Article 168 of the Constitution of India begins with the words “For every State there shall be a Legislature which shall consist of the Governor” and …….two Houses …or one House”. I have always thought the presence of the Governor in the state legislature is redundant. Why should an unelected official be a member of the legislature composed of elected representatives of the people? Ceremonial duties such as Address to the House or Houses, and other so-called ‘legislative’ functions (Articles 202 to 207), could be performed without the governor being a part of the state legislature — like the King of England.
The governor’s real role in the legislative branch of the State is to grant assent to Bills. This is indeed an important function to complete the legislative process before a Bill becomes an Act. In order to ensure that the legislature has not transgressed the Constitutional limits, it is necessary to confer upon a person the power to grant or refuse assent.
Check, not stall
Article 200 reads:
“When a Bill has been passed by the Legislative Assembly of a State ….it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.”
The proviso to Article 200 states that the governor may as soon as possible return the Bill to the legislature to “reconsider the Bill or any specified provisions thereof” and to “consider the desirability of introducing any such amendments as he may recommend”. This a healthy check on the legislature but not a licence to play havoc with the legislative process.
Governors — especially in Opposition-ruled states — have run amok with the power given to them under Article 200. They assume that their power to check is a licence to stall. Hence, they invented the pocket veto. A pocket veto is simply to sit idle; in other words, to neither grant assent; nor withhold assent and return the Bill to the legislature for reconsideration; nor reserve the Bill for the consideration of the President. The pocket veto is unalloyed malice. It is used to thwart the will of the people expressed through a Bill passed by the legislature. The pocket veto has no sanction under the Constitution.
The two-judge Bench of the Supreme Court reached the conclusion that when a Bill is presented to the governor, he can either grant assent; or withhold assent and return the Bill as soon as possible to the legislature for reconsideration; or reserve it for the consideration of the President. The Bench outlawed the ‘pocket veto’. The five-judge Bench affirmed these conclusions. There were some points on which the two Benches differed but those points do not alarm the common citizen. We may leave it to legal scholars to debate those points.
Common citizen’s concern
What is of grave concern to the common citizen is the major point of difference between the two Benches on prescribing time limits for the governor to act on a Bill. The two-judge Bench stipulated strict time limits, the five-judge Bench demurred and overruled. The larger Bench was persuaded by the letter of the Constitution which did not explicitly specify any time limits. The larger Bench stressed on the “elasticity for constitutional authorities to perform their functions”, the “diverse contexts and situations” and “the need for balancing that might arise in the process of law-making”. These principles are theoretically and constitutionally unexceptionable.
However, the Supreme Court ought to have also weighed the warning of Dr Ambedkar. In his concluding speech to the Constituent Assembly, reflecting human weaknesses, Dr Ambedkar said:
“However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”
I am afraid some of the ‘lot’ that currently hold the positions of governor are certainly not the ‘good lot’. What they are, I leave it to the reader. What they do and what they do not do are before the people of India. When a Bill passed by the duly elected legislature is stalled for months, nay years, the Constitution is not worked, it is wrecked. The will of the people is thwarted.
Before the Supreme Court, there were numerous examples of governors (especially of Opposition-ruled States such as Jharkhand, Karnataka, Kerala, Punjab, Tamil Nadu and West Bengal) who had tilted the Constitutional balance against the legislature. The five-judge Bench was expected to authoritatively restore the balance. It did a fine job of analysis but rested its Opinion on a theoretical premise far removed from the reality as illustrated by the facts before the Court.
Law and reality
Law must respond to the reality. When the Supreme Court thought that the independence of the judiciary may be compromised, it interpreted Article 217 of the Constitution to take unto itself the power to select, and recommend for appointment, the judges of High Courts. Article 200 presented a graver problem. A legislature’s ability to pass laws is the essence of democracy and the rule of law. An appeal to reason alone will be futile when laws are unreasonably and deliberately obstructed.
