Guest post: Judicial review of Governors’ delay in assenting to Bills – A response

Various Commissions like the National Commission to Review the Working of the Constitution and the Puncchi Commission have called for constitutional amendments to prescribe a time limit by which the Governor has to give his assent. However, no action has been taken in furtherance of these recommendations. The failure of legislative intervention necessitates judicial intervention by laying down standards to ensure that the Governor assents to the Bill.

This essay argues for the need to lay down judicially manageable standards of review for the Governor’s power to withhold assent. It suggests the possible standard for review that can be used by the judiciary. It also tackles the presence of Article 361 (personal immunity of the Governor) as a barrier to judicial review.

Article 200: Power to withhold assent and the need for judicial review

Article 200 of the Constitution envisages four different options available to the Governor when presented with a Bill for his assent. The governor could assent to the Bill, withhold assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill to the State Legislature for reconsideration. The provision does not indicate any time restraint within which the governor should choose either one of the options. The only guidance provided to the governor is to return the Bill to the State Legislature for reconsideration “as soon as possible”. The Court in Purshothaman v State of Kerala expressed the view that the phrase “as soon as possible” is limited to returning the Bill and cannot be interpreted as applying to the other three options (including withholding assent). Therefore, there is absolutely no limitation to the power of the Governor to withhold assent.

Additionally, the power to withhold assent has been classified as the governor’s discretionary power in Nabam Rebia v Deputy Speaker. This implies that the governor is not bound by the aid and advice of the council of ministers under Article 163 of the Constitution. In a previous blog post, the ambiguity in this proposition is brought to light where various high court decisions have conflated the powers of the president and the governor to hold that governor’s discretionary powers are limited in the same manner as the President’s. However, it is respectfully argued here that there remains no ambiguity with respect to the power to withhold assent due to the decision of the Supreme Court in Nabam Rebia. The Court, here, relied on the Puncchi Commission Report and held that:

….The Governor’s discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200;…… We are of the considered view, that the inferences drawn in the Justice M.M. Punchhi Commission report extracted hereinabove, are in consonance with the scheme of the functions and powers assigned to the Governor, with reference to the executive and legislative functioning of the State, and more particularly with reference to the interpretation of Article 163. We endorse and adopt the same, as a correct expression of the constitutional interpretation, with reference to the issue under consideration. (Emphasis mine)

Thus, the power to withhold assent falls under the discretionary powers of the governor.

Therefore, the above indicates that the governor (a non-democratic authority) has unbridled power to withhold assent and can stifle crucial state legislations. This offends the principles of parliamentary democracy and responsible government which have been held as the guiding lodestars while interpreting the provisions of the Constitution by various judicial pronouncements such as Samsher Singh v State of Punjab and UNR Rao v Indira Gandhi respectively. This is also a part of the larger paradigm of legislative-executive tussle (state legislature vs governor) and executive aggrandizement (increasing power with the executive branch of the government).

Accordingly, there is a pressing need for judicial review of the governor’s power of withholding assent. Judicial review would help in alleviating the problems identified above by restricting the unbridled powers of the governor.

Possible barriers to judicial review

There are two possible barriers to the possibility of judicial review of the governor’s power to withhold assent. One is the personal immunity of the governor under Article 361 and the second is the absence of any “judicially discoverable and manageable standards”.

Article 361: Personal immunity of the Governor

Article 361 of the Constitution provides personal immunity to the governor from being answerable to any court for the exercise of his powers and duties. The Court in Rameshwar Prasad v Union of India has unequivocally held that A.361 provides absolute personal immunity to the governor. The Court emphasised that even a notice cannot be issued to the governor to act in a particular way. In fact, the Chhattisgarh HC recently stayed its order seeking a reply from the governor over the delay in assent due to the presence of Article 361.

However, this immunity to the governor should not act as a bar to judicial review of the governor’s power to withhold assent. The Court in Rameshwar Prasad brought in an important distinction between judicial review of the “actions” of the governor as opposed to holding the governor himself liable. The Court held that:

The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. (Emphasis mine)

The withholding of assent can be construed as an “action” by the governor or “actions” can be extended to include “inaction” of the governor. Either way will allow the court to judicially review the power to withhold assent. This may materialize in the form of a deemed assent since the court cannot direct the governor to act in a particular manner.

Absence of judicially manageable standards

There has been little attempt to define the term “judicially manageable standards”. However, essentially, they are understood as those standards that the courts can legitimately employ to achieve a particular legal outcome that is closely related to the constitutional norm itself. The absence of judicially manageable standards is used to term the issue as a “political question” and hence outside the scope of judicial review. RH Fallon observes that judicial manageability is largely dependent on whether the future courts can consistently and predictably apply the particular standard. As will be seen later in the piece, the standard proposed for judicial review would fulfil this requirement for being termed as a “judicially manageable standard”.

Additionally, the Court in RC Poudyal v Union of India held that the mere fact that a particular provision of the Constitution may not allow for judicially manageable standards is not sufficient to bar judicial review. Recently, in Shivraj Singh Chouhan v. M.P. Legislative Assembly, the Court rejected the argument that the Court “should be wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can be maintained”. Therefore, even if the proposed standard for judicial review is not judicially manageable, it would not act as a bar to judicial review.

The conclusion that there is no bar to judicial review of the governor’s power to withhold assent also flows directly from other judicial pronouncements as well. The Court in Samsher Singh v State of Punjab held that the refusal of assent by the President and the Governor would be unconstitutional. It observed:

We have no doubt that de Smith’s statement (1) regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional… “. (Emphasis mine)

In Nabam Rebia, the Court held that the discretionary powers of the governor are amenable to judicial review. It also observed that the power to withhold assent is a discretionary power of the governor. This implies that the power to withhold assent is subject to judicial review. Therefore, by necessary implication, this implies that it is possible to lay down a judicially manageable standard for judicial review regarding the same.

Standard of Judicial Review

After having established that it is possible to lay down a standard for judicial review, this section would lay down the standard of review that should be adopted by the Court.

In a recent Madras High Court case of S. Ramakrishnan v State of Tamil Nadu, the Court tried to hold the governor accountable for withholding his assent to a medical admissions Bill. The Court laid down a ‘public interest test’ to hold that the governor may be compelled to provide his assent in certain situations. The Court completely side-lines the issue of gubernatorial immunity under A.361 and holds that:

When situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the Public. It is well settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, this Court has to do its constitutional duties and to address the situation.

Even though the Court ultimately holds that such a situation did not arise in the present case, it has set up a dangerous precedent which might open up a pandora’s box of judicial problems. The Court’s intent to judicially review the governor’s power to withhold assent was laudable. However, the judgment suffers from two major defects. First, it does not provide any reasoning to deal with Article 361. It merely holds that “extraordinary situations require extraordinary remedies.” Second, the standard laid down by the Court, that is the ‘public interest test’ is not judicially sound. This standard is very vague in its conception and might fail the test of “judicial manageability”. The standard is also quite narrow in its conception. This is understood from the application of the test in the Ramakrishnan case where the future admissions of 400 to 500 students were not considered in ‘public interest’.

A better and far more superior and judicially sound standard would be the ‘arbitrary and the mala fides’ test. The standard prohibits the use of constitutional power in an ‘arbitrary’ or ‘mala fides’ manner. The use of the power should not be based on ‘irrelevant or extraneous considerations’ and should be guided by ‘good reason’. This is the dominant standard used while judicially reviewing the powers of the executive functionaries under the Constitution. This is the standard used for limiting the president’s power to dismiss the governor under Article 156(1) (See BP Singhal v Union of India) and the power to grant pardons under Article 72 and Article 161 of the Constitution (See Maru Ram v Union of India). This standard has also been used to enquire into the validity of a proclamation under Article 356 of the Constitution (See SR Bommai v Union of India).

This standard of judicial review also flows from the judgment in Nabam Rebia. The Court, here, affirmed Puncchi Commission’s remarks on the governor’s discretionary powers. The Commission noted that: –

…. [T]he area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution. (Emphasis mine)

These remarks, in essence, represent the ‘arbitrary and the mala fides’ test. Therefore, the Court in Nabam Rebia accepted the proposed standard to be used while exercising judicial review over the governor’s discretionary power (including the power to withhold assent). The use of this standard would help in limiting the delay in assent to bills since most governors’ decision to withhold assent is based on arbitrary reasons. This is precisely the claim made in the petitions challenging the governor’s delay in assent to bills. To determine when the delay turns into an ‘arbitrary or malafide’ delay, the Court would have to look at the particular facts and circumstances of each case. The relevant factors to be assessed should be guided by the principle that there should be minimum delay in the assent to bills. The Court could look at a range of circumstances such as the workload of the governor, the amount of time since the bill is pending before the governor, and the reasons given by the governor for not assenting to the bill.

Conclusion

This essay has proposed a sound standard of judicial review for the governor’s power to withhold assent. It identifies the need for judicial review and addresses the possible barriers to the exercise of judicial review of this power. The judicial review of the governor’s powers would help in alleviating executive aggrandizement and legislative-executive tussle. It is important to note that the institution of the governor, which was once understood as an institution of a high constitutional functionary, has been penetrated with politics. This is also evident from the recent appointments of governors where most of them have close connections with the ruling party. This compels one to reconsider the width of the power conferred upon the governor and how much trust can one repose in this functionary. This article was first published in the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/2023/03/11/guest-post-judicial-review-of-governors-delay-in-assenting-to-bills-a-response/

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