The Supreme Court on February 6 questioned the prolonged delay by the Tamil Nadu Governor in withholding assent to bills enacted by the state legislature, some of which were pending for over three years before being referred to the President.
A Bench comprising Justice JB Pardiwala and Justice R Mahadevan sought an explanation from Attorney General (AG) R Venkataramani on why the Governor took such an extended period to send the bills to the President under the pretext of repugnancy.
Judicial Scrutiny of Governor’s Actions
Justice Pardiwala questioned, “What was so gross in the bills that the Governor took three years to identify the issue?” The Bench also noted that two bills were referred to the President only after the legislative assembly had re-enacted them.
AG Venkataramani contended that the Governor had merely withheld assent and had not sent the bills back to the assembly for reconsideration. However, Justice Pardiwala observed that such an approach could undermine Article 200 of the Constitution, which outlines the Governor’s role in the legislative process. “It does not make sense to keep withholding assent without sending the bills back to the legislature. The Governor seems to have adopted his own procedure,” he remarked.
The Bench further emphasized that withholding assent in the name of repugnancy required substantive justification. “You need to show us factual reasons for withholding assent. Either present original files, contemporaneous records, or any other documents that detail the basis of the Governor’s decision,” Justice Pardiwala directed the AG.
The Court also pointed out that the Governor’s decision to withhold assent came just three days after the Supreme Court’s ruling in the Punjab Governor’s case, where it was held that Governors cannot indefinitely sit on bills.
Allegations Against the Governor
The State has alleged both malice-in-law and malice-in-fact in the Governor’s conduct. The AG argued that the bills in question sought to remove the Governor as the Chancellor of State Universities and were matters of national importance. However, the Bench clarified that it was solely examining the Governor’s constitutional power to withhold assent and directly refer two bills to the President.
When the AG asserted that a mere statement of repugnancy was sufficient, and that the Governor should not be expected to “write an essay”, Justice Pardiwala responded, “You need to show us the repugnancy. Can bills be withheld indefinitely under the mere assertion of repugnancy?” The Court also noted that while the Governor had the option to refer all bills to the President, he had selectively sent only two.
Key Constitutional Issues Under Consideration
The Court framed several legal questions for deliberation:
1. If a state legislature passes a bill and the Governor withholds assent, but the bill is re-enacted and presented again, can the Governor then refer it to the President?
2. Is the Governor’s discretion to refer a bill to the President limited to specific matters?
3. What considerations influenced the Governor’s decision to refer certain bills to the President?
4. Does the concept of pocket veto exist within the constitutional framework?
5. How should Article 200 of the Constitution be interpreted when a Governor withholds assent or returns a bill for reconsideration? If the legislature re-passes a bill, is the Governor bound to grant assent?
Background and Pending Litigation
On November 13, 2023, the Governor withheld assent for ten bills, prompting the Tamil Nadu Legislative Assembly to re-enact them on November 18, 2023. The State subsequently moved the Supreme Court challenging the Governor’s actions. During an earlier hearing in November 2023, the Court had noted that the oldest of these bills had been pending with the Governor since January 2020.
The case remains under adjudication, with arguments set to continue.
Case Details:
• The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr | W.P.(C) No. 1239/2023
• The State of Tamil Nadu v. The Vice Chancellor & Ors | W.P.(C) No. 1271/2023
