Pendency of Bills in Tamil Nadu | Day 10: Supreme Court reserves judgement
Pendency of bills before the Governor of KeralaJudges: J.B. Pardiwala J, R. Mahadevan J
On 10 February, a Division Bench of Justices J.B. Pardiwala and R. Mahadevan reserved judgement on the plea filed by the Tamil Nadu government against state Governor R.N. Ravi for delaying his assent on various bills, over a period of three years. These include bills that take away the Governor’s Chancellorship position in government universities. The hearings have surrounded the interpretation of Article 200 of the Constitution which deals with the Governor’s assent to bills forwarded by the legislature.
Attorney General R. Venkataramani and Additional Solicitor General of India Vikramjeet Banerjee appeared for the Governor, and the Union respectively. Senior Advocate Rakesh Dwivedi appeared for Tamil Nadu.
The Tamil Nadu government revisited the Constituent Assembly Debates to deliberate the scope of power and ‘discretion’ available to the Governor under Article 200. Dwivedi argued that accepting that the Governor had discretion would result in a violation of the basic structure doctrine. Venkataramani contended that the Governor had implicitly let his objections to the bills known to the state government over a series of communications.
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.
Dwivedi: Clear that Governor no longer vested with discretion, as per Constituent Assembly Debates
Previously, Senior Advocate Mukul Rohatgi had referred to Section 75 of the Government of India Act, 1935 which dealt with the Governor’s assent on state bills. He had contended that ‘discretion’ in Section 75 was intentionally omitted from Article 200 to “divest” the Governor’s power to veto a bill.
Yesterday, Dwivedi argued that Draft Article 175, which was later included in the Constitution as Article 200, granted the Governor discretion to return a bill with a recommendation, including money bills. But the Governor could only return a bill if the State had a unicameral legislature, which indicated that “in a responsible government, there can be no room for the Governor acting on discretion.” Subsequently, a new proviso removed the words “in his discretion” and also stated that the Governor cannot return a money bill.
He pointed out that the support for removing the Governor’s discretionary power was led by T.T. Krishnamachari, who believed that the Governor could only “act on the advise of the Ministry”. Krishnamachari pressed that Article 200 was only a “saving clause” to ensure that the legislature did not act hastily on the basis of popular opinion. This view contrasted that of Dr. B.R. Ambedkar who raised objections against the removal of the Governor’s discretion to veto a bill. Ambedkar viewed the veto power as a “potential check on disruptive legislative tendencies”. He noted that the veto power of the Governor and the President was crucial to moderate and regulate “this new experiment of Parliamentarianism.”
Later in the hearings, Dwivedi noted that Ambedkar’s position on the Governor’s discretion was an ‘originalist’ understanding suited to the context in which the Constitution was being framed. The present-day circumstances have changed, he said.
Dwivedi: Federalism and parliamentary democracy are part of the basic features of the Constitution
Dwivedi argued that Ambedkar’s ‘originalist’ view was subsequently countered in Keshavananda Bharati v Union of India (1973), where the Court carved out the basic features of the Constitution. In that case, the Court had noted that ‘federalism’ and ‘supremacy of parliamentary democracy’ were part of the basic structure. This indicates that any construction of Article 200 in favour of the Governor’s discretion would violate the basic structure doctrine.
Dwivedi listed out a series of important decisions where originalist positions were rejected to develop upon the basic structure’s aspirations. For instance, the test of ‘manifest arbitrariness’ to assess violations of Article 14 was not originally foreseen by the framers.
He concluded that interpreting the Governor as having discretion could lead to situations where the Governor exploits his power. He may withhold assent in particular situations where his intentions would be informed by extra-legal or political considerations. Dwivedi also argued that it would be extremely difficult to adduce evidence to establish malafide intention in such situations.
He noted that this would be a problem particularly as there are no guidelines regarding what type of situations would result in a withholding of assent. “Then we are in the dark,” he exclaimed.
Venkataramani: Governor sent various communications about the bill to the state government
Throughout the hearings, Justice Pardiwala pushed Venkataramani to explain why the Governor never communicated with the state legislature regarding his reasons for withholding bills. Venkataramani responded that the Governor did indeed communicate over the aspect of the bills that restricted his position as Chancellor of state universities.
Even as the bills were under consideration of the Governor, he wrote various letters to the state government indicating his interest to participate in the selection process for appointing Vice Chancellors of these universities, something the bills particularly restricted him from doing. However, no specific or coherent objections were raised in these letters. Nonetheless, Venkataramani asserted that these construed indirect communications between the Governor and the state government.
He further argued that the bills which took away the Governor’s power in appointing Vice Chancellors was repugnant in nature, and thus violative of Article 254. He stated that the bills would lead to maladministration of universities, and “impede the avowed object and purpose of excellence in higher education, placing all power in the hands of the State Government, as opposed to the Chancellor.”
In reference to the mode of communication, Venkataramani argued that the Constitution did not require the Governor to communicate in a “particular form of declaration.” He noted that the Governor had not deviated from the general practice and that the communication was “made in accordance with the convention of practice of returning the bills.”
The Court concluded hearings for the case and reserved judgement. It also directed the counsels to file their written submissions within three weeks.