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‘The judgment says that if the Governor decides to withhold assent, he has to ship it again to the Meeting instantly for reconsideration’
| Photograph Credit score: V. SUDERSHAN
In a landmark judgment delivered on November 10, 2023, within the State of Punjab vs Principal Secretary to the Governor of Punjab and One other, the Chief Justice of India (CJI), D.Y. Chandrachud, gave a artistic interpretation to Article 200 of the Structure of India which pertains to the choices earlier than a Governor when a Invoice, after being handed by the State Legislature, is offered to him for his assent. The brand new interpretation pertains to the actual which means of the primary proviso to Article 200 which says that the Governor could ship the Invoice again to the Meeting with a request for re-consideration of the Invoice as an entire or sure provisions thereof.
It additional says that if the Meeting after such re-consideration passes the Invoice with or with out the amendments, the Governor shall not withhold assent from the Invoice. There was a substantial quantity of confusion concerning the which means of Article 200 and this proviso. A lot of the commentators of the Structure, like D.D. Basu and others, have held the view that the Governor’s energy to withhold assent beneath this Article has a finality about it, and as soon as assent is withheld, the Invoice dies a pure loss of life. They have been additionally of the view that the choice of sending the Invoice again to the Meeting for reconsideration beneath the primary proviso is discretionary and never obligatory. Thus, there was a presumption that the Governor’s energy to withhold assent from a Invoice is absolute.
Emphatic in saying ‘no delay’
However the CJI by linking the withholding of assent with the sending of the Invoice again to the Meeting for reconsideration has just about knocked out the choice of withholding assent. The judgment says that if the Governor decides to withhold assent, he has to ship it again to the Meeting instantly for reconsideration, by which case he has no different possibility besides to provide assent. For sure that by means of his judgment, the CJI, in a far-sighted strategy, has protected the rights of the legislature within the matter of legislation making, and in reality the whole constitutional system from the depredations of unelected Governors.
Nonetheless, the woes of State governments aren’t over but. It has been widespread apply by some Governors to not take any choice on the Payments despatched to them for assent. They’ve been sitting on Payments for 2 or three years, just about negating the legislative workouts of the State. The Supreme Court docket of India has within the Punjab case stated emphatically that Governors can’t delay the choice on the Payments. Thus, the choice of the highest courtroom has introduced higher readability to Article 200 and Governors should rapidly take a choice on the Payments.
On Payments for the President’s consideration
However there may be nonetheless an space which might be exploited by the Governors to frustrate the law-making train of State governments. Reserving a Invoice for the consideration of the President is an absolute possibility nonetheless obtainable to a Governor. The essential query is on what sorts of Payments a Governor can ship to the President for his consideration. The second proviso to Article 200 mentions one type of Payments that are mandatorily to be reserved for the consideration of the President. These are Payments which derogate from the powers of the Excessive Court docket in such a manner as to hazard the constitutionally designed place of that courtroom. So, the Structure requires the Governor to ship all such Payments for the consideration of the President. Since consideration by the President means consideration by the Union authorities, the officers of the Residence Ministry will in impact determine the destiny of such Payments.
The Structure the truth is doesn’t consult with any class of Payments other than the Payments talked about above which might be despatched to the President for his assent. Due to this fact, taking a floor view, the Governor can use his discretion to ship any Invoice to the President. In truth that’s exactly what the Governor of Kerala, Arif Mohammed Khan, did the opposite day. He didn’t act on eight Payments that have been with him for over two years. When the Supreme Court docket took up the Kerala authorities’s petition difficult the Governor’s inaction, he gave his assent to at least one Invoice and despatched the seven Payments to the President for his consideration. The Court docket, it’s realized, goes to look at this concern — specifically, what Payments might be reserved for the consideration of the President. The Tamil Nadu Governor despatched 10 Payments for reconsideration by the Meeting after many complaints by the State authorities. The Meeting after reconsideration despatched the Payments to the Governor with out accepting any amendments. However in an odd act the Governor despatched all these Payments to the President for his consideration which is patently towards the Structure. Article 200 (First proviso) requires him to provide his assent to the Payments.
So, the query of essential significance within the current political context is whether or not a Governor can reserve Payments for the consideration of the President at his discretion. The Structure is silent on this. It makes solely an oblique reference to the reserving of Payments for the consideration of the President in two locations. Article 213 offers with the ordinance-making energy of Governors. Below this provision, in sure instances, the Governor can promulgate an ordinance solely with instruction from the President. Below clause (b) of the above Article, the Governor can promulgate an ordinance solely with directions from the President in a case the place he would have deemed it vital to order a Invoice containing the identical provisions as within the ordinance. The phrases “deemed it vital” point out the making of judgement by the Governor when it comes to the constitutional scheme of the ability of legislative division. In different phrases, the Governor can’t act on his whims whereas deeming it vital to order the Payments.
Concern of State topic
The second place the place the Structure makes an oblique reference to the President’s assent to a State Invoice is in Article 254. Below clause (2) of this Article, a State legislation on an merchandise within the Concurrent Listing will prevail in that State even when it incorporates a provision repugnant to the provisions of an current central legislation if it has been reserved for the consideration of the President and has obtained his assent. This is able to imply {that a} Invoice on a Concurrent topic might be or must be despatched to the President for assent provided that it incorporates provisions repugnant to an current central legislation. However it doesn’t point out that each Invoice on a concurrent topic ought to be despatched to the President for assent.
In truth the President has no jurisdiction to scrutinise and provides assent to a Invoice completely on a topic within the State Listing due to the federal scheme of legislative division. Due to this fact, it could appear that if the Governor sends a Invoice on the State’s matter to the President, it could be an abdication of the constitutional responsibility of a Governor.
So, from the above evaluation, it may be concluded {that a} Governor can’t ship to the President for assent Payments that are completely on the State topic. Additionally, he can’t ship Payments on concurrent topics if they don’t include provisions repugnant to the central legislation. If the Governor thinks {that a} Invoice incorporates unconstitutional provisions, the one possibility for him is to ship it again to the Meeting for reconsideration. A Governor is just not personally chargeable for something accomplished by the federal government. Additional, constitutional validity of a legislation is determined by the courtroom and neither the Governor nor the President has any jurisdiction over it.
P.D.T. Achary is former Secretary Normal, Lok Sabha
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