The Supreme Court on Monday took note of Tamil Nadu government’s argument that the Constitution does not provide Governor RN Ravi “discretion” to withhold 10 Bills “re-passed” by the State Legislative Assembly.

“Once they have been re-passed, these Bills are put in the same footing as Money Bills. Then you (Governor) cannot reject...” Chief Justice of India DY Chandrachud, heading a three-judge Bench, remarked.

The court was reacting to arguments raised by the State, represented by senior advocates AM Singhvi, Mukul Rohatgi, P Wilson and advocate Sabarish Subramanian, that the first proviso of Article 200 states that “if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom”.

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But, at one point, the Chief Justice asked whether the Governor had to mandatorily send the Bills back to the House for re-consideration after withholding assent. ‘‘Can he simplicitor say ‘I am withholding assent’ without sending the Bills back to the House?” the CJI asked. Singhvi responded that returning the Bills back to the House was a necessary corollary to the withdrawal of assent.

The court also acknowledged the State’s submission that Governor, having withheld assent and sent back the Bills once, cannot refer the reiterated Bills to the President.

The Bills had been sent for approval to the Governor’s office in the period between January 2020 to April 2023. The State had complained to the court that the Governor was holding them back indefinitely, defeating the rights of the people of Tamil Nadu to the benefits of crucial laws passed by the House.

The Governor had withheld assent and “returned” the Bills to the House on November 13, the State said. The Tamil Nadu Assembly had convened a special session on November 18 to re-pass the Bills and send them back to the Governor for approval.

“The Governor returned the Bills with just one line ‘I withhold consent’. What was the Assembly supposed to do? So, the House re-passed the Bills… The Governor has to return the Bills with a message spelling out reasons why he has returned the Bills,” Rohatgi pointed out.

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Singhvi said the Governor had returned the Bills without a “message” suggesting amendments to the proposed laws nor cited reasons for withholding his consent. Besides, he had sat on the Bills indefinitely for nearly three years.

“The Governor says he disposed of the Bills on November 13, 2023. Our order issuing notice to the petition (filed by Tamil Nadu) was on November 10. These Bills have been pending since January 2020. The Governor took action only after we issued notice in the matter. Why should Governors want parties to move the Supreme Court to start taking steps? In this case, what was the Governor doing for three years?” Chief Justice Chandrachud asked Attorney General R Venkataramani.

Time limit sought

Wilson urged the court to fix a time limit for Governors. “We have to run the governance of the State. Every time, we cannot come to the Supreme Court. Seven crore people are affected,” he submitted.

Singhvi said the Governor has to function within the State Legislature. “He cannot exercise a pocket veto,” the senior lawyer contended.

Wilson said the Governor exercises his power of assent with the aid and advice of the Council of Ministers.

He referred to the Constituent Assembly debates to highlight the statement made by TT Krishnamachari, the Member from Madras and later Finance Minister, that a “Governor cannot act on his own, he can only act on the advice of the Ministry… When a Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers”.

Krishnamachari had explained that if the Bill passed by the Legislative Assembly needs modification or has been a product of hasty action or has garnered adverse public opinion, the government uses the Governor to return the Bill to the Lower House as quickly as possible for re-legislation. The first proviso to Article 200 was thus a “saving clause” and retained the power and discretion over the fate of the Bill solely in the hands of the State Cabinet.

“What was the Governor doing when these Bills were given to him?” the Chief Justice asked Venkataramani.

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The Attorney General said the present Governor had assumed office only in November 2021.

“The question here is not which particular Governor has delayed the exercise of his Constitutional function. The question here is whether, in general, there has been a delay in the Constitutional function… We are talking about the office of the Tamil Nadu Governor,” Chief Justice Chandrachud clarified with the Attorney General.

Venkataramani submitted that 182 Bills were given to the Governor by the House for approval. Of this, 152 have been approved, five were withdrawn by the government and nine reserved by the Governor for referral to the President. The Governor had withheld consent on 10 proposed laws and five, which were received in October 2023, were under process.

“Out of the 10 Bills on which the Governor had withheld consent, the real issue is the amendments made to the State universities’ legislations by which the Chancellor (Governor) is deprived of his powers to select the Vice-Chancellors,” Venkataramani submitted.

Singhvi said the Bills passed by the House represented the ultimate will of the people. “The system followed is that the House retains the right to remain wrong in their domain. The Governor plays no role in this… The spirit of the Constitution cannot be made a fool of with the Governor either sitting on the Bills or withholding consent without assigning reasons. He cannot make a mockery of Article 200 of the Constitution,” he argued.

Venkataramani sought a deferment of the hearing in order to give the Governor time to consider the re-passed Bills. The court scheduled the next hearing on December 1.