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EDITORIAL ANALYSIS: Gubernatorial procrastination is unreasonable

 Source: The Hindu

 

  • Prelims: Parliamentary democracy, Functions and responsibilities of Governor, state legislature etc

 

  • Mains GS Paper II: State Legislature -Structure, organization, functioning and conduct of business etc

 

ARTICLE HIGHLIGHTS

  • A Bill passed by the State Assembly becomes law only after it is assented to by the Governor.

 

INSIGHTS ON THE ISSUE

Context

Gubernatorial procrastination:

  • Governor’s action of unnecessarily and voluntarily delaying or postponing something despite knowing that there will be negative consequences for doing so.

 

Governor:

  • The Governor performs the same duties as the President, but for the State.
  • The Governor stands as executive head of a State and the working remains the same as of the office of President of India.

 

Appointment and powers:

  • Derived from Part VI of the Indian constitution.
  • Article 153:
    • There shall be a Governor for each State.
    • One person can be appointed as Governor for two or more States.
  • The governor acts in ‘Dual Capacity’ as the Constitutional head of the state and as the representative.
  • He acts as a bridge between union and state governments.

 

Power over bills:

  • Article 200: Deals with the powers of the Governor with regard to assent given to bills passed by the State legislature and other powers of the Governor such as reserving the bill for the President’s consideration.
  • Article 201: ‘Bills Reserved for Consideration’.
  • Veto: The Governor of India enjoys absolute veto, suspensive veto (except on money bills) but not the pocket veto.
  • Assent to bill: The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
  • In all democratic countries: similar provision exists in their constitutions.

 

Recent Controversies over Governor’s assent:

  • Tamil Nadu: The Governor forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
  • Kerala: The Governor publicly announced that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill.

 

Constitutional position:

  • Options under Article 200:
    • He may give assent
    • He can send it back to the Assembly(requesting it to reconsider some provisions of the Bill, or the Bill itself).
    • Reserve the Bill for the consideration of the President.
    • Withhold the assent(not normally done by any Governor because it would be an extremely unpopular action)
  • 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: It does not mention any other type of Bill which is required to be reserved for the consideration of the President.

 

Related issues:

  • The Governor does not reflect the aspirations of the people: It defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.
  • The Constitution does not mention the grounds: On which Governor may withhold assent to a Bill.
  • Position of courts: The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go.
  • Governor’s role: It does not square with the best practices in old and mature democracies.

 

Overseas practices:

  • United Kingdom: By practice and usage there is no power of veto exercised by the crown in England now.
    • 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.
  • The 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.

 

Issue of challenge:

  • Article 361: It prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers.
  • No timeline for the Governor to decide the question of assent: This is illogical and militates against the constitutional scheme in respect of law making by the legislatures.

 

 

Way Forward

  • Governor cannot act in an arbitrary manner: Being a high constitutional authority, the Governor cannot act in an arbitrary manner and, therefore, will have to give reasons for refusing to give assent.
  • 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.
  • Not fixing any time line: It does not and cannot mean that the Governor can indefinitely sit on the Bill that has been passed by an Assembly.
    • Article 200 does not contain such an option.
    • The Governor is required to exercise one of the options mentioned in that Article.

 

QUESTION FOR PRACTICE

  1. Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any, that have led to recent reported conflicts between the elected representatives and institution of Lieutenant Governor in the administration of Delhi. Do you think that this will give rise to a new trend in the functioning of the Indian Federal Politics?(UPSC 2016)

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