November 18, five days after the bills were returned, the DMK-led government re-adopted the said bills. It is essential to note that as per a report of the Indian Express, the main opposition political parties, namely AIADMK and the Bharatiya Janata Party (BJP) had separately walked out of the Assembly before the re-adoption of the Bills over the issue of holding a special meeting while the matter remained pending in the Supreme Court. The readopted Bills were later sent to the Governor for his assent.
As per a report of the Hindustan Times, the speaker of the Assembly had called for a special session as the state government wants to pass the returned bills immediately and send them again to the governor for approval. As per the report, speaker M Appavu had stated that “We will re-introduce the bills he (governor) has returned and re-adopt them.”
“This House resolves that under Rule 143 of the Tamil Nadu Legislative Assembly rules the following Bills may be reconsidered by this Assembly,” the Chief Minister said while introducing the resolution to readopt the 10 bills. CM Stalin had emphasised that under Article 200 of the Constitution, the Governor “shall not withhold assent” once a Bill is passed again by the Assembly. As per a report of the Hindu, CM Stalin had further alleged that the conduct of the Governor indicated his attempts to block the new initiatives being brought in by the Tamil Nadu government. Stalin also alleged that his state was not the only one suffering this way and that all the non-BJP-ruled states were being “targeted” by the Centre “through Governors”.
In furtherance to this, Stalin stated that it was the duty of the Governor to give assent to Bills passed by the House that has an elected government and that the Governor “can seek legal or administrative clarification from the government if required, and the government has to provide it”, as provided by the Hindu. On the issue of no clarifications being provided for withholding consent, CM Stalin said “Him (governor) not giving assent to the Bills passed by the Assembly due to his whims and fancies and returning them amounts to insulting the people of Tamil Nadu and this House,” as per the report of the Hindu.
Moving the Supreme Court- writ petition filed, bench asks whether the governor has been sleeping till now
The writ petition: The Tamil Nadu government accused Governor Ravi of wilfully impeding governance and ignoring his constitutional obligations in an affidavit submitted on October 31. The writ petition claims that the Governor is responsible for a “systemic undermining” of the state’s elected machinery, resulting in a “constitutional deadlock,” in addition to causing major delays in legislation and important appointments.
Tamil Nadu’s main grievance is around Ravi’s purported “inaction, omission, delay, and failure” to provide his consent to bills that have been authorized by the legislature, in addition to his alleged disregard for a number of important official papers and directives.
The state administration stated in its petition that the Governor “has positioned himself as a political rival to the legitimately elected” Tamil Nadu government and that the Governor’s decisions must instead reflect “the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions” rather than being determined by the Governor’s own judgment.
In the petition, Tamil Nadu chief secretary Shiv Das Meena further claimed that Ravi was “toying away with the citizen’s mandate”. The petition urged the Court to instruct the Governor to dispose of all pending legislation and files that the government and assembly had forwarded to him within a certain amount of time.
The hearings before the Supreme Court:
On November 10, a bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra noted that as many as 12 bills are pending with the Governor and expressed concern over the Governor sitting over several crucial bills. The Supreme Court bench had observed that the issue raised “a matter of serious concern”. As per a report of the Hindu, the CJI observed that “The issues raised are of great concern. From the tabulated statement, it appears that as many as 12 bills submitted to the governor under Article 200 have not elicited any further action and other matters regarding proposal for grant of sanction, premature release and appointment of public service commission are pending. We issue notice to the Union of India represented by the secretary in the ministry of home affairs,”
Noting the same, the bench proceeded to issue a notice to the Union Government and also required the presence of the Attorney General for India or the Solicitor General of India for assistance in the matter.
During the next hearing, held on November 20, the bench of the Supreme Court was informed that Governor Ravi had returned 10 of the bills pending before him. The bench was further apprised of the re-adoption of the said bills on November 18. The bench came down heavily on the Governor and in strong remarks asked why the Tamil Nadu Governor had acted on some Bills sent for his assent only after the matter had reached the court. As per a report of the Indian Express, the bench emphasised that the Bills had been pending since January 2020, it asked: “What was the Governor doing for three years?”
“The Governor says he has disposed of these Bills on November 13. Our concern is that our order was passed on November 10. These Bills have been pending since January 2020. It means that the Governor took the decision after the court issued notice. What was the Governor doing for three years? Why should the Governor wait for the parties to approach the Supreme Court,” the CJI had asked as per the report of the Indian Express.
The Supreme Court then took note of the Tamil Nadu government’s argument that the Constitution does not provide Governor R.N. Ravi “discretion” to withhold the 10 Bills “re-passed” by the State Legislative Assembly. “Once they have been re-passed, these Bills are put in the same footing as Money Bills. Then you [the Governor] cannot reject…” CJI Chandrachud had remarked, as per the report of the Hindu.
The bench then clarified that they were not entering into the merits of the Bills, but were responding on the fact that some of the Bills were sent to the Governor in 2020 and some in 2022. As per the bench, the issue at hand was not regarding any particular governor, but the office of Governor.
“We are not talking of one Governor… we are talking about the office of the Governor. The issue is not whether any particular Governor had delayed in the discharge of the constitutional functions entrusted under Article 200, but whether, in general, there has been a delay in exercising the Constitutional function,” the CJI said, as per the Indian Express report.
State of Punjab, Kerala and Telangana rowing in the same boat
It is essential to highlight here that apart from the state of Tamil Nadu, the states of Kerala and Punjab had also recently moved the top court against their Governors for allegedly sitting on pending Bills. Notably, the state of Telangana had also filed a similar petition in the Supreme Court against its Governor in March.
Telangana’s petition against the Governor: In March 2023, the state government of Telangana had moved the Supreme Court seeking issuance of directions to Governor Tamilisai Soundararajan to clear ten bills passed by the legislative assembly. The said bills remained pending with the Governor, awaiting her assent. Through the petition, K. Chandrashekar Rao led BRS (Bharat Rashtra Samithi) government had accused the Governor of “sitting” on the Bills. Notably, Soundararajan had dismissed the allegations, stating that she was closely analysing the Bills. By end of April, the Supreme Court bench comprising CJI DY Chandrachud and Justice PS Narasimha had been apprised by the state government that all the pending bills had been assented to by the Governor. While disposing of the matter, the bench observed that bills should be returned “as soon as possible” to give effect to the first proviso of Article 200 of the Indian Constitution.
The bench had stated “ The first proviso to Article 200 states that the governor must “as soon as possible” after the presentation of the bill for assent return the bill which is not a money bill together with a message for reconsideration to the house or houses of state legislature. The expression “as soon as possible” has a significant constitutional intent and must be borne into mind.“
The order of the court can be read here:
Punjab’s petition against its Governor: Ironically, on the same day that the Supreme Court had heard the petition filed by the Tamil Nadu government against its Governor, the Supreme Court had delivered a significant judgment on Punjab’s petition against its Governor. On November 10, the Supreme Court bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra had said that it is not open for a Governor to withhold assent to bills by doubting the validity of the legislative session in which they were passed. The bench had provided that any attempt to cast doubt on the session of the legislature would be fraught with great perils to democracy.
“Any attempt to cast doubt on the session of the legislature would be fraught with great perils to democracy. The Speaker, who has been recognised to be the guardian of the privileges of house, was acting in his jurisdiction in adjourning the house sine die. Casting doubt on the validity of the session of the house is not a constitutional option open to the governor. The legislative assembly comprises of duly elected members of legislature,” the bench observed in its judgment. (Para 44)
Noting the aforementioned, the bench had rejected Punjab Governor Banwarilal Purohit’s contention that the state Assembly session held on June 19-20 was not constitutionally valid and asked him to proceed to decide on the four bills which have been submitted for his assent. In the judgment authored by the CJI, it was concluded that the “Governor is required to proceed to take a decision on the bills which have been submitted for assent on the basis that the sitting was constitutionally valid.” (Para 44)
Most importantly, in the said judgment, the Court had reaffirmed that the Governor is an unelected Head of the State and cannot use his constitutional powers to thwart the normal course of law making by the State.
“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,” the judgment provides. (Para 25)
The judgment can be read here:
In the said case, the Supreme Court was deciding a writ petition filed by the Punjab Government against the Governor’s inaction on four bills, which also included money bills. On October 31, three days after Punjab had moved the Supreme court, the Governor had given his approval to two of the three Money Bills sent to him — the Punjab Goods and Services Tax (Amendment) Bill, 2023, and the Indian Stamp (Punjab Amendment) Bill, 2023. Purohit on Thursday approved the third one: The Punjab Fiscal Responsibility and Budget Management (Amendment) Bill, 2023.
Hearing the petition that claimed the Governor’s action was “resulting in a near-standstill of administrative operations,” the Supreme Court said he cannot sit on key Bills passed by the legislature.
The arguments raised by the Governor was that the four bills were passed in the Session held in June, over which the Governor had expressed his doubts. Pursuant to this, the Governor had reserved assent on the bills, saying that he was required to take legal opinion of the Attorney General.
It is essential to note here that during the proceedings in the case, the Chief Justice of India had gone on to the extent of saying that the Governor was “playing with fire” by withholding his assent on the four bills on the aforementioned ground.
“How can you say that bill which has been passed cannot be assented to because session is invalid? You realise the gravity of what you’re doing? You are playing with fire. How can the governor say this…these are bills passed by elected members…Will we continue to be a parliamentary democracy? This is a very serious matter”, CJI DY Chandrachud orally said, as per a report of the LiveLaw.
The CJI had also harshly questioned the implications of giving such power to the Governor on a democratic structure by stating, “If we give such power to the Governor, will we continue to be a parliamentary democracy?”
Notably, the bench had proceeded to dictate the aforementioned judgment in the case on November 10 itself even as the counsel for the Governor had requested the bench to take up the matter on a later date.
In the same case, during a prior hearing held on November 6, the Supreme Court bench had expressed anguish at the fact that State Governments are forced to approach the Courts seeking decisions by the Governors on the bills passed by the legislature. As per a report of the LiveLaw, the Court had orally remarked that the trend of Governors acting on the bills only after the State Government approached the Court must be changed and prohibited.
Kerala’s petition against the Governor: Abreast with the petition moved by the Tamil Nadu government, the state of Kerala also moved the Supreme Court against the Governor for withholding the passage of bills. On November 20, the Supreme Court had issued notice to the Chief Secretary to the Governor and the Union of India on a plea filed by the Government of Kerala alleging that the Governor of Kerala, Arif Mohammed Khan, was delaying the consideration of bills that the State Assembly had passed. In the petition filed, it had been alleged that a total of eight bills remained pending with the Governor since the past 7-21 months. It had been contended by the government that the Governor had failed in his constitutional duties by causing unreasonable delay in considering the said eight bills.
“The conduct of the Governor, as would presently be demonstrated, threatens to defeat and subvert the very fundamentals and basic foundations of our Constitution, including the rule of law and democratic good governance, apart from defeating the rights of the people of the State to the welfare measures sought to be implemented through the Bills,” the State Government’s plea stated as per a report of the LiveLaw.
It is crucial to be noted that on November 24, the Supreme Court asked Governor Arif Mohammed Khan to refer to the judgment passed by the Supreme Court in the case related to Punjab Governor’s inaction on bills (discussed above) and adjourned the hearing of the petition filed by the State of Kerala till November 28.
As per the report of LiveLaw, CJI DY Chandrachud had asked Attorney General for India R Venkataramani to look at the order passed by the Court in the Punjab matter and give the Court their response after that.
What does the Constitution have to say?
The Constitution of India grants the office of Governor its powers and duties. Article 163 of the Indian Constitution states that “There shall be 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 the Constitution required to exercise his functions or any of them in his discretion.”
Article 200 of the Indian Constitution deals with the specific powers of the Governor with respect to granting and withholding assent to bills passed by the state legislature. Article 200 reads: “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.”
As per the said provision, when a Bill passed by the legislature of a state is presented to the Governor, the Governor has the right to exercise four options:
(1) Grant assent to the Bill;
(2) Withhold assent to the Bills;
(3) Return the Bills for reconsideration; or
(4) Reserve the Bill for the consideration of the President.
The said provision is also accompanied by a key proviso which specifies that the Governor “may, as soon as possible” return Bills other than money Bills, with a message requesting that the state legislature reconsider it in parts or in whole.
Thus, it becomes clear from the wordings of the said provision that the Governor is required to act upon the bills sent to the office of the Governor as soon as possible and they cannot be allowed to sit on the bills passed indefinitely.
The specific provision also deals with the scenario where the legislature reconsiders and re-adopts the bills returned and sends it back to the Governor once again. As specified in the provision, when the bills are re-sent once again, the Governor “shall not withhold assent therefrom”.
Both Article 163 and Article 200 of the Constitution constitute the powers that are granted to a Governor of a state. The issue of sitting on bills and withholding assent has been arising since the said provision does not stipulate any specific time-frame that the Governor needs to abide by while deciding over bills passed by the Legislatures. The exploitation of this ambiguity as well as the power of discretion has led to the existence of this tug-of-war between the state legislatures and the governors of the states where the governors do not exercise any of the four options available to them, delaying the whole process.
Impact, a perils to our democracy?
India follows a democratic structure that relies on the efficient division between the union and state governments, a unitary and federal structure. For due respect to be given by functionaries to the role played by either, political differences need to be contained with the constitutional frame.
So what happens when constitutional functionaries like the Governor –designed to limit themselves to a limited role, answerable to the President of India—become vehicles of an obstructionist politics?
As the petition by the Tamil Nadu government before the Supreme Court underlines, non-BJP ruled states are being targeted by the current ruling government. In a parliamentary democracy, it is state governments who are elected by people to voice and reflect their demands and aspirations. When bills are passed by the state legislatures to bring in changes and alter the workings of their state, how constitutional is it that the Governors without their assent and sit on the bills for years to come?
The crisis that has been highlighted by these petitions depict the working of a flawed regime that is bent on imposing its political might on the states. Even after the Supreme Court intervened and expressed concern on his conduct, Governor Ravi remained defiant and bulk returned the bills that had been pending with him without providing any reasons. The said conduct raises questions on the allegiance of the governor- can his conduct termed to be in conformity with the Constitution of India or to the ruling government at the Union? Should there be no accountability sought from the Governors for denying their responsibilities?
Four states so far, Telangana, Tamil Nadu and Punjab governments (and now Kerala), have had to get the Supreme Court intervene and assert constitutional functioning. This is consciously patterned conduct aimed at not just paralysing state governments but is an outright peril to our democracy. The petition filed by the Kerala government remains pending with the court. Once again, it is likely that this will follow the same pattern as laid down by the other three states. The fact that the apex court has to be approached just to ensure essential and basic constitutional functioning raises questions of Constitutional allegiance of this party, the Bharatiya Janata Party (BJP) that has also been accused of mis-using it’s brute majority in Parliament to browbeat any debate or difference, undermining the role of the political opposition. This trend is now also reflected in the brazen mal-functioning of BJP=appointed Governors who are obstructing governance in opposition-ruled states.
Related:
India today has all the markers of a failing democracy. But the situation is not irreversible
The principles of democracy can’t be scarified at altar of majoritarianism: Justice Govind Mathur
‘Press must remain free if a country is to remain a democracy’: CJI DY Chandrachud
Supreme Court finds self-regulation of TV to be “ineffective”, will frame stringent laws
