Won't state govt be reduced to whims and fancies of Governor if he withholds assents to Bills, asks Supreme Court

New Delhi: The Supreme Court on Wednesday asked if the Governors can simply withhold their assent to Bills without returning them to the Legislative Assembly, would it not place the state governments elected by the majority at the whims and fancies of the Governor.

The top court said that in case a Governor has the power to permanently withhold assent to the Bills passed by State legislature, the situation might arise that would leave the elected state governments at the whims and fancies of an unelected Governor.

"Would we not be giving total powers to Governor to sit in over appeal. The government elected with the majority will be at whims and fancies of Governor," a five-judge led by Chief Justice of India B R Gavai, said, hearing the Presidential reference on fixing timelines for passage of Bills.

The court's observations came as Solicitor General Tushar Mehta appearing for the Centre, argued that the Governor under Article 200 of the Constitution can withhold assent to a Bill, making it "fall through" with no option to send it back to the legislature.

The court said the Governor will then have ample powers to sit over Bills and withhold it for time immemorial. The bench said it is quite appreciated that constitutional functionaries would be presumed to act in bona fide manner. The possibility of misuse of the power can't be a ground of challenge.

Mehta, however, said that everyone derives power from the Constitution. He said discretionary powers have been assigned to the Governor.

"The Governor is not a postman. He represents the Union of India (Centre). He is appointed by the President, who is, in turn, elected by the nation by way of an indirect election. The Governor’s office will be merely reduced to a postman if he cannot use his discretion to withhold Bills," Mehta said.

Referring to Constitutional debates, Mehta submitted that the Governor, under substantive part of Article 200, can simply ‘withhold assent’ to a Bill, if he believes that the Bill is unconstitutional and beyond any remedial changes.

The arguments in the case were inconclusive on Wednesday and would continue in the apex court on Thursday.

The five-judge Constitution bench, hearing the Presidential reference also comprised of Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar.

Mehta, dealing with the powers of Governor under Article 200 in context of bills passed by a State legislature, said that the Governor has four options, grant assent to the Bill, withhold assent, reserve the Bill for consideration of the President or send it back to the legislature.

In case, the Governor exercises the ‘fourth’ option to return the Bill and the Bill is re-passed, the Governor is bound to grant assent and not resort to withholding. However, in such a case, the Governor can opt to refer the Bill to the President in case of repugnancy.

Mehta also said that the power of “withholding” of the Bill shall have to be used sparingly and only in extraordinary situations.

Mehta emphasised that the Governor is not a nobody. He is the representative of the President, who follows the aid and advice of the Union Cabinet which comprises elected representatives across the nation.

He said that Article 200 endows the Governor with discretion, and is not bound by the aid and advice of the Council of Ministers in all circumstances. "The Governor can use discretion which party or front has majority to form a government," he said.