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Limits on the Governor’s Power under Article 200: A Case Commentary on State of Tamil Nadu v. Governor of Tamil Nadu

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ABHAY YADAV, Author

A second-year BA.LLB (H) student at the School of Law, IILM University, Greater Noida. Read More

State of Tamil Nadu

v.

Governor of Tamil Nadu & Another

Civil Original Jurisdiction

Supreme Court of India

ABSTRACT

State of Tamil Nadu v. Governor of Tamil Nadu is a case sub judice before the Supreme Court of India, which deals with the constitutional extent of the powers of the Governor while exercising his discretion under Article 200 of the Constitution of India over the grant of assent to Bills enacted by a State Legislature. The case was filed in 2023 under Article 32. The case stems from the inaction of the Governor over twelve Bills, as passed by the State Legislature from 2020 to 2023, followed by the withholding of assent and reserving it for the consideration of the President of India, even after the same were reconsidered and re-enacted by the Legislature. The State has contended that such acts are ex facie violative of the principles of responsible government, federalism, and democratic accountability. It appears that the Supreme Court has made an in-depth analysis of the role of the Governor, the extent of discretion in light of Article 200, and the interaction between the Governor and the Council of Ministers. While relying upon the observations in the Constituent Assembly Debates and earlier landmark decisions in cases of Samsher Singh, Nabam Rebia, and M.P. Special Police Establishment, the Supreme Court held that in general, the Governor is required to function within the advice of the Council of Ministers, and in general, there are no wide discretionary powers of the Governor in light of Article 200, excluding specific jurisdictional circumstances.

Finally, the Hon’ble Court clearly stated that the reservation of ten Bills as unconstitutional and relied on Article 142 of the Constitution to presume the assent of the Bills. This significant decision underscored the role of the Supreme Court of India as a guardian of the constitution to ensure the balanced functioning of the institutions holding the power at the highest level, as well as protecting the will of the democratically elected assemblies at the federal level.

FACTS OF THE CASE

The Legislature of the State of Tamil Nadu, from 13.01.2020 to 28.04.2023, introduced and referred 12 Bills to the Governor for assent under Article 200 of the Constitution. Although the present Governor assumed office with effect from 18.11.2021, he did not take any action in respect of any of the Bills referred to his office until October 2023. This was after the reasonable time within which the Bills had to be acted upon under the Constitution, since there was no immediate reaction to any of the Bills referred to his office. The Governor assumed office on 18th November 2021. Even after taking over, the Bills have been pending without a formal decision. There has been no assent granted, no message returned to the Legislature for consideration, and no reservation made for Presidential consideration. This stalemate has lingered on for almost two years now, and as a result, there has been a serious expression of concern from the State Government on issues of the legislative process.

The State of Tamil Nadu, being aggrieved on a few matters of vital public importance, has resorted to the jurisdiction of the Supreme Court under Article 32 of the Constitution. The writ petition was filed against the failure of the governor to give his assent to the bills passed by the state legislature. Furthermore, matters were raised concerning the failure to give sanction for prosecution, appointment to the Tamil Nadu Public Service Commission, and regarding the matters of pre-release of prisoners. The State of Tamil Nadu said

These constitute delays, affecting governance and impinging on the principles of federalism and responsible government, and bring the constitutional ideals into disrepute. But what is pertinent to note is that, on withholding assent to the ten Bills, the Governor has failed to give any message to the Legislative Assembly to reconsider the bills, as mandated by the first provision of Article 200.

During this session, all ten Bills were again put for reconsideration and subsequently re-passed without any changes and submitted to the Governor again for his assent. During the hearing of the matter before the Supreme Court on the 20th of November, 2023, it transpired that the re-passed bills are pending consideration. Despite that, on 28th November 2023, the Governor reserved all ten re-passed Bills for the consideration of the President.

In his communication to the President, the Governor stated that

Despite the Bills falling within the legislative competencies of the State, he was having certain reservations in terms of repugnancy to Entry 66 of the Union List.

The State argued that such a move was in contravention of the constitutional requirement and amounted to abusing the power of reservation.

During the course of the case, some other disputes arose between the State Government and the Governor, including the refusal of the Governor to administer the oath of office to a Minister whose conviction was suspended by the Supreme Court. These gave rise to filing some more applications before the court.

In view of these developments, the Supreme Court had to assess the whole chain of acts and omissions with a view to finding out whether there was consistency between what was done by the Governor and what was provided for under the Constitution concerning giving assent to Bills and the Governor’s place within a parliamentary system of government.

ISSUES:

ARGUMENTS OF THE PARTIES

PETITIONER

The above-stated case filed by the Petitioner, The State of Tamil Nadu, against the Governor of Tamil Nadu, unfolds the story of the failure of federal governance. Argumenting through their senior counsel, Dr. Abhishek Manu Singhvi, Mr. Mukul Rohatgi, and Mr. P. Wilson, the Petitioner described the “constituential deadlock” in the state, fueled by the alleged failure of the Governor to discharge his duties under the Constitution of India, thereby impelling the necessity of the intervention of the Judiciary to reinstate the primacy of the elected legislative authority.

The Legislative Impasse: The Saga of the Bills (means a long, complicated, and often dramatic sequence of events related to bills)

Primarily, the argument of the Petitioner revolved around the inaction of the Governor of Tamil Nadu with respect to twelve Bills, passed in the Tamil Nadu Legislative Assembly, in the period ranging from 13 January 2020 to 28 April 2023. The petition alleged the inaction of the incumbent Governor, assuming office since the 18th of November 2021, ignoring these drafts of law for years, without choosing any of the options available to him in terms of the provision prescribed under Article 200 of the Indian Constitution.

Dr Singhvi pointed out a series of events that established what he called “malice in law.” After the Supreme Court gave notice on the 10th of November, 2023, the Governor, in what he termed a “hasty act” on the 13th of November, 2023, refused assent to ten bills and reserved the other two for the President, without giving any reason to the Legislature for the rejection. The Petitioner pointed out that the State Legislature moved with speed when it held a special session on the 18th of November, 2023, to re-legislate the ten bills without amendments, and immediately dispatched them back to the Governor.

The Constitutional Violation: Reservation After Re-Passage The Petitioner strongly contended that, thereafter, on 28th November 2023, the Governor’s reservation of these Bills for the President’s consideration was clearly and blatantly unconstitutional. The counsels urged that, under the First Proviso to Article 200, once the Bills were returned by the House, the Governor simply had no option but to grant assent thereto. The Petitioner thus contended that in reserving these Bills in this ‘Second Round,’ because they suffer from repugnancy with Central laws on the subject of University Statutes, was, in essence, seeking to veto the Legislative will, which was clearly beyond the powers vested in the Governor under the Constitution.

Administrative Paralysis: Sanctions and Appointments Outside of the legislative powers, the Petitioner also brought forth the matter of paralysis in the executive administrative system. The Petitioner brought forth the case of the Governor not taking any action on four essential files related to the sanction of public servants charged with corruption cases, the files of which had been pending between 10 April 2022 and 15 May 2023. The State claimed that the Governor’s failure to sanction under the Prevention of Corruption Act was hindering the course of justice. Moreover, the Petitioner has also brought forth the case of paralysis in the case of the Tamil Nadu Public Service Commission (TNPSC), where the Governor not appointing members has resulted in the TNPSC’s skeletal strength and hence a halt in public recruitments. Moreover, the State also brought forth the matter of 580 cases of the premature release of prisoners on the grounds that the Governor has ignored the binding ‘aid and advice’ of the Cabinet in the matter of the prisoners’ release, thereby invading their rights of liberty.

In their closing submissions, the Petitioner counsels argued that it was necessary for the Court to keep in mind that the Governor, as the titular head, cannot function as a “super-constitutional authority,” and certainly cannot be a “rival power center.” Referring to the authority established in the case of State of Punjab, the counsels pleaded that it is “anathema to democracy” to have “pocket veto” on the part of the Governor. The State requested that the Court “turn the clock back,” hold invalid the reservation of the re-passed Bills, and require the Governor to function “within the limitations of the Constitution,” giving effect to the aid and advice of the Council of Ministers, who are bound to be obeyed.

RESPONDENT

The Respondent, the Governor of Tamil Nadu, represented by the learned Attorney General for India, Mr. R. Venkatramani, pursued a robust defense against the allegations advanced by the State of Tamil Nadu with a counter-narrative of constitutional boundaries, the nuanced role of the Governor, and the particular circumstances surrounding the impugned actions. The Respondent argued that the Governor’s actions were not only within the four corners of the Constitution but were necessary exercises of discretion to preserve the sanctity of federal principles.

“Pocket Veto” and Discretionary Power: The interpretation of the powers of the Governor under Article 200 was a pivotal limb of the argument of the Respondent. The contention of the Petitioner that the Governor has no discretion was sought to be firmly rejected by the Attorney General, who stated that the Governor is not a mere “rubber stamp” but a constitutional functionary with a distinct role. While the Respondent accepted the general principle of acting on “aid and advice,” there is no absolute divesting of the Governor of the power to withhold assent or to reserve a Bill, more so, when questions of repugnancy with Central laws are raised.

Addressing the particular complaint of the so-called “pocket veto,” the Respondent argued, with reference to the Constitution, that there is in it no fixed time frame in which the Governor is to respond to the Bills. The “as soon as possible” mentioned in Article 200, they argued, is to be understood in the light of the complexity of the law, and not in the manner of an absolute time frame where the Governor is to give immediate assent.

The Repugnance of the Re-passed BILLS The most disputed point was the Governor choosing to reserve the ten re-passed Bills for the President on 28th of November, 2023, despite the Legislature having re-examined these. The justice for such an action has been sought by the Respondent, claiming these Bills, largely concerning the Statutes of Universities, repugnantly conflicted with Central enacted Legislation, in particular, Entry 66 of the Union List (List I), concerning coordination and determination of standards in Higher Educational Institutions.

The Respondent pointed out that the State’s Bills attempted to dilute the role of the Governor/Chancellor in University appointments, which could compromise academic standards protected by Central laws like the University Grants Commission Act. Thus, the Governor argued that reserving these Bills for the President was not an act of obstruction but a constitutional necessity to resolve this repugnancy. The Respondent maintained that even if a Bill is re-passed under the first proviso to Article 200, the Governor retains the discretion to reserve it for the President if it impinges on Union powers or violates constitutional principles.

Administrative Matters and “Active Consideration” It is next argued that the administrative perspective in relation to administrative cases does not denounce the Respondent for the alleged “inaction.” In connection with prosecution cases, inasmuch as such cases could not proceed, it was contended that the State’s failure to submit complete data was often to be blamed for the State’s inaction. To illustrate, in the case of Thiru K.C. Veeramani, since the State had not submitted a “duly authenticated investigation report,” the State was allowed to resubmit such to correct the defect demonstrated in the case ofThiru K.C. Veeramani, in which the Respondent was required to act upon

Equally so, insofar as the early release of offenders is concerned, statistics were put forward by the Respondent in refuting claims of paralysis. It was pointed out that since taking up his office in September 2021, there had been 580 proposals handled by the Governor, out of which 362 had been approved and 165 rejected. This meant there were merely 53 pending as of late 2023.

Defence Against “Malice” Lastly, the Respondent attempted to throw out the claims for “malice in fact” and “malice in law.” The Respondent, through the Attorney General, contended that the Governor’s actions are in good faith and in furtherance of his constitutional duty. The simple fact that the decisions were given after the Court issued notice did not constitute malice, but simply reflected an updating process for the evolving legal situation. TheRespondent asked the Court to recognise the Governor, not an antagonist to the State, but an essential counterbalance to the federal division, protecting State legislation from crossing the lines within its constitutional limits.

LEGAL ASPECTS INVOLVED IN THE CASE

Article 200 – Assent to Bills (Constitution of India) This Article outlines the powers and options available to a Governor when a Bill passed by the State Legislature is presented for assent. It provides four distinct courses of action: granting assent, withholding assent, reserving the Bill for the President’s consideration, or returning the Bill (if it is not a Money Bill) with a message for reconsideration. Crucially, the first proviso to this Article mandates that if the Legislature re-passes the Bill with or without amendments, the Governor “shall not withhold assent therefrom.” In the present case, this was the central bone of contention. The Petitioner argued that the Governor violated this provision by first “withholding assent” without returning the Bills, and then, after the Legislature re-passed them, reserving them for the President instead of granting the mandatory assent.

Final Judgment and Decision of the Court

The decision in State of Tamil Nadu v. Governor of Tamil Nadu was pronounced by the Division Bench of the Supreme Court of India in a case involving Justices J.B. Pardiwala and Manoj Misra, with J.B. Pardiwala writing the Judgment for the Court. This was in a situation where the Court was faced with a very serious constitutional issue, having to do with the State Legislature being brought to a halt by the actions of the Governor.

After carefully analysing the facts of the matter, the Court made it clear that a

Governor is neither an elective nor a completely non-accountable constitutional institution, but rather a constitutional head of state, whose actions are normally obligatory “on the aid and advice” of a Council of Ministers.

The judges further highlighted that

“Article 200 does not confer an untrammled or personal discretion upon a Governor to prevent or postpone Legislation passed by an elected Assembly.”

Justice Pardiwala stated, “as a matter of fact,” that “our constitutional system does not permit a Governor to ‘sit over Bills’ or keep them pending for an unreasonably long period of time because such actions are contrary to the will of the people manifested through their elected representatives.”

In respect of withholding assent, the Court held,

“If the Governor intends to withhold assent, then the first proviso to Article 200 mandates the return of the Bill to the Legislature with a message of reconsideration. The action of the Governor of withholding assent without any message is, therefore, held to be constitutionally unconstitutional.”

The Court held further,

“Procedures under the Constitution are not discretionary. They have to be followed in the letter.”

A major portion of the judgment related to the reservation of Bills for the President in respect of Presidential consideration after re-passing by the Legislature. The Court held,

“It is clear, therefore, once the Bill is reconsidered and re-passed by the State Legislature, the Governor has no power to reserve the Bill for the President, save in rare, limited, and specific circumstances of the Constitution.”

Justice Pardiwala observed, “If such power is permissible, then the Governor will be able to repeatedly override the will of the Legislature, and that will be against democracy and federal principles.

The Court further unequivocally clarified that the Governor’s conduct, jurisdictionally conferred under Article 200, is amenable to judicial review. Disapproving of the contention that such actions enjoy immunity from review, the Court declared that officials exercising constitutional authority are accountable to the Constitution, and no office escapes judicial review. Importantly, the Court held that some of the earlier judgments in B.K. Pavitra v. Union of India, which indicated a wider scope of gubernatorial powers, was per incuriam because such judgments failed to take into account constitutional precedents such as Samsher Singh and Nabam Rebia.

Finally, in order to avoid any future delay in the Constitution and to translate the legislative will into reality, the Supreme Court relied on its extraordinary powers available under Article 142. The court declared that the Ten Bills, which were repassed by the Tamil Nadu Legislative Assembly, shall be considered to have received the assent of the Governor as from the date they were presented again for consideration.

In conclusion, the Court allowed the writ petition and delivered a strong message that constitutional offices must function within constitutional limits. The judgment stands as a firm reaffirmation of democracy, federalism, and responsible government, ensuring that unelected authorities cannot frustrate the functioning of elected legislatures.

COMMENTARY

The judgment of the Supreme Court in the case of “State of Tamil Nadu vs. Governor of Tamil Nadu” is an important constitutional judgment, and it relates to an area where there had been ambiguity and tension emerging gradually. From an objective academic perspective, the judgment is somewhat in line with the stand of the State, as well as an interpretation regarding the role of the Governor under the Constitution.

The point at issue between the parties is not a political dispute but an imbalance in the Constitution. The failure of the Governor to take action on Bills passed by the State Legislature constituted a situation of stalling of legislative proceedings. The Legislature in a democracy is representative of the popular will. If there is an impediment in its working, there would be grave implications under the Constitution. The Supreme Court has rightly highlighted that delays would erode the authority of elected bodies and would cause an imbalance in the federal structure under the Constitution.

The Court’s observation regarding the Governor acting on the aid and advice of the Council of Ministers is in line with the traditional values of the Constitution. The Court, through this judgment, has made it clear that the Governor is the constitutional head and does not hold parallel power, which gives clarity to Article 200 and is particularly significant because, of late, the lack of clarity on the role of the Governor has encouraged conflicts between the Raj Bhavans and the State administrations. The Court has made it clear that constitutional powers have to be exercised within defined parameters so that the role of the Governor is neutral and non-political.

Nevertheless, the decision does not make the Governor a rubber stamp. The decision recognises the role given to the Governor in the constitutional scheme, particularly in situations where there are genuine constitutional considerations. These, however, should be dealt with in a manner prescribed by the Constitution, for instance, by the Governor forwarding a Bill with reasons for reservations or by the Governor not exceeding a certain timeframe after the reservations. Importantly, the Court’s decision not to allow post-reconsideration reservations in Bills further ensures that the Governor does not consistently override the decisions of the legislature, while allowing for the exceptional role in situations where the Constitution permits the Governor to act in that manner. Overall, the decision is a clear message to all constitutional functionaries in the Indian constitutional system. The decision emphasises the importance of constitutional morality, accountability, and democratic institutions’ integrity in the proper functioning of the constitutional system.

In conclusion, this judgment strikes a careful balance between authority and restraint. It supports the State’s position while preserving the dignity of the Governor’s office. Most importantly, it reinforces the constitutional essence that governance in India must be guided by democratic will, federal balance, and faithful adherence to constitutional procedures.


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