SC Tamil Nadu Verdict: Can Judiciary Usurp Legislative Powers?

SC’s TN Judgment on Pending Bills Is Judicial Overreach

By R Narayanan

In a landmark judgment, a Supreme Court Bench of Justices J.B. Pardiwala and R. Mahadevan today held that Tamil Nadu Governor R.N. Ravi acted in violation of the Constitution by withholding assent to 10 State Bills, including those which were pending since January 2020 and subsequently reserving them for the President, after the State Assembly passed the Bills again.

In a strong judgement, Supreme Court observed that reserving the 10 Bills for the President after their enactment by the State Legislature was illegal and erroneous in law. The Court also said that the Governor reserved the Bills for President soon after Apex Court judgement in the Punjab Governor Case in which Supreme Court stated that the Governors cannot veto the Bills simply by delaying in action.

Supreme Court declared that the Governor’s action of reservation of ten Bills was contrary to Article 200 and as such declared erroneous. It also held that any consequential steps taken by the President on these 10 Bills are equally erroneous and non-existent in law.

Consequently, the Court stated that the 10 Bills were deemed to have been assented by the Governor on the date on which they were presented to him by the State Legislature.

Justice J.B. Pardiwala observed that there is no concept of ‘Absolute Veto’ or ‘Pocket Veto’ under the Indian Constitution.

Before understanding the Supreme Court Judgement, let us see what the Constitutional provisions with regard to the powers of the Governor are in disposing of the Legislative proposals passed by the State Legislature.

Under Article 200, when a Bill is passed by the Legislature, it is presented to the Governor, who has following options:

1) He assents to the Bill, in which case the Bill becomes an act.

2) He will declare that he withholds assent to the Bill.

3) He reserves the Bills for the consideration of President.

In addition to the above three options, the Governor has one more option with regard to the Bill, which he withholds, that is, the Governor may as soon as possible after presentation to him of the Bill for assent return the Bill (except Money Bill) together with a message requesting that the legislature will reconsider the Bill or any specific provision and in particular will consider the desirability of introducing any amendment as may be recommended in his message.

When such a Bill is returned, the legislature shall reconsider the Bill and if the Bill is passed again by the House with or without amendment and presented to the Governor for assent, the Governor shall not withhold his assent.

As emphasized by the Apex Court, there is no provision in this article for absolute veto or pocket veto. The Governor can either assent or withhold or refer back the withheld bills or reserve the Bills for President’s consideration.

In which cases, reservation of Bills for consideration of President is necessary has not been given in the Constitution except in one case that is reservation is obligatory where the Bill passed by the state Legislature endanger the position of the State High Court.

Nevertheless, former Attorney General Soli Sorabji identified five instances where the Governor can reserve the Bills:

1) When the Bill is against the provisions of the Constitution.

2) When the Bill is opposed to Directive Principles of State Policy.

3) When the Bill deals with the compulsory acquisition of property under Article 31A of the Constitution.

4) When it is against the larger interest of the country – i.e., in conflict with Union Law.

5) Which is of grave national importance.

Article 200 of the Constitution which deals with the powers of the Governor with regard to the Bills does not prescribe any time limit for disposing of the Bill. Taking advantage of this provision rather lack of provision, normally, the Governors sit on the Bills.

The so-called ‘Pocket Veto’ i.e., no decision being taken on the Bill presented to Governor is also a corollary of the lack of provision in fixing the time limit. Pocket veto is nothing new in our country.

In fact, Post-Office Amendment Bill was kept pending by Gyani Zail Singh, the President of India from 1982 to till 1987, to prevent the Indian Post Office Amendment Bill from becoming a law. That is why there is a sarcastic saying that Indian President’s Pocket is larger than US President’s.

This means the difference in veto power between these two leaders.  There is no time limit in Indian Constitution and in contrast US President has to review and decide on a Bill within 10 days after which the Bill automatically becomes a law, even if is not signed or vetoed. Hence, the metaphorical larger pocket has been used with reference to Indian President.

The decision of the Supreme Court is most welcome. In fact, Supreme Court has rightly prescribed the time line for the Governor’s to dispose the Bills presented to them. The Judgement explains that under the First proviso of Article 200 of the Constitution, if the Governor opts to withhold assent he had to return the Bill to the Assembly as soon possible with a message to reconsider the proposed law or specific provision even suggesting amendments.

In the instant case, Tamil Nadu Governor withheld consent to 10 Bills without giving any reason.

The Supreme Court has also laid down that if the house passed the Bills again and presented it to Governor, he has to give his assent. In other words, he cannot reserve the Bill for consideration of the President if the Bill has been re-passed.

Similarly, he cannot refer a Money Bill for reconsideration; either he can withhold and send the Bill back with reasons because the Bill which is not assented to is the Property of the House.

Another important factor is that by invoking Article 142 for doing Complete Justice, Supreme Court has declared that the 10 Bills are deemed to have received the assent of the Governor from the date on which the Bills were presented to Governor after re-passage by the Legislature.

Technically, this amounts to judicial overreach. Legislature is responsible for law making. Judiciary to declare that a Bill is deemed to have been passed does not seem to be correct in this process. Judiciary seems to take unnecessary and avoidable risk and responsibility.

To refer this to amicus curie to examine and decide on the bills within a month or so, prescribing the time limits could have been the most welcome step.

But we cannot question the wisdom of judiciary, because Supreme Court is the final interpreter of the Constitution and Constitution is what the Supreme Court says.

In conclusion. I like to add two quotes of Dr. B. R. Ambedkar – “If I find the Constitution being misused, I shall be the first to burn it”, and “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good”.

(This is an opinion piece; views expressed in article belongs to author)

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