14/04/2025, 09:52 A Governor’s conduct and a judgment of significance

A Governor’s conduct and a judgment of significance

Suhrith Parthasarathy

is an advocate practising in the Madras High Court

The top court has reiterated a constitutional truth — that the Governor of a State is constrained by legal norms
and democratic principle

Last week, in a judgment of wide-ranging significance, in The State of Tamil Nadu vs The Governor of Tamil Nadu and Anr., a
two-judge Bench of the Supreme Court of India, comprising Justice J.B. Pardiwala and Justice R. Mahadevan, reaffirmed the
limits that bind gubernatorial authority. In doing so, the Court reminded us of a constitutional truth that ought to be self-
evident: the Governor of a State is neither an appendage of the Union nor an independent power centre, but is constrained by
legal norms and democratic principle.

A need to respect democratic obligations

At the heart of the case was a seemingly simple but institutionally weighty question: what happens when a Governor fails to act
on a Bill duly passed by the State’s legislature? The answers from the Court not only helped validate a clutch of Bills passed by
the Tamil Nadu Legislative Assembly — each of which had languished without assent — but also contained in them a broader
message. The office of the Governor, while significant, is not exempt from the obligations of representative democracy. To
withhold assent indefinitely, without reason, subverts the constitutional order.

Initially numbering 12, the contested Bills trace their origins to as far as 2020, with two enacted under the previous regime in
the State. Among them were Bills that sought to supplant the Governor’s power to appoint Vice-Chancellors to public
universities — proposals that emanated out of a long-standing skirmish between the Raj Bhavan and the elected government
over institutional control.

For years, the Governor took no discernible action. When the State government moved the Supreme Court in November 2023,
he promptly referred two of the Bills to the President for her consideration. The Legislative Assembly, in turn, convened a

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14/04/2025, 09:52 A Governor’s conduct and a judgment of significance
special session to reenact the remaining 10 Bills. But when these were sent to the Governor, he swiftly passed them on to the
President. Since then, the President assented to only one, rejected seven outright, and left two pending.

It was this sequence of events which formed the basis for the State government’s case in the Court. The Governor, through his
conduct, the State claimed, had undermined the people’s will. His prolonged inaction, and ultimately delayed referral, therefore,
demanded judicial scrutiny.

India’s federal design rests on a delicate balance. The Constitution carefully demarcates legislative authority between the Union
and the States. Article 245 prescribes the territorial jurisdiction of each, allowing Parliament to legislate for the entire country or
any part thereof, while State legislatures are confined to their respective territories.

The scope of legislative powers is categorised into three distinct lists outlined in the Constitution’s Seventh Schedule. The Union
enjoys exclusive authority over items in List I, while subjects in List III allow for legislation by both the Union and State
governments. Matters in List II, on the other hand, remain under the sole legislative domain of the States. However, in the event
of conflict with a parliamentary law, primacy is given to the Union legislation.

In this scheme, the Governor, though appointed by the President, functions as the constitutional head of the State. Barring
specific instances where the Constitution expressly permits discretion, he is bound to act on the advice of the State’s Council of
Ministers.

A reading of Article 200

It is in this context that Article 200 of the Constitution, which deals with how a Governor ought to assent to a Bill, assumed
significance before the Court. Much of the dispute turned on its interpretation. On a plain reading of Article 200, the Governor
may: grant assent; withhold assent (and return the Bill to the Assembly for reconsideration), or reserve the Bill for the
President’s consideration.

The Union of India, in their response to Tamil Nadu’s petition, contended that the first proviso to Article 200 provided the
Governor an independent, fourth course of action: he could simply withhold his assent to a Bill, without referring it back to the
Assembly. In other words, he could perform a pocket-veto.

But this argument had expressly been rejected by the Court in State of Punjab vs Principal Secretary to the Governor of Punjab
(2023). There, it found that the proviso to Article 200 contains no independent power. Once an ordinary Bill is passed by the
Assembly, the Governor has only one of three options available: to either assent to it, or reserve it for the President’s
consideration, or withhold the assent, in which case, the Governor must also refer it back to the Assembly for reconsideration.

It was also the Union’s case that in deciding whether to reserve a Bill for the President’s assent, the Governor could exercise an
autonomous discretion. That is, he had the independent ability to decide what course of action to follow. In answering this
argument, the Court harked to the debates in the Constituent Assembly. It noted that the draft version of Article 200 (then
Article 175) had explicitly stated that the Governor “may, in his discretion” reserve a Bill for the consideration of the President.
This phrase was consciously omitted in the adopted version. Its removal, the Court held, was deliberate, aimed at ensuring that
the Governor’s role was constrained by the advice of the elected executive.

Indeed, the Court identified only three narrow circumstances in which the Governor could act without ministerial counsel: first,
where the second proviso to Article 200 applied, that is where a Bill derogated from a High Court’s powers; second, where a Bill
fell within a class for which presidential assent was explicitly mandated, such as under Article 31C where a law was sought to be
protected from judicial review; and third, where a Bill so fundamentally undermined constitutional values.

This conclusion came with an important caveat. Even where a Governor exercises discretion, the action is still amenable to
judicial review. Relying on its earlier judgment in Rameshwar Prasad vs Union of India (2006), the Court found that while Article
361 grants personal immunity to Governors, it does not insulate their actions from legal scrutiny. Consider the alternative: a
Governor may simply paralyse the legislative process by sitting over Bills for years on end, all the while hiding behind the cloak
of gubernatorial immunity, choking, in the process, the entire governance of a State.

In any event, in this case, the Court found that there was no discretion available to the Governor. Having chosen to withhold
assent, he could not plausibly have then referred the Bills to the President, on their being re-presented to him. There was no
trace of executive advice backing his decisions nor were his acts grounded in any identifiable, let alone defensible, constitutional
rationale. Having found the Governor’s actions unconstitutional, the Court could no doubt have considered issuing what the law
describes as a writ of mandamus, compelling him to grant his assent to the Bills. But given the substantial time that had lapsed
and given that previous Court decisions had been overlooked, the Court chose the ostensibly extreme option. With a view to
achieving complete justice — a power available to it under Article 142 — it declared that these 10 Bills would be deemed to have
been assented to on the date when they were re-presented to the Governor.

Some might see this as judicial overreach, but issuing a mandamus might well have been rather more unworkable. Should the
Court’s orders be breached, it cannot plausibly hold the Governor in contempt. Therefore, the ultimate direction must be seen
as a logical sequitur to the Court’s findings: on the Bills being passed anew by the State Assembly, and on the Council of
Ministers recommending their assent, the Governor was left with no discretion in the matter.

The larger message

The significance of the judgment for the specific Bills, which were at stake, is plain to see. But the verdict also carries with it a
larger message. It upholds a fact intrinsic to our Republic: that the Governor, though appointed by the Union government,
functions on the aid and advice of the State executive; the office is meant to serve not as a source of political disputes, but as a
constitutional sentinel, upholding the values of representative democracy.

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