The Position of Governor

The State of Tamil Nadu has been witnessing a confrontation between the elected government and the State Governor on the question of giving assent to the National Eligibility cum Entrance Test (NEET) Bill (linked to an all India pre-medical entrance test) passed by the State Assembly.

Giving assent to a Bill passed by the legislature is a normal constitutional act performed by the Governor. But of late, even such normal acts have become a source of confrontation between State governments and the Governors.

On the advice of Ministers

• The position of a Governor in the constitutional setup in India needs to be clearly understood in order to grasp the significance of the actions.
• The Governor is an appointee of the President, which means the Union government. Although Article 154(1) of the Constitution vests in the Governor the executive power of the State, he is required to exercise that power in accordance with the Constitution. In other words, the Governor can act only on the aid and advice of the Council of Ministers. 

Governor is only a constitutional head and the executive power of

the State is exercised by the Council of Ministers. In Shamsher Singh

vs State of Punjab (1974), the Supreme Court had clearly affirmed

this position in the following words: “We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executives and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well

known exceptional situations”.

Dr. Ambedkar explained the position of the Governor in the Constituent Assembly as follows: “The Governor under the Constitution has no functions which he can discharge by himself: no functions at all.”

The Sarkaria Commission restates this position in its report, “it is a well-recognized principle that so long as the council of ministers enjoys [the] confidence of the Assembly its advice in these matters, unless patently unconstitutional, must be deemed as binding on the governor”. In 2016, a five-judge constitution Bench of the Supreme Court (the Nabam Rebia case) reaffirmed the above position on the governors’ powers in our constitutional setup.

Article 200 of the Constitution provides for four alternative courses of action for a Governor when a Bill after being passed by the legislature is presented to him for his assent. 

• Assent of the Governor or the President is necessary for a Bill to become law. 
• The Governor can give his assent straightaway or withhold his assent.
• He may also reserve it for the consideration of the President, in which case the assent is given or withheld by the President. 
• The fourth option is to return the Bill to the legislature with the request that it may reconsider the Bill or any particular provision of the Bill. 
• The Governor can also suggest any new amendment to the Bill.

In this case the Governor of Tamil Nadu returned the NEET Bill to the Assembly for reconsideration of the Bill. Accordingly, the Assembly held a special session in the first week of February and passed it again and presented it to the Governor for his assent. He has not assented to the Bill so far.

But sitting on the Bill after the Assembly has passed it again and sent it to him is impermissible under the Constitution. Article 200 (proviso) clearly says that when the Assembly reconsiders the Bill on the recommendations of the Governor and presents it to him, he shall not withhold assent. The Constitution makers could never have intended that the Governor could sit on a Bill passed by the legislature for as long as he wants and take advantage of the absence of any specific time frame.

The words used in Article 200 “… it shall be presented to the governor and the governor shall declare….” indicates that the Constitution requires the Governor to act without delay upon the presentation of the Bill.

In Article 200, it is clear that the Constitution does not permit the Governor to sit on a Bill after the Assembly re-submits it to him after reconsideration.

An undemocratic option

Giving assent to a Bill passed by the legislature is a part of the legislative process and not of the executive power. But the Constitution has by providing for definite options made it obligatory for the Governor to exercise any of those options without delay. Withholding of assent, though an option, is not normally exercised by Governors because it will be an extremely unpopular step.

In the United Kingdom it is unconstitutional for the monarch to refuse

to assent to a Bill passed by Parliament. Similarly, in Australia, refusal of assent to a Bill by the crown is considered repugnant to the federal system.

In our constitutional system, the Governor or the President is not personally responsible for their acts. It is the elected government that is responsible. Under Article 361, the President or a Governor is not answerable to any court for anything done in the exercise and performance of their powers and duties. But when a Governor does not take any decision on a Bill which is put up for his assent, he is not acting in exercise and performance of the duties cast upon him.