Power Play: the debate over the Governor’s Authority

In a rather startling judgment, the Hon’ble Supreme Court has ordered that bills pending before a Governor should be sent for approval for a second time by the cabinet. The apex court suggested that the state cabinets must resend the bills to the Governors, to put pressure on them to take a decision.

The judgment expressees concern about Governors delaying or withholding assent for bills passed by the state legislature. The judgment touches on the balance of power between the executive, legislative, and judicial branches.

The impact of the judgment will depend on its implementation and the response of state governments and Governors.

To put things in perspective, the Tamil Nadu Governor, R N Ravi has been delaying assent on several bills passed by the state legislature. According to recent developments, the Supreme Court reportedly “pulled up” the Governor for “sitting over” 10 bills for years, terming his actions “illegal and erroneous”. The court ruled that the Governor’s decision to reserve these bills for the President’s consideration was in contravention of constitutional provisions.

Significantly all these bills relate to appointment of vice chancellors of universities. The state government wants the chief minister to be chancellor of universities and not the governor.

Bengal’s Mamata Banerjee too wants the same.

Given the fact that vice chancellor’s post is sold for anything between 5-10 crores, a corrupt, illiterate or semiliterate chief minister would easily sell them. It is common knowledge that an illiterate, unlettered, uneducated, uneducable, corrupt scum can become a chief minister, if elected. But a professor should be a scholar (PhD) in respective subjective and post doctorate thereafter to sit on the vice chancellor’s chair.

Before going into certain constitutional issues let’s examine this issue. The appointment of vice chancellors is normally done by the chancellor, who is the governor of the respective state. However, the chief minister concerned, with a pliable, amenable governor, can share this money with many including the governor. This has been happening for years. Now with this judgment the CMs need not share this money with anyone including the Governor.

A few years back one fellow was lobbying for himself for the post of VC. He was willing to cough-up over 2 Cr. But no chance. It was too low. If this were VC’s price tag, PhDs and post doctorates are another ball game or wager game. Like many other degrees.

Now let’s come to the reasoning of the Hon’ble Supreme Court. Article 142 of the Constitution of India that empowers the Hon’ble Supreme Court (SC) to do “complete” justice. Hon’ble Justices J.B. Pardiwala and R. Mahadevan have declared that “under Article 142 of the Constitution for the purpose of declaring these ten Bills as “deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023.”

When the cabinet sends a bill for second time the President has to give assent for notification in the gazette. Using or misusing it, many state governments with majority send the bill to the governor for assent for the second time.  But the subtle difference is not kept in mind. If the bill pertains to a central subject, the governor concerned has to refer it to the Hon’ble President. This is what exactly happened in case of Tamil Nadu governor R.N.Ravi, as the bills pertain to universities, under the UGC.

However, a bench of Justices J.B. Pardiwala and R. Mahadevan, by ordering that the bills be deemed to have got the assent, transgressed, rather usurped the powers of the governor. Justice Mahadevan just signed on dotted lines as his senior, the presiding judge Justice Pardiwala, wrote the judgment.

Does it befit the Apex Court to settle the issue of:

1. A time limit by which a governor or the president should give assent or reject a bill;

2. If denied the reasons thereon;

3. If it pertains to a central subject the right of the governor to refer it to the president;

However, if it fixes a time limit, the question would be “within what period a judgment should be delivered”?.

Take the case of a school teacher who retired and left for the heavenly abode by the time the judgement was pronounced. A press baron was quoted as saying “you would sue me … !!? your grandson and my grandson would be fighting that case”. So, it would have been better, if the judiciary when ordering that the president or governor to give assent to a bill gave them a period of 3 months to give a judgment one way or the other.

Justice Pardiwala, writing the judgment for the bench points out that once a state legislature passes a Bill, the Governor’s role under Article 200 of the Constitution is limited to three clear options: granting assent, withholding assent, or reserving the Bill for the President’s consideration.

But can the Hon’ble Judges say that the bills are deemed to have got the assent? Would not it tantamount to usurping the powers of a governor? The other judge on the bench, Mahadevan could have raised this point. He is supposed to be as knowledgeful as Justice Pardiwala.

In this context, the bench prescribed specific timelines within which the Governor must act, while exercising powers under Article 200. If the Governor decides to withhold assent or reserve the Bill for the President—on the advice of the Council of Ministers—such action must be taken within one month.The court clarified that under Article 200 of the Constitution, the Governor does not possess absolute discretion and must act on the aid and advice of the council of ministers.The court specified that the Governor must take a decision on bills within one month, and reserving a bill for the President’s consideration can only be done at the first instance

• If the Governor withholds assent contrary to the advice of the Council of Ministers, the Bill must be returned to the legislature within three months.
• If the Governor reserves the Bill for the President, again contrary to advice, this too must be done within three months.
• If a Bill is re-passed and re-presented by the legislature, the Governor must grant assent within one month.

Will your lordships follow this time limit for cases pending for ages?

Currently, a similar case remains pending against the Kerala Governor before a bench led by Justice P.S. Narasimha. The timelines prescribed by the Justice Pardiwala-led bench will no doubt have a bearing on the pending matter, as it has to be better decided by a Constitution Bench comprising minimum of five judges. Not by a regular bench of 2 or 3 judges.

In this context it is pertinent to look into what the vice president Dhankar has stated. That a “nuclear missile” cannot be sent just like that. It is said in many Indian languages that to remove a thorn from the leg Axe is not used. Just a needle or a pin is enough. However, by assuming the role of a constitutional authority, another constitutional authority has transgressed. Perhaps this is aberration of democracy.