Role of Governor in Law Making

In News

• The Governor’s assent is the most crucial act in the whole law-making process.

Key Points

• Role of Governor in ‘Bill to Law’ Process: 
  • A Bill passed by the State Assembly becomes law only after it is assented to by the Governor. 
  • The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent. 
• Recent Controversies:
  • In Tamil Nadu, the Governor forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay. 
  • In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. 
• Court’s Stand: 
  • The courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President. 
  • The Indian Constitution, however, does not provide any such remedy where law passed by legislature will become a law even if not given the assent of Governor. 
  • The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. 

Constitutional Assent: Article 200

• The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
• Article 200 of the Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly. 
• This provision contained in Article 200 (proviso) unambiguously affirms the primacy of the legislature in the legislative exercise. 
  • He may give assent or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. 
    • In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it. 
  • The third option is to reserve the Bill for the consideration of the President. 
    • The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. 
    • The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. 
  • The fourth option, of course, is to withhold the assent. 
    • But it is not normally done by any Governor because it would be an extremely unpopular action. 
    • The legislature reflects the will of the people and is the constitutionally designated body to make laws. 
    • If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution. 

Issues with Withholding/Denying Assent

• Actions of not giving assent or delaying it, by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent. 
• The Constitution does not mention the grounds on which a Governor may withhold assent to a Bill. 
• There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion.
• It is claimed that since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. 

Challenging the refusal of assent by the Governor in a court of law

• Article 361 of the Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. 
• The President and Governor enjoy complete immunity from court proceedings. 
• The Governor while declaring that he withholds assent will have to disclose the reason for such refusal. 
• Being a high constitutional authority, the Governor cannot act in an arbitrary manner. 
• If the grounds for refusal disclose mala fide or extraneous considerations or ultra vires, the Governor’s action of refusal could be struck down as unconstitutional. 
• This point has been settled by a Constitution bench of the Supreme Court in Rameshwar Prasad and Ors. vs Union Of India and Anr. 
• The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.

Global Practice

• United Kingdom: 
  • There too royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter. 
  • By practice and usage there is no power of veto exercised by the crown in England now. 
  • Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional. 
• United States:
  • The President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.
• Refusal not practiced in other countries: 
  • The lesson to be drawn from these practices is that refusal of assent is a practice which is not followed in other democratic countries. 
  • And in some contexts, it is unconstitutional or the Constitution itself provides a remedy so that the Bill passed by the legislature could become law even after the refusal of assent.

Way Ahead

• From the Administrative Reforms Commission to Sarkaria Commission, several panels have recommended reforms, such as selection of the Governor through a panel comprising the PM, Home Minister, Lok Sabha Speaker and the CM, apart from fixing his tenure for five years. 
• Recommendations have also been made for a provision to impeach the Governor by the Assembly
• The whole legislative exercise will become fruitless if these recommendations are not implemented to adopt the best practices.

Source: TH