“Lord Denning summed up the gist of the principle of the rule of law when he said:To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you never so high, the law is above you.’"
-Gary Slapper, How the Law Works, p. 7
President and Governor do not hold the power to exercise ‘absolute veto’ on any bill.
The Constitution is not a maze, but a labyrinth. Although both may semantically appear to be one and the same, yet there is a very fine but discernible difference between the two. The difference lies in the fact that in a maze one may lose their way within the multiple overlapping paths, with the possibility of each of them leading to a dead-end, however in a labyrinth one eventually finds the way and in the process also come out more enlightened.
-Justice J. B. Pardiwala, Supreme Court of India, April 8, 2025
In The State of Tamil Nadu vs. The Governor of Tamil Nadu (2025), Supreme Court's division bench of Justices J. B. Pardiwala and R. Mahadevan delivered a 414 page long judgement on April 8, 2025 which reads:"We direct the Registry to send one copy each of this judgment to all the High Courts and the Principal Secretaries to the Governors of all States." It made it crystal clear that when Governor of any State reserves a bill for the consideration contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the relevant High Court or the Supreme Court.
Referring to conduct of the Governor of Tamil Nadu, the Supreme Court observed: "the Governor first withheld the ten bills under question and later despite the said Bills being repassed by the State legislature and presented before him again under the first proviso to Article 200, still reserved them for the consideration of the President. We have elaborated in detail that owing to the clear language in which the first proviso is couched, there would never arise, except in extraordinary situations, any occasion for the Governor to reserve a reconsidered bill for the consideration of the President. The said bills, in the absence of any message given by the Governor under the first proviso, were taken up for reconsideration by the State Assembly and passed in their original form, and presented to the Governor for his assent. Thus, undoubtedly, it was not open to the Governor to reserve the bills for the consideration of the President and he ought to have granted assent."
The judgement reads: "we have reached the following conclusion:
a. The reservation of the ten Bills which are the subject-matter of challenge in the present petition by the Governor for the consideration of the President on 28.11.2023 after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 as explained by us hereinabove is declared to be erroneous in law, non-est and thus, is hereby set-aside.
b. As a result of the above, any consequential steps that might have been taken by the President on these ten Bills is equally non-est and is hereby set-aside.
c. Having regard to the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent and in view of the scant respect shown by the Governor to the decision of this Court in State of Punjab (supra) and other extraneous considerations that appear to be writ large in the discharge of his functions, we are left with no other option but to exercise our inherent powers under Article 142 of the Constitution for the purpose of declaring these ten Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023.
We are in no way undermining the office of the Governor. All we say is that the Governor must act with due deference to the settled conventions of parliamentary democracy; respecting the will of the people being expressed through the legislature as-well as the elected government responsible to the people. He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes. In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, wisdom and not run it into a standstill.
He must be the catalyst and not an inhibitor. All his actions must be impelled keeping in mind the dignity of the high constitutional office that he occupies.
The Governor before he assumes office undertakes an oath to discharge his functions to the best of his ability in order to preserve, protect and defend the Constitution and the rule of law, along with avowing to devote himself to the service and well-being of the people of the State. Therefore, it is imperative that all his actions be guided in true allegiance to his oath and that he faithfully executes his functions that he is entrusted with by and under the Constitution. There is a reason why a specific reference is made to the well-being of the people of the State in his oath, there is a reason why he is sworn in to pledge himself to the service of the same people; the Governor as the constitutional head of the State is reposed with the responsibility to accord primacy to the will and welfare of the people of the State and earnestly work in harmony with the State machinery, as his oath not only makes this mandate anything but clear but rather also demands it of the Governor owing to the intimate and delicate nature of the functions that he performs and the potency of the ramifications that could ensue or be unleashed upon the State. Due to this, the Governor must be conscious to not create roadblocks or chokehold the State Legislature in order to thwart and trade the will of the people for political edge. The members of the State Legislature having been elected by the people of the State as an outcome of the democratic expression are better attuned to ensure the wellbeing of the people of the State. Hence, any action contrary to the express choice of the people, in other words, the State legislature would be a renege of his constitutional oath.
Before we part with the matter, we find it apposite to observe that constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers.
When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built.
The Court's judgement reads:"Considerable time has elapsed since these ten Bills were originally passed and presented to the Governor for assent. Two out of the ten Bills even date back to 2020. It is important to keep in mind that the tenure of the State legislature is of five years and the representatives are accountable to their electorate as regards the enactment of legislations addressing the issues faced by the electorate. At the end of every five years, the elected representatives have to go back to their electorate and provide a report card, based upon which the people, in whom the ultimate sovereignty rests, cast their votes. Bills, if kept pending for long despite their passage by the State legislature, militate against this very fundamental, essential to the sustenance of a representative democracy based on direct elections."
The Court observed; "The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides. There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court. In such a situation, it is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by us in this judgment. Article 142 empowers this Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, we deem it absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers. No meaningful purpose would be served by keeping the bills, some of which have already been pending for incredulously long periods, pending for more time. Therefore, we deem the assent to have been granted."
Ky further underlined: "Constitutional authorities are creatures of the Constitution and are bound by the limitations prescribed by it. No authority, in exercise of its powers, or to put it precisely, in discharge of its duties, must attempt to breach the constitutional firewall. The office of the Governor is no exception to this supreme command. Whenever there is an attempt by any authority to move beyond the bounds of the Constitution, this Court has been entrusted with the responsibility to act as the Sentinel on the qui vive and bring back the authority within the constitutionally permissible limits by exercising judicial review. We are not exercising our power under Article 142 in a casual manner, or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor - first in exhibiting prolonged inaction over the bills; secondly in declaring a simplicter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round - were all in clear violation of the procedure envisaged under the Constitution, that we have decided to declare the deeming of assent to the ten bills, considering it to be our constitutionally bounden duty."
The division bench wrote: "In our view, that is the only way to ensure that complete justice is done with the parties without any delay, and without possibility of any further delay due to any inaction on the part of the Governor, or lack of deference on his part to this judgment."
In conclusion, the judgement reads:"we answer the questions of law formulated by us as under:
(I)In discharge of his functions under Article 200, the Governor has three options to choose from when a bill passed by the State legislature is presented to him –
i. First, to assent;
ii. Secondly, to withhold assent; or
iii. Thirdly, to reserve the bill for the consideration of the President.
(II) The first proviso to Article 200 should be read in conjunction with the option of withholding of assent provided in the substantive part of Article 200. It is not an independent course of action and has to be mandatorily initiated by the Governor in cases where the option of withholding of assent is to be exercised. The decision of this Court in State of Punjab (supra) lays down the correct position of law in this regard.
(III) The expression “the bill falls through unless the procedure under the first proviso is followed” as used in Valluri Basavaiah Chowdhary (supra) signifies that once the Governor declares withholding of assent and returns the bill to the House or Houses, the bill would lapse or fall through unless the House or Houses reconsider the bill in accordance with the suggestions made by the Governor in his message and present it to him after repassing. The expression “unless the procedure under the first proviso is followed” cannot be construed to mean that the Governor exercises discretion in setting the machinery prescribed under the first proviso in motion. Once the Governor exercises the option of withholding assent, he is under an obligation to follow the procedure prescribed in the first proviso “as soon as possible”.
(IV)The decision of this Court in State of Punjab (supra) cannot be said to be per incuriam. The observations made in the decision as regards attaching of the first proviso with the option of withholding of assent are supported by the observations made in Valluri Basavaiah Chowdhary (supra).
(V) Neither the concept of ‘pocket veto’ nor that of ‘absolute veto’ finds place within the constitutional scheme and mechanism envisaged under Article 200 of the Constitution. The substantive part of Article 200 consciously uses the expression “shall declare” to signify that there is no scope of inaction, and whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein. Further, the expression “as soon as possible” in the first proviso permeates Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them.
Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simpliciter withholding of assent, meaning thereby that ‘absolute veto’ is also impermissible under Article 200.
(VI)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.
(VII) As a general rule, it is not open for the Governor to reserve a bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso. The use of the expression “shall not withhold assent therefrom” appearing in the first proviso places a clear embargo on the Governor and is a clear enunciation of the requirement that the Governor must assent to a bill which is presented to him after complying with the procedure laid down in the first proviso. The only exception to this general rule is when the bill presented in the second round is materially different from the one presented to the Governor in the first instance, as discussed in paragraph 204 of this judgment. In such a scenario, it would be open for the Governor to choose from the three options provided in the substantive part of Article 200.
(VIII) In the facts of the present case, the reservation by the Governor of the ten Bills for the consideration of the President in the second round was illegal, erroneous in law and is thus liable to be set aside.
As a result, any subsequent action taken upon the said Bills by the President also does not survive and is thus set aside.
(IX)The Bills, having been pending with the Governor for an unduly long period of time, and the Governor having acted with clear lack of bona fides in reserving the Bills for the consideration of the President, immediately after the pronouncement of the decision of this Court in State of Punjab (supra), are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered.
(X)There is no expressly specified time-limit for the discharge of the functions by the Governor under Article 200 of the Constitution.
Despite there being no prescribed time-limit, Article 200 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.
(XI)The use of the expression “as soon as possible” in the first proviso makes it clear that the Constitution infuses a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent.
(XII) The settled position of law is that where no time-limit for the exercise of a power is prescribed, the same must be exercised in a reasonable time period. Guided by the decisions of this Court in A.G. Perarivalan (supra) and Keisham (supra), we find that it is no more res-integra that the courts are well-empowered to prescribe a time-limit for the discharge of any function or exercise of any power which, by its very nature, demands expediency.
(XIII) 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 which would fundamentally change the procedure and mechanism stipulated by Article 200. Prescription of such time-limits within the scheme of Article 200 is with a view to lay down a determinable judicial standard for ascertaining the reasonable exercise of such power and to curtail any arbitrary inaction. This Court while prescribing a time-limit for the exercise of power, is guided by the inherent expedient nature of the procedure prescribed under Article 200.
(XIV) 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 ofML Ministers, the Governor shall make such reservation within a maximum period of three months;
(iv) In case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month.
(XV)As the general rule, the Governor in exercise of his functions Under Article 200 is required to abide by the aid and advice tendered by the Council of Ministers. The only exceptions to this rule can be traced to the second proviso to Article 200 and Article 163(1) of the Constitution. Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion, would he be justified in exercising his powers under Article 200 contrary to the advice of the Council of Ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review.
(XVI) We declare the view taken in B.K. Pavitra (supra) to be per incuriam to the extent of the following two observations made therein – First, that the Constitution confers discretion upon the Governor insofar as the reservation of bills for the consideration of the President is concerned and; Secondly, that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny.
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 decision of B.K. Pavitra (supra) is not in consonance with the observations made by the larger bench decision of this Court in Samsher Singh (supra). The majority opinion in Samsher Singh (supra) in paragraph 28 observed that “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” At the cost of repetition, we again reiterate “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”.
The decision in Samsher Singh (supra) illustrated certain provisions of the Constitution which expressly required the Governor to exercise his powers in his discretion. The second proviso to Article 200 was one such illustration. Thus, it is amply clear from the dictum in Samsher Singh (supra) that the Seven Judge Bench, after taking into consideration the scheme of Article 200, observed that the second proviso to Article 200 was the only instance where the Governor had been entrusted with the power to act in his own discretion. Subsequent Constitution Bench decisions in M.P. Special Police (supra) and Nabam Rebia (supra) clarified that besides the instances where the Governor has been expressly conferred with discretionary powers, there may still be certain exceptional circumstances wherein it would be legitimate for him to act in his own discretion as indicated by us in paragraph 300.
However, the general rule remains that the Governor acts upon the aid and advice of the State Council of Ministers.
Under Article 200 of the Constitution, the Governor does not possess any discretion in the exercise of his functions and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows:
(i) Where the bill is of a description as provided under the second proviso to Article 200;
(ii) Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law;
(iii) Where the bill is of a nature that if allowed to take effect then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril.
The observations made 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”do not take into consideration the decision of Samsher Singh (supra) and is for this reason per incuriam. It failed to consider that Article 200 which had been duly considered by Samsher Singh (supra) was found to contain only one instance where the exercise of discretion was expressly provided, that being the second proviso thereto. Besides this, as already aforestated, it failed to notice the removal of the expression “in his discretion” from Section 75 of the GoI Act, 1935 which ultimately culminated into Article 200.
(XVII) Under Article 201, the occasion for the reservation of a bill for the consideration of the President by the Governor may arise where a constitutional provision makes the assent of the President to be a condition precedent to a State legislation becoming enforceable or for the purpose of securing some immunity to the State legislation.
Such a requirement can be found in Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. The second proviso to Article 200 also makes reservation for the consideration of the President mandatory.
As we have also discussed, there may be certain other situations where by peril to fundamental principles of representative democracy, the Governor may, in exercise of his discretion, reserve a bill for the consideration of the President.
(XVIII) There is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of his functions under Article 201. The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill. The constitutional scheme does not, in any manner, provide that a constitutional authority can exercise its powers under the Constitution arbitrarily. This necessarily implies that the withholding of assent under Article 201 is to be accompanied by the furnishing of reasons for such withholding. We cannot say for a moment that the President would be allowed to not exercise the proviso to Article 201 and not communicate reasons for the withholding of assent to the State legislature, as doing so would make the very inclusion of the proviso in Article 200 redundant. Thus, the proviso to Article 201 could be said to attach with the option of withholding of assent.
(XIX) The position of law is settled that even where no time-limit is prescribed for the exercise of any power under a statute, it should be exercised within a reasonable time. The exercise of powers by the President under Article 201 cannot be said to be immune to this heneral principle of law. Keeping in mind the expedient nature of the provision and having regard to the reports of Sarkaria and Puncchi Commissions, as well as the Memorandum dated 04.02.2016 issued by the Ministry of Home Affairs, we prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received. In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.
(XX)Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of
adjudicating upon the questions of constitutionality and legality of
an executive or legislative action. Therefore, as a measure of
prudence, the President ought to make a reference to this Court in
exercise of his powers under Article 143 of the Constitution.
(XXI) Judicial review and justiciability are not synonymous concepts. The ower of judicial review in a written constitution is implicit. Unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. On the other hand, justiciability relates to a particular field falling within the purview of the power of judicial review.
(XXII) The determining factor in deciding whether a power would be subject to judicial review is the subject-matter of such power and not its source. Indra Sawhney (supra) observed that the yardstick of subjecting an act or a decision to judicial review is not whether it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or the rights under Part III of the Constitution. The Governor, wherever he acts in his discretion under the Constitution, does so by virtue of his position as the constitutional and formal head of the State. It has been held in a catena of decisions that exercise of any power under the Constitution must conform to the limits set by the Constitution itself. Article 200 is no exception to this general rule.
(XXIII) In light of this, the observations made by this Court in Hoechst (supra) that the assent of the President is non-justiciable, cannot be stretched to mean that as a general rule, the exercise of powers by the Governor under Article 200 in his discretion would also be immune from judicial review. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards.
(XXIV) We summarise our findings on judicial review of the exercise of power by the Governor under Article 200 and the exercise of power by the President under Article 201 as follows:
a. . Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. Such a challenge can broadly be made on the following grounds:
(i)Where the reservation is on the ground that the bill is of a description falling under the Second Proviso to Article 200 of the Constitution, it may be assailed on the ground that the bill or any provision thereof does not so derogate from the powers of the High Court so as to endanger the position which that court is designed by the Constitution to fill. The Governor while reserving a bill on this count shall be expected to provide clear reasons and also point to the specific provision(s) of the bill which, in his opinion, attract the Second Proviso.
This question being purely of a legal nature would be completely justiciable and the competent court would be, after a proper adjudication, fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action. If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.
(ii)Where the reservation is on account of the bill attracting any provision of the Constitution wherein the assent of the President is a condition precedent for the proper enactment and enforceability of such a bill as a law (such as under Article 364A2) or for the purpose of securing any immunity (such as under Article 31A) or overcoming any repugnancy that may exist qua a Central Legislation (under Article 254(2)), then the Governor is expected to make a specific and clear reference to the President properly indicating the reasons for such reservation and inviting his attention as described in Kaiser-I-Hind (supra). Such a reservation can be assailed by the State Government, if the reference made by the Governor either fails to indicate the reasons for such reservation as discussed above or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. Then such a reservation would be liable to be set aside. This question being purely of a legal nature would be completely justiciable and the competent court would be after a proper adjudication fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be fit case for issuance of a writ in the nature of mandamus to the Governor for appropriate action. If however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.
(iii)Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M.P. Special Police (supra) and Nabam Rebia (supra) then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pinpointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law. The Governor while making such a reference should also indicate his subjective satisfaction as to why the aforesaid consequences that may ensue cannot be possibly curtailed or contained by taking recourse to the constitutional courts of the country. It shall be open to the State Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. This being a question completely capable of being determined by the constitutional courts, would be fully justiciable.
(iv)Reservation of a bill on grounds other than the ones mentioned above, such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set-aside forthwith on that ground alone. This will also encompass reservation of a bill by the Governor after having already exercised the option of withholding of assent in terms of Article 200 except in such exceptional circumstance as mentioned in paragraph 204 of this judgment.
(v)Where the Governor exhibits inaction in making a decision when a bill is presented to him for assent under Article 200 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 250 of this judgment then it shall be open to the State Government to seek a writ of mandamus from a competent court against the Governor directing expeditious decision on the concerned bill as is the mandate of the Constitution, however, it is clarified that the Governor may successfully resist such a challenge on providing sufficient explanation for the delay caused.
b. Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court. Such a challenge can broadly be made on the following grounds:
i)Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefore, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner. Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint.
(ii)Where a State bill has been reserved by the Governor, in his discretion, for the consideration of the President on the ground that the bill appears to be patently unconstitutional for placing the principles of representative democracy in peril, the withholding of assent by the President would, in ordinary circumstances, involve purely legal and constitutional questions and therefore be justiciable without any impediments imposed by the doctrine of political thicket. In such cases, it would be prudent for the President to obtain the advisory opinion of this Court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides.
(iii)Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court.
The judgement recalled Dr. B.R. Ambedkar’s concluding speech in the Constituent Assembly, which is as relevant today as it was in 1949 –“However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot”. The judgement was authored by Justice Pardiwala.
The Court observed:"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 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."
It pointed out that "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 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 judgment asserts that Justice D. Y. Chandrachud's observations in B.K. Pavitra v. Union of India (2019) 6 SCC 129 are per incuriam.
The ones who are complaining about lengthy judgement without reading the judgement may recall what Jacques Lacan, the French psychoanalyst and psychiatrist wrote: “The world of words creates the world of things.”
