Pendency of bills before Tamil Nadu Governor | Judgement Summary

Only one out of three options for the Governor 

At the outset, Justice Pardiwala wrote that once a state legislature passes a bill, it has to be mandatorily placed before the Governor for his consideration. On receiving the bill, the Governor may choose only one of the three options under Article 200: grant assent, withhold assent or reserve the bill for the President’s consideration. These options are mutually exclusive.

If the Governor withholds assent, the first proviso of Article 200 kicks in. It requires the Governor to return the bill to the legislature for reconsideration. The state legislature may or may not accept the Governor’s suggestions. Once the bill returns in the second round, the Governor must grant assent and cannot withhold it again.

If the Governor believes that the bill derogates the powers of the High Courts, he may reserve it for the President under the second proviso of Article 200. The President would grant or withhold assent as per Article 201. 

In the present case, Attorney General R. Venkataramani had argued that the Governor can withhold assent without sending the bill back. This would amount to an ‘absolute veto’, causing the bill to lapse without further action by the state. The Tamil Nadu government had opposed this view, citing State of Punjab v Principal Secretary to the Governor of Punjab (2023). In Principal Secretary, the top court held that withholding assent is only valid if the Governor returns the bill to the legislature. Venkataramani had questioned this interpretation and instead relied on Union of India v Valluri Basavaiah Chowdhary (1979), where a Constitution Bench observed that a bill “falls through unless the procedure indicated in the first proviso is followed.”

The Court examined Principal Secretary in light of Valluri Basavaiah Chowdhary. However, the Bench rejected Venkataramani’s argument as “short-sighted” and “half-baked.” It noted that while a state legislature could delay reconsideration of a returned bill, the bill only lapses if the legislature chooses not to act. The prerogative to reconsider lies with the state, not the Governor. If the Governor withholds assent, he must return the bill “as soon as possible.” The Governor does not have the discretion to withhold and sit on the bill without returning it. Hence, he cannot exercise an “absolute” or “pocket veto.” 

Justice Pardiwala found that Valluri Basavaiah Chowdhary reinforced the connection between withholding assent and the procedure in the first proviso. Therefore, Principal Secretary was correct and not per incuriam. He also cautioned that if Principal Secretary were incorrect, it would imply that the Governor could exercise an absolute veto under Article 200.

A bill reconsidered by state legislature cannot be reserved for the President 

Justice Pardiwala held that Article 200 limits the Governor to just one of the three options. Therefore, if the Governor withholds assent to a bill and the legislature reconsiders and sends it back, the Governor cannot reserve it for the President’s consideration. This is because, by withholding assent, the Governor exhausts one of the options under the provision. He wrote that there is a “strict constitutional prohibition against the Governor to not withhold assent.”

However, the Judgement also presented a “possible scenario” where the legislature’s reconsidered bill can be reserved for the President. This could happen when the legislature introduces fresh changes to a bill that are not recommended by the Governor after he returns it. Such a bill must be considered on “wholly different and new grounds.” However, the Bench clarified that if the bill is amended solely on the Governor’s recommendations, the Governor cannot reserve it for the President.

The Court cited this scenario to buttress the point that the first proviso of Article 200 “cannot be construed as giving the State legislature the unfettered power to introduce changes to the bill which alter its very nature” in the second round.

In Tamil Nadu’s case, the Governor withheld assent to 10 bills and returned them without any accompanying message. At that time, the Court had already delivered the Principal Secretary decision, so it was expected that the Governor would send a message. In the absence of such a message, the Tamil Nadu legislature reconsidered the bills in their entirety and sent them back to the Governor. However, the Governor reserved them for the President in the second round. This was not permissible. 

Timelines for the Governor to act on bills

Senior Advocate A.M. Singhvi, appearing for Tamil Nadu, had argued that the phrase “as soon as possible” under Article 200 for granting assent effectively allowed the Governor to sit on a bill indefinitely.

The Bench examined several decisions that dealt with timelines and the interpretation of phrases like “as soon as possible” or “reasonable period”. The Court also noted the recommendations of the Sarkaria and Punchhi Commissions, which suggest timelines for the Governor to grant assent. In light of these, Justice Pardiwala found it necessary to prescribe timelines for the Governor to discharge his duties under Article 200. 

He clarified that prescribing a timeline does not amend the Constitution, as it introduces no underlying change to the procedure under Article 200. “On the contrary, it only reinforces the sense of expediency and urgency” that the provision was meant to signify. Moreover, the timeline, he wrote, does not function as a “hanging sword” over the Governor. Non-compliance would not automatically trigger consequences. Rather, the timeline serves as a guiding prescription.

Any inaction would be open to judicial review, allowing the Governor to justify any delay in granting assent beyond the time limits. These limits prevent the Governor from exercising a pocket veto over bills. If the Governor delays assent out of “reluctance or lethargy,” then aggrieved governments could not be left without remedy. The delay could impede the lawmaking process and even affect the public perception of the elected government in future elections. This, the Court said, posed a serious threat to the “federal polity of the country.” 

The Court prescribed the following timelines, relying on the decision in Keisham Meghachandra Singh v Speaker, Manipur Legislative Assembly (2020) where a limit was prescribed for the Speaker to decide disqualification petitions:

Acts of Governor or President not exempt from judicial review

The Judgement held that the Governor may exercise discretion without the aid and advice of the Council of Ministers in two circumstances. First, when a state bill contains provisions that derogate the powers of the High Courts. Second, where the bill mandates Presidential assent, or when the Council of Ministers cannot function due to a complete breakdown of constitutional machinery.

The Court cautioned that the Governor could “thwart the entire legislative machinery of the State” by reserving a bill for the President and laid out the key issues of consideration:

1. Whether any discretionary action by the Governor under Article 200 is subject to judicial review?
2. Whether the President’s act of withholding assent is also subject to judicial review?
3. If the Governor’s actions are judicially reviewable, whether the discharge of the Governor’s functions remains non-justiciable? 

On this aspect, the Bench noted that neither the Governor nor the President enjoys immunity from judicial review under Articles 200 and 201. Relying on Rameshwar Prasad v Union of India (2006), the Bench reiterated that Article 361, which grants immunity to the constitutional heads, does not bar courts from examining the actions of the Governor.

The Court then addressed whether it was appropriate to review actions of the Governor or President that are primarily political in nature and, therefore, non-justiciable. To clarify this, the Bench cited S.R. Bommai v Union of India (1994), which held that legal questions disguised as political ones are still justiciable. In the present case, the Tamil Nadu government had contended that the Governor’s withholding of assent was politically motivated and not bona fide. In response, Venkataramani had argued that the President’s decision, after the Governor reserved the bills, was non-justiciable under Hoechst Pharmaceuticals v State of Bihar (1983). Justice Pardiwala noted that this position was reinforced in B.K. Pavitra v Union of India (2019), which stated that the Governor’s act of reserving a bill was beyond judicial scrutiny. 

The Bench disagreed with the view in B.K. Pavitra. The absence of judicial review, the Court warned, would effectively shield the Governor’s actions “in a lead casket” that remains impenetrable even in cases of constitutional violation.

On the last question about the President’s grant or denial of assent under Article 201, the Bench acknowledged that such action carries a “political hue,” since the President has the discretion to determine whether granting assent is appropriate in cases involving Union primacy or national policy uniformity. However, when the matter does not involve Union primacy, the President’s action is subject to a higher degree of judicial scrutiny. 

The Bench then summarised its findings: 

• Once the Governor reserves a bill, he must record his reasons and clearly indicate the specific provisions that invoke the second proviso to Article 200, i.e., provisions that derogate the powers of the High Court. This action is justiciable. 
• A competent court may fully adjudicate the matter and approve or disapprove the Governor’s reservation. 
• The court can also issue a writ of mandamus directing the Governor to take appropriate action. 
• This procedure applies equally to bills that require Presidential assent. 
• A state government may approach a court to seek a writ of mandamus if the Governor fails to act within the prescribed time limits.

A timeline for the President 

Under Article 201, the President has only two options: either grant or withhold assent. If the President withholds assent, she may return the bill to the state legislature through the Governor along with a message. The legislature must then reconsider the bill within six months, and once re-enacted—with or without amendments—it is placed before the President again for consideration.

The Judgement held that the President cannot withhold assent without recording reasons in the first or second instance, as the Constitution does not provide for an absolute veto. The President may withhold assent only for those bills that specifically fall under constitutional provisions requiring her assent. However, unlike the Governor, the President is not constitutionally obligated to assent to a bill that is reconsidered. 

The Bench also observed that Article 201 does not specify a timeline within which the President must act on a reserved bill. As a result, if the President does not take action, the bill remains in an “indefinite and uncertain state of abeyance.” While the Court acknowledged that the President’s “consideration” of a bill may not easily be confined to rigid deadlines, it stressed that this cannot justify inaction.

To address this, the Court relied on two memoranda issued by the Ministry of Home Affairs in 2016, which prescribed a time frame for the President to decide on reserved bills. Considering the procedural steps involved, the Bench directed that the President must decide within three months. If the President fails to act within this period, the affected state government may seek a writ of mandamus from the Court.

The Judgement further clarified that any preliminary objections raised through internal communications, as per the memoranda, cannot substitute the formal message that the President is required to send under Article 201. A genuine dialogue must occur between the President and the state government. If the state legislature expresses a willingness to reconsider the bill, it may go through a second round. In this round, the President may either grant assent or withhold it, thus effectively terminating the bill. However, any decision to withhold must rest on clear and sufficient reasons to ensure that it is not equivalent to exercising an absolute veto, as there has been prior deliberation between the state and the Union.

“The whys and wherefores of the President’s actions provide a basis for judicial review and allow the courts to assess the validity of the decision as well as ensure accountability between the three pillars of government” 

Article 142 and the deemed assent 

The Bench held that the Governor’s conduct—first withholding assent without a message, and then reserving the bills for the President after reconsideration—lacked bona fides. “It is difficult for us to repose our trust and remand the matter to the Governor with a direction to dispose of the bills,” the Judgement said.

In view of the unique and prolonged chain of events, the Bench concluded that it was “absolutely necessary and appropriate” to invoke its extraordinary powers under Article 142 of the Constitution to deem the 10 pending bills as having received assent on the date of which it was sent to the Governor in the second round. The provision allows the Court to pass any decree or order to ensure “complete justice”. The Court emphasised that this exercise of Article 142 was not undertaken lightly or routinely, but only after the “deepest of deliberations.” It also declared that any actions by the President on these bills were void ab initio. The President had rejected assent on seven of these bills. 

The Bench justified its decision by highlighting three key factors: the inordinate delay in processing the bills, the Governor’s failure to communicate his reasons for withholding assent, and the improper act of reserving the bills for the President in the second round—a clear breach of the procedure established under Article 200. Under these circumstances, the Court held that it was its “constitutionally bounden duty” to declare the ten bills as having received assent.