In Defence of Parliamentary Democracy – AILAJ Statement on  Supreme Court’s Order on Governor's Powers Over State Bill

As far back as 1979, a Constitution Bench of the Supreme Court in Hargovind Pant v. Raghukul Tilak [1979 AIR 1109] had held that the Governor “…is not amenable to the directions of the Government of India, nor is he accountable for them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State…”. 

However, far from this constitutional formality, is the growing politicisation of the post of the Governor and the contestation over its powers. Since coming to power, the BJP, has effectively enhanced the power of the Executive by weaponizing the Governor’s office to frustrate the functioning of elected Opposition State governments in a veritable undermining of the federalism. In fact, the Governor’s post has become a post-retirement political carrot for Supreme Court judges, which weds the assault on the independence of the judiciary with the politicisation of the post of the Governor. In the Constitutional scheme of affairs, the office of the Governor, being the nominal head of the State, has select executive powers and acts only on the advice of state governments. Previous governments too, particularly of the Congress, have misused the office of the Governor to undermine the authority of Opposition-led State Governments. However, what we have witnessed over the past 10 years of Modi rule is something altogether different with the complete entrenchment of the ruling Party in the office of the Governor. The extreme partisanship with which the Governors have conducted themselves, have finally led to the series of cases by Opposition-led State governments of Punjab, Tamil Nadu, Kerala and even Delhi (against the Lieutenant Governor) to approach the Supreme Court for relief. 

In this context the Supreme Court has passed an important judgement in the case filed by the AAP-led Punjab State government (State of Punjab vs Principal Secretary to the Governor of Punjab and Another – W. P. No. 1224/2023), against the actions of the incumbent Governor Banwarilal Purohit of withholding assent to four Bills which were passed by the Vidhan Sabha. In this judgement (dated 10th November 2023 but uploaded on the Supreme court website on 23.11.2023), the Supreme Court has essentially declared that Governors do not have the power to hold onto a Bill passed by the Legislature, and if the Governor decides to withdraw assent to the Bill, then he ought to return the Bill to the Legislature for reconsideration.

Of course, these are not the first cases alleging interference by the Governors that have reached the Supreme Court. The Supreme Court in its historic judgment by a nine-judge Bench in S. R. Bommai Vs Union of India (AIR 1994 SC 1918) had dealt with the arbitrary dismissal of State governments, on the reports of pliable Governors under Article 356, by hostile Union government. The Supreme Court in the said judgment, took strong exception to dismissal of duly elected State governments on the basis of subjective reports by the Governors, which failed to discharge their actions in keeping with the posts of high constitutional functionaries that they held. The Supreme Court noted that the founding fathers deliberately avoided election to the office of the Governor to insulate the office from linguistic chauvinism, and the office of the Governor, therefore, is intended to ensure protection and sustenance of the constitutional process of the working of the Constitution by the elected executive. The Court also noted Gandhiji’s opinion that: "The Governor had been given a very useful and necessary place in the scheme of the team. He would be an arbiter when there was a constitutional dead-lock in the State and he would be able to play an impartial role. There would be administrative mechanism through which the constitutional crises would be resolved in the State." 

However, the office of the Governor continued to be behave as a tool of the ruling party at the Centre. In the Modi era, it has degenerated even further in failing to ensure the protection and sustenance of the constitutional process of the working of the Constitution in the State playing an impartial role in a non-partisan attitude. Importantly, the Governors have taken to withholding assent to Bills passed by the State Legislatures, which has led to petitions being filed in the Supreme Court, and this recent judgment of the Supreme Court finally addresses the important question of the powers of the Governor in dealing with Bills duly passed by State Legislatures.

Article 200 of the Constitution, which provides that when a Bill passed by the State Legislature is presented to the Governor, s/he has three options -  grant assent, withhold assent or reserve the bill for President's consideration. The proviso to Article 200 says that Governor may return a bill to the assembly along with a message of aspects requiring reconsideration and if the House adopts the bill again, whether with or without amendments, then the Governor will be bound to grant assent. However, there was a lack of clarity on the course of action when the Governor decided to withhold assent to the Bills. BJP-appointed Governors were utilising this loophole to keep such Bills pending without any further action, thus interfering with the law-making powers of the Legislature. This loophole stands plugged as the Supreme Court has now held as follows: "If the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso".

In arriving at this conclusion, the Supreme Court observed that the Governor cannot exercise its powers to thwart the normal course of law-making by the State Legislatures. It is also observed that if the Governor is allowed to withhold bills passed by the State Legislatures without returning them for reconsideration, then that would allow the Governor “as the unelected Head of State” to be in a position to “virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse”, and this would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.

In what can only be seen as a censure of the BJP-appointed Punjab Governor, the Supreme Court has reiterated that Governors are unelected heads of the State whereas in a Parliamentary form of democracy, the real power vests in the elected representatives of the people. This judgment notwithstanding, it is time for a long-term solution to the politicisation of the office of the Governor, which hinders the functioning of elected governments and goes against the spirit of cooperative federalism. A possible start could be discussions around the recommendations of the Government of India constituted “Commission on Centre-State Relations” (Justice Madan Mohan Punchhi Commission), including that the incumbent should stay away from active politics (even at a local level) for at least two years prior to their appointment as Governor, and that a State's Chief Minister must have a say in the appointment of the Governor.