If an elected government cannot legislate, it could lead to a breakdown of parliamentary democracy

If an elected government cannot legislate, it could lead to a breakdown of parliamentary democracy

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Recently issues have arisen in various States between Chief Ministers and Governors, with regard to the passing of Bills. 

Chief Ministers feel that Governors have not acted for an unduly long period of time on Bills presented for their assent. 

This is a tricky situation for a parliamentary democracy, where the people elect a government to enact laws which reflect their will. If an elected government cannot legislate, it could lead to a breakdown of parliamentary democracy.

Governor’s role

The Legislature of a State 

comprises the Governor and the Legislative Assembly (if the State has one House) and a Legislative Council (if the State has two Houses). 

The Governor 

has little autonomy in his functioning — he can act only on the “advice” of his Council of Ministers, with the Chief Minister as the head of the Council. 

The intention of the framers of the Constitution was for the President or Governor to act only on the advice of the Council of Ministers. 

Actual governance of the country/State is by the Prime Minister or the Chief Minister as the case maybe.

 Governor can exercise his discretion 

1 There are certain instances where a Governor can exercise his discretion independent of the Council of Ministers. 

2 Whether a Governor has discretion or not in a particular matter is significant since, as per Article 163(2) of the Constitution, this decision of his cannot be challenged. 

3 In Shamsher Singh v State of Punjab (1974), the Supreme Court held that a President or a Governor can exercise their discretion independent of their Ministers only where the Constitution expressly permits them to do so.

Article 200 

1 says that when the Governor is presented with a Bill, he can either give his assent or withhold it or return the Bill with certain suggestions. 

2 The first proviso of the Article states that after a Bill is presented to him, the Governor may, as soon as possible, return the Bill if it is not a Money Bill with a message to reconsider the Bill as a whole or any part thereof / him. 

The House has six months to decide whether or not to accept this request. 

Once the House returns the Bill to the Governor, he has no choice but to give his assent whether or not his recommendations have been accepted. 

3 The second proviso              of the Article gives the Governor discretion to refer a Bill to the President if he is of the opinion that the Bill, if passed, would take away the powers of the High Court उच्च न्यायालय की शक्तियां छीन ली जाएंगी .

 The procedure to be followed when presidential assent for such a Bill is required is set out in Article 201 of the Constitution.

indefinite withholding of assent to a Bill 

The discretion of the Governor does not  indefinite withholding of assent to a Bill. Such an action would cause a breakdown of the constitutional machinery. 

To what extent the Governor’s autonomy is recognised under the Constitution can be seen from a few judgments of the Supreme Court.

Governor’s autonomy

In Purushothaman Nambudiri v State of Kerala

while deciding whether a Bill pending the Governor’s assent would lapse upon the dissolution of the House, the Court considered the provisions of Article 200 and 201 to hold that it would not. 

यह निर्णय लेते हुए कि राज्यपाल की सहमति के लिए लंबित कोई विधेयक सदन के भंग होने पर व्यपगत हो जाएगा, न्यायालय ने अनुच्छेद 200 और 201 के प्रावधानों पर विचार किया कि यह नहीं होगा

It held that since there is no time limit prescribed under Articles 200 and 201

for the Governor or the President to give their assent, unlike the House which has six months to decide the recommendations of the Governor or the President as the case may be,

 it suggests that the framers of the Constitution did not want a Bill pending assent from the Governor to be at risk of lapsing on dissolution of the House.

 as soon as possible 

Though the Constitution prescribes no express time limit, the first proviso does mention that the Governor ought to either give his assent or send the Bill back to the House as soon as possible. 

to reserve Bills for the President’s consideration 

The Governor, therefore, has no discretion to indefinitely withhold assent to a Bill. If a Bill is presented to him, it has to be returned with recommendations or given assent as soon as possible.

 If it takes away the power of the High Court, the Governor has the discretion to refer it for the President’s consideration. Refusing to act on a Bill is in violation of the Constitution, and a Governor’s action or inaction in this regard would be susceptible to judicial review.