Pendency of Bills in Tamil Nadu | Day 8: Why has the Governor withheld assent, Supreme Court asks AG Venkataramani

Pendency of bills before Tamil Nadu Governor

Judges: J.B. Pardiwala J, R. Mahadevan J

Sushovan Patnaik | 6th Feb 2025

Today, a Division Bench of Justices J.B. Pardiwala and R. Mahadevan continued hearing the case against the Tamil Nadu Governor for withholding assent to a bill passed by the state legislature. The hearing hinged on the interpretation of Article 200 of the Constitution, which deals with the Governor’s power to withhold assent to bills.

Senior Advocates Rakesh Dwivedi and Mukul Rohatgi appeared for the Tamil Nadu government. Dwivedi argued that the governor cannot sit in adjudication over bills as a super-legislator. Rohatgi traced the evolution of Article 200 from its predecessor provision in the Government of India Act, 1935, to argue that it was not constitutionally intended to enable the Governor to sit over bills this way.

Attorney General R. Venkataramani appeared for the Governor.

Background

On 31 October 2023, the government of Tamil Nadu approached the Supreme Court challenging Governor R.N. Ravi’s decision to keep various Bills and other proposals submitted by the state government pending indefinitely.

The state government pointed out that there were four categories of “cases” which had been kept pending by the Governor with no response.

The first category of cases related to 12 bills that had been passed by the Tamil Nadu Legislative Assembly between 2020 and 2023. Article 200 of the Constitution states that after the passage of a Bill by a state Legislative Assembly, or in case of a bicameral legislature, both Houses of the state, the Bill ought to be presented to the Governor. The Governor shall then have either of three options: to assent to the Bill, withhold assent from the Bill, or reserve the Bill for consideration by the President.

Article 200 also mentions that the Governor, after the presentation of the Bill, must return it “as soon as possible” along with a message requesting the House to reconsider specific provisions within or the entirety of the Bill. If the Bill were to be passed again and resent to the Governor, the Governor is obligated to not withhold it.

Tamil Nadu has said that the 12 Bills sent to the Governor between 13 January 2020 and 28 April 2023 amend legislations that established state universities in Tamil Nadu.

Eight of the 12 Bills seek to empower the state government to appoint the Vice Chancellor of the universities instead of the Governor, one Bill seeks inclusion of a government nominee on a selection panel for the appointment of the Vice Chancellor, two Bills seek to grant the government the power of inspection and enquiry instead of the Chancellor of the university, three Bills seek inclusion of the Finance Secretary in the Syndicate of all Universities (except three government universities), and one Bill seeks to establish a government Ayurveda university. One Bill also seeks complete control of the state government over the appointment of Vice Chancellors of all state universities (barring the University of Madras) instead of the Governor.

The second category of pending cases pertains to files submitted by the state government between 10 April 2022 and 15 May 2023 which seek sanction for prosecution of public servants for various crimes involving acts of moral turpitude, under the Prevention of Corruption Act, 1988.

Further, the government has argued that 54 files on the premature release of prisoners, submitted to the Governor between 24 August 2023 and 28 June 2023 have remained pending.

Finally, various proposals for the appointment of members for the Tamil Nadu Public Service Commission have remained pending. Article 316 of the Constitution states that the Chairman and other members of a State Public Service Commission are to be appointed by the Governor.

On 10 November 2023, the Bench found that the pendency of the proposals and Bills was “a matter of serious concern.” It issued notice to the Union of India through the Home Ministry and requested the Attorney General or Solicitor General to assist the Court. It listed the matter for 20 November. Following this, a record of proceedings was forwarded to the Attorney General and Solicitor General, although notice could not be issued to the Union since the Tamil Nadu government had not paid the process fees. No documents were filed as of 17 November.

On November 20, the Court learned that the Governor had “withheld assent” (the constitutional term for sending the Bill back to the Assembly) from 10 of the Bills. CJI D.Y. Chandrachud observed that the Governor had only now withheld assent to the Bills after the order of the Court on 10 November, even though the Bills had been pending since January 2020. Notably, following the Governor’s “withholding”, the Legislative Assembly had readopted the Bills. Chief Minister M.K. Stalin, while moving the resolution to reconsider the Bills, stressed on the point that, under Article 200, the Governor “shall not withhold assent” when a Bill is repassed by the Assembly.

The Attorney General noted that since the Bills pertained to the Governor’s powers in the appointment of Vice Chancellors, some “reconsideration was required.” When the Court pointed out that Bills had been pending since January 2020, the Attorney General argued that R.N. Ravi had only been appointed in 2021, to which the Court responded that the “issue is not whether any particular Governor delayed but whether in general there has been a delay in exercising constitutional functions.”

CJI Chandrachud stated that the question he wished to answer was whether, under Article 200, the Governor was mandated to resend a Bill to the legislature, or whether he could simply say that he was withholding assent. The petitioners argued that such a “pocket veto” did not exist—if the Governor is allowed to withhold bills indefinitely, “governance will be paralysed.” The CJI also asked the petitioners whether the Governor could send the Bill to the President after it had been re-passed by the Assembly. The petitioners argued that the Governor had no such power.

The Bench further recorded that out of the 181 Bills submitted to Governor R.N. Ravi, 152 have received assent, five were withdrawn by the state government, nine were reserved for the assent of the President, assent was withdrawn from another nine Bills, and five Bills received in October 2023 were under consideration.

Issues framed by the Court

As the hearing commenced, Justice Pardiwala enquired about the reasons which led to the governor keeping the bills with him for such a long time and proceeded to frame the following questions:

  1. Suppose the Governor withholds assent to a bill and sends it back to the State legislature. If the legislature re-enacts the Bill, can the Governor send the bill to the President for reconsideration, especially when he did not do so when the bill came to him the first time? 
  2. Is the discretion of the Governor in reserving a bill for the President exercisable upon any Bill or limited to certain specific categories, particularly where the subject matter appears to be beyond the competence of the State legislature or repugnant to a Central law?
  3. What considerations weighed on the Governor when he decided to reserve the bill for consideration by the President?
  1. What is the concept of pocket veto?
  1. What is the effect of the expression ‘shall declare’ used in the substantive part of Article 200? Can a time period be read in Article 200 within which it is expected for the Governor to pass a declaration?
  1. How is Article 200 construed in two scenarios:
  • The bill is presented for assent and upon consideration, the Governor returns the Bill together with a message requesting to reconsider certain aspects of the bill in terms of the first proviso to Article 200?
  • A bill is presented, but upon consideration, the Governor declares he withholds assent. Therefore, the legislature passes the bill and presents it again to the Governor for assent. Is the Governor bound to give assent in both scenarios?
  1. When the President directs the Governor to return the bill and the bill is passed and presented again to the President, how should the President act?
  1. Is the Governor mandatorily required to assent to the bill when it is placed before him for reconsideration or is there a constitutional scheme in Article 201 and if yes, how is the silence to be construed?

    The Bench further recorded that out of the 181 Bills submitted to Governor R.N. Ravi, 152 have received assent, five were withdrawn by the state government, nine were reserved for the assent of the President, assent was withdrawn from another nine Bills, and five Bills received in October 2023 were under consideration.

Dwivedi: The governor is not a super-legislator

Dwivedi referred to the Court’s Order from 10 November 2023, in which the Court remarked that the pendency of the bills with the governor was “a matter of serious concern.” He noted that until the order came out, the governor had been sitting passively on the bills for well over a year.

“And then your Lordship passes this order on the 10th, then he [the Governor] wakes up, and passes all those orders on 13 November, saying that I am withholding [the bills],” Dwivedi stated.

He further asserted that the Governor’s actions were malafide in law and in fact. He noted that the delay of one to three years by the governor even in expressing his decision to withhold assent was malafide. He noted that while the immediate assumption would be to see the issue from the point of view of legal malice, “this [situation] is bordering very close to factual malafide interest.”

Dwivedi pressed that while returning the bill after withholding assent, the Governor is supposed to clearly express the reasons why the bill needs to be relooked. “There has to be something at the end of the Governor to tell the state that I want you to look at it from this angle.” He noted that the Governor was also a part of the governance set-up and a representative of the people in the legislature who had passed the bill. Therefore, he is obligated to carefully apply his mind to each bill brought before him, examine the nature of the bill and then either assent to it, withhold it, or reserve it. If the Governor did not do this, Dwivedi argued, his actions amounted to that of a super-legislator, since he would be sitting in judgement over his own government’s law. He noted that the first or second proviso of Article 200 should not be interpreted in such a way that it “converts the Governor into a super-government or a super-legislature and with an arbitrary power.”

Referring to the first proviso of Article 200, Dwivedi highlighted how the word “message” should be interpreted. He argued that “message” does not mean that the Governor merely communicate that he is withholding assent, but he should also communicate the reason why is withholding it. This way, the legislator would be in a position to understand how the Governor desires the returned bill to look.

Dwivedi noted that if the Governor worried that the bills exceeded the state legislature’s mandate under List II of Schedule VII and breached the Union’s legislative competence under List I, he should have supplied “some strong reason showing that if this is passed, it is unconstitutional.”

Discussing the scope of the second proviso of Article 200, he explained that it an exception to Article 200 since it restricts the power of the Governor. If a bill passed by the legislature derogates the power of the High Court under the Constitution, the Governor is mandated to reserve the bill for consideration by the President. There is no other option.

Rohatgi: Article 200 deliberately departs from the language used in the Government of India Act

The predecessor to Article 200 was Section 75 of the Government of India Act, 1935. Section 75 stated that 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 his message and, when a Bill is so returned, the Chamber or Chambers shall reconsider it accordingly.”

Rohatgi noted that the words “in his discretion” from Section 75 were deliberately omitted in Article 200. Instead, the first proviso was reframed in such a way that it divested the Governor of the power to veto a reconsidered bill (whether the bill was re-enacted in an original or amended form). “So once it is reconsidered then he has no other veto,” he said.

Justice Pardiwala to Union: Governor seems to have adopted his own procedure

Towards the end of the hearings, Justice Pardiwala questioned Venkataramani as to why the Governor had decided to simply sit on the bills for so long.

“What is something so gross in the bills which the Governor took three years to find?” he asked. Justice Pardiwala also asked why the Governor sent the bills for consideration to the President after the legislature sent back the re-enacted bills to him.

Venkataramani responded that the Governor had not sent back the bills for reconsideration to the legislature and had merely stated that he was withholding assent. Justice Pardiwala was quick to explain that both effectively meant the same thing.

As Justice Pardiwala reminded Venkataramani of the state government’s allegation that the Governor’s actions were factually malafide, the latter tried to reason that the bills which removed the Governor from the Chancellorship of state universities were of “national importance.” Justice Pardiwala pointed out the absurdity that even while referring the re-enacted bills to the President, the Governor did so for two of several bills which were re-enacted.

The Court will continue hearing the matter tomorrow.