Government: Governor can scrap bill by withholding assent

NEW DELHI: Amid conflicts between governors and opposition-led governments in states, the Centre on Wednesday told Supreme Court that if a governor, in rare and extraordinary circumstances, chooses to withhold assent to a bill passed by a state assembly, the bill gets scrapped.

Solicitor general (SG) Tushar Mehta had to labour a good part of the day before a five-judge Constitution bench of CJI B R Gavai and Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar to explain the sweeping power conferred on governors through Article 200 of the Constitution.

The proposition, which the SG said, is backed by two five-judge SC bench judgments categorically stating that if a governor exercised the option of withholding assent, then the bill "falls through", evoked questions from a bench that was clearly alive to frequent stalemates between governors and state govts over indefinite pendency of bills with the former.

Mehta said on a bill, the governor has options of granting assent, withholding assent, reserving it for the President's consideration or returning it to the assembly with suggestions for modification. "Once he declares he has withheld assent, the bill falls through. The governor then cannot exercise any of the other three options," he said. "The governor can simpliciter withhold assent ...if he believes the bill is unconstitutional or beyond any remedial changes, in which case the bill would 'fall through' or lapse as has been observed in several SC judgments by five-judge benches."


Solicitor general (SG) Tushar Mehta argued that the Constitution fixes no timeline for governors, in exercise of their plenary powers, to choose any of the four options. "The constitutional provision conferring such powers on the governor can only be amended by Parliament and the judiciary cannot encroach on the legislative domain in the guise of interpretation," Mehta said in what appeared to be a challenge aimed at the verdict of a two-judge bench fixing deadlines for governors and the President to take a call on bills sent to them for assent.

CJI Gavai said similar arguments were advanced by ruling dispensations when it came to SC directing the speaker to decide within a timeframe petitions on disqualification of MLAs under the anti-defection law. For the sake of democracy, SC has fixed timelines for speakers in such cases, he said.

Mehta, however, argued that the two cases are not alike since the speaker, while adjudicating petitions under the anti-defection law, acts as a tribunal and not in his/her constitutional capacity. It is a settled law that as a tribunal he is amenable to the jurisdictions of HCs and SC, he further argued. The SG said discretionary power to 'withhold assent to a bill' is one of the few areas, delineated by the Constitution, where the governor is not bound by the aid and advice of the council of ministers of the state. "Because no council of ministers would advise the governor to withhold assent to a bill, yet that power is specifically given by the Constitutio," he said.

The SG cited 10 illustrative situations where the governor would be well within his discretionary powers to withhold assent to a bill to render it ineffective. He said, for instance, if a border state enacts a law allowing citizens of a neighbouring country free entry into the state, the governor would be justified in withholding assent.