THE STATE OF TAMIL NADU versus THE GOVERNOR OF TAMIL NADU & ANR.

Summary

On the State of Tamil Nadu's Article 32 petition against the Governor's inaction on, withholding of assent to, and later reservation for the President of ten Bills re-passed by the State Legislature, the Supreme Court held that Article 200 gives the Governor only three options, that withholding assent is tied to the first proviso so that no pocket or absolute veto exists, that a Bill repassed after reconsideration cannot ordinarily be reserved and must be assented to, that the Governor acts on ministerial advice save in narrow exceptions, and that action under Articles 200 and 201 is judicially reviewable. It prescribed time-limits for the Governor and the President, declared B.K. Pavitra per incuriam in part, set aside the reservation of the ten Bills and the President's consequential action, and under Article 142 deemed the Bills assented to on 18.11.2023.

Issues

1. What courses of action are available to the Governor under Article 200; whether the first proviso is an independent fourth option or attaches to the option of withholding assent; and whether State of Punjab v. Principal Secretary to the Governor of Punjab is per incuriam in light of Valluri Basavaiah Chowdhary and Hoechst.
2. Whether the scheme of Article 200 permits the Governor to exercise an 'absolute veto' by simpliciter withholding assent or a 'pocket veto' by inaction.
3. Whether the Governor can reserve a Bill for the consideration of the President when it is presented to him again after reconsideration under the first proviso, not having reserved it in the first instance, and whether the reservation of the ten repassed Tamil Nadu Bills on 28.11.2023 was valid.
4. Whether there is an express constitutional time-limit for the Governor to act under Article 200, how the expression 'as soon as possible' is to be construed, and whether the Court can prescribe time-limits.
5. Whether the Governor under Article 200 must act only on the aid and advice of the Council of Ministers, what discretion (if any) he has and from what source, and whether B.K. Pavitra is per incuriam on this point.
6. Whether the Governor's exercise of discretion under Article 200 and the President's withholding of assent under Article 201 are subject to judicial review and on what parameters, having regard to Hoechst, Kaiser-I-Hind and B.K. Pavitra.
7. In what manner the President must act under Article 201 once a Bill is reserved, including whether a time-limit applies, whether reasons must accompany withholding of assent, whether the proviso attaches to withholding, and the role of a reference under Article 143.
8. Whether, on the facts, the Court should exercise its power under Article 142 to deem the ten Bills to have been assented to.

Provisions considered

• Article 200 (substantive part), Constitution of IndiaQuoted in full. 'Shall declare' obliges the Governor to choose one of three mutually exclusive options (assent, withhold assent, reserve for the President) joined by 'or'; there is no fourth course. 'Withhold' means to defer, not to deny; withholding is inseparably linked to the first proviso, so neither a pocket veto nor an absolute veto exists. The Governor is an intermediary stop in the Bill's journey and can never permanently keep a Bill or kill it. (¶¶ 37, 41, 42, 169, 189, 190, 196, 197, 198, 201, 434)
• Article 200, first proviso, Constitution of IndiaNot an independent course of action but clarificatory of the procedure that must follow withholding of assent; 'may' reflects that it applies only when that option is chosen and need not be read as 'shall'. 'As soon as possible' binds the Governor to act with expedition in returning the Bill with a message; 'shall reconsider the Bill accordingly' obliges the Legislature, if it takes the Bill up, to consider the Governor's suggestions but not to adopt them; and 'shall not withhold assent therefrom' leaves the Governor no option but assent when the Bill is repassed with or without the suggested amendments. The Bill 'falls through' only if the Legislature chooses not to repass it. (¶¶ 43, 170, 185, 186, 187, 188, 192, 202, 203, 204, 205, 206)
• Article 200, second proviso, Constitution of IndiaMandates reservation of a Bill which in the Governor's opinion would so derogate from the powers of the High Court as to endanger its constitutional position; it is the only express instance under Article 200 where the Governor acts in his own discretion, as recognised in Samsher Singh. (¶¶ 44, 171, 293, 295, 306, 318, 320)
• Article 201, Constitution of IndiaQuoted in full. Gives the President two options; the proviso lets him direct return of a non-Money Bill with a message, which the Legislature must reconsider within six months, after which the Bill is presented 'for his consideration', not 'for assent', so the President is not bound to assent in the second round. Despite the absence of 'shall not withhold assent', the proviso attaches to the option of withholding: no simpliciter withholding, reasons must be communicated, the proviso should ordinarily be invoked once and comprehensively, and the President must decide within three months of receiving the reference, recording and conveying reasons for any delay. (¶¶ 370, 371, 372, 373, 374, 382, 384, 391, 393, 394, 395, 396, 397, 400, 401, 403, 404, 405, 434)
• Article 163(1) and (2), Constitution of IndiaQuoted. The source of all gubernatorial discretion lies in clause (1): the Governor acts on the aid and advice of the Council of Ministers except where by or under the Constitution he is required to act in his discretion, whether expressly, by necessary implication, or in the exceptional situations recognised in M.P. Special Police and Nabam Rebia; clause (2) does not confer a general discretion and its finality clause does not oust judicial review of discretion exercised beyond jurisdiction. (¶¶ 272, 285, 292, 294, 299, 300, 301, 302, 305, 318, 320, 325)
• Article 142, Constitution of IndiaInvoked, following A.G. Perarivalan, to deem the ten Bills assented to on 18.11.2023 rather than remit them to the Governor, because granting assent was the only constitutionally permissible option, the Bills had been pending for unduly long and the Governor's conduct lacked bona fides. (¶¶ 241, 426, 427, 428, 432, 433, 435)
• Article 143, Constitution of IndiaWhere a Bill is reserved on the ground of patent unconstitutionality perilous to representative democracy, the President, though not bound to, ought as a measure of prudence to seek the Supreme Court's opinion before deciding under Article 201, since constitutionality is for the courts and there is no mechanism for the Governor to refer Bills to a court; the opinion has high persuasive value and departure from it requires cogent recorded reasons. (¶¶ 366, 410, 411, 412, 415, 417, 419, 420, 421, 434)
• Article 361, Constitution of IndiaFollowing Rameshwar Prasad, the personal immunity of the Governor bars impleading him and issuing notice to him but does not bar a challenge to his actions, including those under Article 200, which the State or Union must defend. (¶¶ 333, 334)
• Articles 31A, 31C, 254(2), 288(2) and 360(4)(a)(ii), Constitution of IndiaIdentified as provisions under which the President's assent is a condition precedent to a State law taking effect or securing immunity; a Bill attracting them is one the Governor may by necessary implication reserve in his discretion if the Council of Ministers fails to so advise, and the President's decision on such references carries a policy element subject only to limited review for arbitrariness or mala fides. (¶¶ 108, 109, 306, 318, 320, 375, 395, 406)
• Article 111, Constitution of IndiaDraft Article 91 had fixed 'not later than six weeks' for the President to return a Bill; the Constituent Assembly substituted 'as soon as possible', later adopted in Article 200, reposing trust that the constitutional head would act promptly; experience under Article 200 proved the apprehensions of members such as H.V. Kamath prophetic. (¶¶ 216, 217, 218, 222, 223, 224, 373)
• Article 196, Constitution of IndiaClause (5) is exhaustive of when pending Bills lapse on dissolution; Purushothaman Nambudiri held that a Bill pending assent does not lapse, and its observation that Articles 200 and 201 fix no time-limit was made in that context and does not suggest the Governor's function is free of urgency. (¶¶ 232, 233, 234, 235, 236)
• Section 75, Government of India Act, 1935Quoted as the model for Article 200. The Constituent Assembly deleted 'in his discretion' from both the substantive part and the proviso, added 'shall not withhold assent therefrom' and the second proviso, and omitted any automatic lapse; these departures show that the discretion the Governor enjoyed under the 1935 Act over withholding and reservation of Bills did not survive the Constitution. (¶¶ 38, 39, 40, 70, 72, 74, 305, 306, 315, 316, 317)

Held

• Only three courses are open to the Governor under Article 200. The first proviso is not an independent fourth option but is intrinsically attached to the option of withholding assent and elaborates the procedure that must then follow; the phrase 'the Bill falls through unless the procedure indicated in the first proviso is followed' in Kameshwar Singh, Valluri Basavaiah Chowdhary and Hoechst means only that the Bill lapses if the Legislature elects not to repass it, and gives the Governor no discretion over whether to set the proviso in motion. Those decisions exclude Money Bills from withholding only by reading the substantive part with the first proviso, which reinforces rather than undermines State of Punjab; that decision lays down the correct law and is not per incuriam. The word 'may' in the proviso need not be read as 'shall'. (¶¶ 187, 188, 190, 191, 192, 196, 434)
• Neither a pocket veto nor an absolute veto is available to the Governor. 'Shall declare' leaves no scope for inaction and 'as soon as possible' infuses expediency; 'withhold' connotes deferment, not denial, and once assent is withheld the first-proviso machinery operates to the exclusion of everything else in the Article and can conclude only in assent. A simpliciter withholding of assent without a message is impermissible; the Governor may not sit on Bills, and prolonged inaction is grossly violative of the constitutional scheme. (¶¶ 197, 198, 201, 202, 203, 209, 215, 225, 434)
• A Bill presented to the Governor after being reconsidered and repassed in accordance with the first proviso cannot be reserved for the President; he is bound to assent. The only exception is where the Legislature, in reconsidering, introduces changes not suggested in the Governor's message so that it has not 'reconsidered the Bill accordingly' and the Bill is materially different; then all three options revive, and any such reservation is subject to judicial scrutiny. On the facts, the Governor withheld assent to ten Bills simpliciter without any message, after State of Punjab had been pronounced and notice issued in the petition; the Legislature, left to assume the whole Bills needed reconsideration, repassed them without material change; the subsequent reservation for the President on the ground of repugnancy to Entry 66 of List I was in contravention of Article 200, illegal and void, and any decision of the President on those Bills is non est and void ab initio. (¶¶ 203, 204, 205, 206, 207, 208, 209, 210, 211, 430, 434)
• Article 200 contains no express time-limit, but where no time is fixed a power must be exercised within a reasonable time, and inaction by the Governor is judicially reviewable (A.G. Perarivalan, Keisham). Purushothaman Nambudiri, which noted the absence of a time-limit in the context of lapse on dissolution, does not bar the Court from prescribing one. A judicially evolved time-limit is a benchmark for judicial review, not an amendment of the text: unlike constitutions providing deemed assent, non-compliance does not itself produce assent but exposes the delay to scrutiny, the Governor remaining free to justify it. Guided by the Sarkaria and Punchhi Commissions, the Court prescribed: (i) withholding assent or reserving a Bill on the advice of the Council of Ministers, forthwith and within one month; (ii) withholding assent contrary to that advice, return with a message within three months; (iii) reservation contrary to that advice, within three months; (iv) on presentation after reconsideration under the first proviso, assent forthwith and within one month. Breach makes the inaction amenable to judicial review. (¶¶ 229, 231, 236, 237, 239, 240, 241, 243, 244, 245, 250, 251, 434)
• As a general rule the Governor under Article 200 has no discretion and must abide by the aid and advice of the Council of Ministers; the deletion of 'in his discretion' from Section 75 of the 1935 Act, the Constituent Assembly debates on draft Article 175 (including T.T. Krishnamachari's explanation that the first proviso is a saving clause used on ministerial advice) and the principles of responsible government all point this way. The only exceptions, traceable to Article 163(1) and the second proviso, are: (a) Bills of the description in the second proviso; (b) Bills attracting Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) and the like, where the President's assent is a condition precedent to enforceability or immunity; and (c) Bills which, if enacted, would place the fundamental principles of representative democracy in peril as described in M.P. Special Police and Nabam Rebia. Samsher Singh (paras 54 to 56) identified the second proviso as the only instance of express discretion under Article 200; the Governor's advisory role is best played before introduction of the Bill under Article 167 and the Business Rules. (¶¶ 293, 295, 300, 305, 306, 307, 308, 310, 315, 317, 318, 319, 320, 434)
• B.K. Pavitra v. Union of India is per incuriam to the extent it held (i) that the Constitution confers discretion on the Governor in reserving Bills for the President and (ii) that such discretion is beyond judicial scrutiny: it failed to notice the larger-Bench decisions in Samsher Singh and M.P. Special Police, the removal of 'in his discretion' from Section 75 of the 1935 Act, and the limits on discretion laid down in Nabam Rebia. Reading unfettered discretion together with immunity from review would place the Governor's actions in a lead casket impervious even to constitutional breach. (¶¶ 303, 304, 305, 306, 311, 348, 349, 434)
• No exercise of power under the Constitution is beyond judicial review; justiciability, which depends on judicially manageable standards, is distinct from the power of review (S.R. Bommai, A.K. Kaul), and the controlling factor is the subject-matter of the power, not its source (Epuru Sudhakar). Article 361 does not bar challenge to the Governor's actions. Kameshwar Singh, Hoechst and Kaiser-I-Hind, which describe the President's assent as non-justiciable, were decided in different contexts and cannot be stretched to immunise the Governor's withholding of assent or reservation of Bills, which are part of legislative procedure, are exercisable only for predetermined constitutional purposes and must be supported by reasons; grant of assent may be non-justiciable for want of material, but withholding and reservation are justiciable on constitutional standards. The President's withholding under Article 201 is reviewable on the limited grounds of arbitrariness, mala fides and inaction where the Union has primacy, and more fully where the Bill falls within the State's exclusive domain or was reserved on grounds of patent unconstitutionality. (¶¶ 332, 333, 337, 338, 339, 345, 348, 357, 358, 359, 362, 363, 364, 365, 366)
• Grounds of challenge summarised: a reservation contrary to ministerial advice may be assailed before the High Court or Supreme Court (i) under the second proviso, on the ground that the Bill does not derogate from the High Court's powers, the Governor being expected to give clear reasons and identify the offending provisions; (ii) where the President's assent is constitutionally required, if the reference fails to state reasons as required by Kaiser-I-Hind (whose requirement of a specific, reasoned reference applies to every Bill reserved under Article 201) or the reasons are irrelevant, mala fide, arbitrary or extraneous; (iii) on peril-to-democracy grounds, if the Governor fails to pinpoint the provisions, consequences and why the constitutional courts could not contain them; (iv) reservation on any other ground, such as personal dissatisfaction or political expediency, or after having withheld assent save in the paragraph 204 situation, is impermissible and liable to be set aside forthwith; and (v) inaction beyond the prescribed time-limits invites mandamus, subject to the Governor explaining the delay. Where the President withholds assent, review is limited to arbitrariness or mala fides for Bills requiring his assent, is full for Bills reserved on grounds of patent unconstitutionality, and mandamus lies for inaction beyond three months. These categories are not exhaustive. (¶¶ 354, 355, 356, 367, 368, 369, 434)
• Under Article 201 the President has no pocket or absolute veto. He must decide within three months of receiving the reference, recording and conveying reasons for any delay (adopting the Ministry of Home Affairs memorandum of 04.02.2016), and the States must cooperate by answering queries promptly. Withholding of assent must rest on a constitutional provision requiring the President's assent and be accompanied by sound and specific reasons communicated to the State; the proviso attaches to the option of withholding and must ordinarily be invoked once, comprehensively and in good faith, after seeking clarifications from the State Government. After repassing, the President may finally withhold assent, but only with cogent reasons. On references raising patent unconstitutionality the President ought prudently to seek the Supreme Court's opinion under Article 143 and ordinarily act on it, departing only for recorded policy reasons; the Court may decline to answer purely policy questions. States should consult the Centre before introducing Bills needing the President's assent. (¶¶ 384, 391, 394, 395, 396, 397, 400, 401, 402, 403, 404, 405, 407, 412, 417, 418, 419, 421, 425, 434)
• Exercising Article 142: the Governor's conduct, including prolonged inaction, simpliciter withholding without a message, and reservation in the second round immediately after State of Punjab, showed a clear lack of bona fides and scant respect for the Court's decisions, so remitting the Bills to him would serve no purpose; the ten Bills are deemed to have been assented to on 18.11.2023, the date they were presented after reconsideration. The Governor must act as a friend, philosopher and guide to the State Government, guided by his oath and not political expediency; the Registry was directed to circulate the judgment to all High Courts and the Principal Secretaries to all Governors. (¶¶ 431, 432, 433, 435, 436, 437, 445)

Result

Writ petition disposed of: the Governor's reservation of the ten Bills for the consideration of the President on 28.11.2023 declared erroneous in law, non est and set aside; any consequential steps taken by the President on those Bills set aside; in exercise of power under Article 142 the ten Bills deemed to have been assented to on 18.11.2023; Registry directed to send copies of the judgment to all High Courts and to the Principal Secretaries to the Governors of all States; pending applications disposed of.