Pendency of Bills in Tamil Nadu | Day 7: Governor cannot withhold assent after state legislature re-enacts the bill, Tamil Nadu argues
Pendency of bills before Tamil Nadu GovernorJudges: J.B. Pardiwala J, R. Mahadevan J
On 4 February 2025, a Division Bench of Justices J.B. Pardiwala and R. Mahadevan heard arguments on the scope of Article 200, which deals with a Governor’s assent to state bills. The Tamil Nadu government had approached the top court citing delays in the assent of bills by the Tamil Nadu Governor R.N. Ravi.
Senior Advocates Mukul Rohatgi, A.M. Singhvi and P. Wilson appeared for the Tamil Nadu government. Rohatgi argued that after a Governor withholds a bill if the state legislature repasses it, the Governor has no option to block it again. Singhvi added that the Governor is obligated to communicate his intention to withhold the bill “as soon as possible”. Wilson relied on State of Punjab v Principal Secretary to the Governor of Punjab (2023), where the Supreme Court held that a Governor must return a bill for reconsideration after they have withheld it. Article 200 does not expressly state the course of action following the withholding of assent by 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.
Rohatgi: If the Governor does not assent to re-enacted bill, the democratic system fails
Rohatgi argued that the Governor has only two options under Article 200: either withhold assent or send the bill to the President for consideration. The Governor cannot do both, he submitted. In this instance, as argued by Singhvi in December 2023, the Tamil Nadu assembly had re-passed bills withheld by Governor Ravi. However, these bills were subsequently shared with the President.
The President is not obligated to grant assent within a particular time period. This is settled in law and as reiterated in 2023, when a bill is passed again by the state legislature the Governor cannot withhold assent. Rohatgi argued that such a manoeuvre by the Governor would be a “subversion” of the Constitution.
Rohatgi pleaded that the Court should observe that the Tamil Nadu Governor acted in violation of Article 200. Justice Pardiwala questioned what might be the Governor’s alternate route if a re-enacted bill is unsatisfactory. Rohatgi explained that the legislature can deliberate on the reasons the Governor provided for withholding assent. Based on the discussion, the legislature can re-enact the same bill or its amended version.
Singhvi: The Governor’s reservation against the bill does not bind the legislature
In the same tune as Rohatgi, Singhvi submitted that the Governor can either assent to the bill or send the bill for consideration to the President.
A third approach is to send the bill back to the legislature for reconsideration, colloquially termed as “withholding of assent.” He noted that the first proviso of Article 200 stipulates “if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.” This clearly indicates that the Governor’s message when he withholds assent is recommendatory in nature and does not bind the state legislature, he explained.
He also argued that the phrase “as soon as possible” in the first proviso indicates a “constitutional imperative of expedition.”The Governor has to expeditiously communicate to the legislature warranting reconsideration of the bill. He commented that constitutional language was not merely “surplusage.” Singhvi cited the example of certain bills passed by the state legislature which had been sitting with the Governor for nearly three years. Others have been delayed for one or two years.
Referring to the second proviso of Article 200, Singhvi stated that the Governor can only send a re-enacted bill to the President in instances where the bill derogates the power of High Courts. He argued that the Governor, on 28 November 2024, sent more pending bills to the President even though he had withheld assent. This was done even as the matter was sub-judice.
“He is creating a new Constitution for himself,” Singhvi argued.
Wilson: The Court’s judgement on the Punjab Governor’s case must be relied on
Wilson reiterated that the Constitution, in the first proviso of Article 200, had contemplated situations where the Governor could lock the bill in a “cupboard.” The first proviso obligates him to send back the bill with reasons to the legislature. “If you withhold, the withholding cannot be [such that it is perpetually locked up],” he argued. He noted that there was no contingency by which the Governor could sit on a bill in perpetuity. He noted that the Court’s judgement in Principal Secretary to the Governor of Punjab (2023) was “bang on” correct.
He also raised concern that nearly ten universities in Tamil Nadu have been operating without Vice Chancellors as crucial bills for regulating universities are stuck with the Governor.
The Court noted that the matter will be next heard on 6 February 2025, wherein it will hear the arguments of Senior Advocate Rakesh Dwivedi arguing for the Tamil Nadu government, and Attorney General R. Venkataramani, for the Governor.