Why is it in the news?
1. The Supreme Court on 8th April 2025 delivered a landmark judgement. It termed the conduct of the Governor of Tamil Nadu as unconstitutional. The Court exercised article 142 to bring complete justice and thus, it deemed the ten pending bills to have received the assent, declaring the actions of the President of India who assented to only one of the bills, rejecting seven and not considering two other bills - to be void. Thus, the court ruled that the conduct of the Governor to send ten pending bills which had been re-passed by the state legislative assembly to the President for reconsideration was completely unconstitutional.
2. The court set the time limits of one to three months for Governors to take action on future bills. Under article 200 of the constitution, the Governor has three choices. These are to give assent to the bill passed by the state legislature, secondly, to withhold the bill and thirdly, to reserve the bill for consideration for the President. The court ruled that a Governor has a maximum of one month to withhold assent on the aid and advice of the state cabinet. The court further stated that a maximum of three months is given to return the bill with a message specifying reasons if the Governor withholds assent contrary to the cabinet’s advice. It held that the Governor has three months to reserve a bill for the President’s consideration against the advice of the cabinet. It further held that the Governor must grant assent to a bill repassed by the state legislature under article 200 within a maximum of one month. The court further warned that any failure by a Governor to comply with the timelines would invite judicial review. The court emphasises that Governors have no such absolute or pocket veto. Further a Governor cannot exercise his personal discretion if a house passes the same bill again and returns to him for consent. The top court declared that the Governor’s conduct was arbitrary, non-est (non- existent) and erroneous in law.
3. The Supreme Court held that a Governor cannot reserve a bill for the principle consideration when the proposed law, which was earlier rejected by him, is presented for the second time by the state legislature.
4. The Court observed that actions of the Governor which impede the will of the people reneges on the constitutional oath of office. The Governor as the constitutional head of the state is obliged to accord primacy to the will and welfare of the people of the state and earnestly work in harmony with the state machinery.
5. Thus, the judgement on 8th April by the Supreme Court led to the ending of the pocket veto of the Governor, strengthening the spirit of federalism, and setting the precedent for the resolution of the disputes between the Governors and State Governments. Further, the courts can intervene decisively and review the action of the Governors under article 142 hence forward.
The difference between the positions of the President of India and the Governor of a State.
1. The President is the constitutional head of the country while a Governor is the constitutional head of a state.
2. After the 42nd amendment, the President is bound to accept the advice of the Council of Ministers. He can send back the advice of the council of Ministers for reconsideration once. However, after the council of Ministers reconsiders and resubmits its advice, the President must act in accordance with that advice, leaving no room for further discretion. Thus, the executive power of the Union is vested in the elected Government of the day. The President is merely the titular and ceremonial head of the country.
3. In contrast, article 163 allows Governors to act in their discretion in certain situations required by the constitution. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under the constitution required to act in his discretion, the decision of the Governor in his discretion shall be final.
What are the discretionary powers of the Governor of a State?
1. The Governor can reserve a bill passed by the state legislature to the President of India.
2. He can send a report to the President recommending President’s rule under article 356 if he is satisfied that the constitutional machinery of the state has broken down.
3. If no parties get a clear majority, the Governor can use his discretion in selecting the Chief Minister who is most likely to command a majority in the State Legislative Assembly.
4. If the Council of Ministers loses majority in the State Assembly and refuses to resign, the Governor can dismiss the Government.
5. The Governor can recommend dissolution if no party is in a position to form a stable Government.
6. The Governor can send back the bill passed by the State Legislature for reconsideration. But if that bill is passed with or without amendments and sent to the Governor, he has no choice but to give assent to that bill.
7. The Governor of a state is required by the constitution to exercise the functions in his discretions are :
The Governor of Assam shall, in his discretion, determine the amount payable by the State of Assam to the district council as royalty accruing from licenses for minerals.
Under article 239 (2), a Governor can be appointed as an administration of an adjoining Union Territory and in the capacity of the administrator, he will function independently of his Council of Minister.
The Governor has special responsibility with regard to certain matters. Though he is to consult his council of Ministers, the final decision shall be in his individual judgement which no court can question.
Under 371 (2), the Governor of Maharashtra and Gujarat have the special responsibility for taking steps for the development of Vidarbha and Saurashtra.
Under article 371 A, the Governor of Nagaland has special responsibility with regard to law and order in that State.
Under article 371 C, the Governor of Manipur has the special responsibility to secure the proper functioning of the committee of state assembly consisting of the members elected from the hilly areas.
Under article 371 F, The Governor of Sikkim has special responsibility to ensure social and economic advancement of different sections of the population of Sikkim.
Under article 371 H, the Governor of Arunachal Pradesh has special responsibility with respect to law and order and the decision in this regard by the Governor shall be final.
Under article 371 J , the Governor of Karnataka has the special responsibility for the establishment of a separate development board for Hyderabad Karnataka region. He will also ensure equitable opportunities and facilities for the people belonging to the said region in matters of public employment, education and vocational training.
The Governor has to oversee the functioning of the tribal councils of Assam, Meghalaya, Mizoram and Tripura. He has to ensure that these tribal councils discharge their functions effectively and efficiently.
Similarly, the Governor has special responsibility with regard to areas under the Fifth schedule of our constitution. He has to ensure that the tribal councils operating in the Fifth Schedule area are discharging their functions efficiently.
Different judgements of the Supreme Court with regard to discretionary power of the Governor
1. In S R Bommai vs Union of India (1994), the Supreme Court held that the floor test in the assembly is the best way to determine majority. Whether a party enjoys a majority in the legislative assembly will be determined on the floor of the House. It should not be based upon the subjective satisfaction of the Governor.
2. Similarly it held that the report of the Governor to the President for the imposition of the President rule is subject to judicial review.
3.In the Rameshwar Prasad vs Union of India (2006), the Supreme Court held the dissolution of Bihar Assembly unconstitutional, It held that the Governor acted without verifying if a party could form Government. Thus, the actions of the Governor are subject to judicial review.
4. In the case of Nabam Rebia vs Deputy Speaker (2016), the Supreme Court held that the Governor cannot act on his own to summon, prorogue or dissolve assembly. Actions of the Governor must be based on aid and advice of the council of Ministers.
5. In the case of Shamsher Singh vs State of Punjab, the Supreme Court held that the Governor is bound by aid and advice of the council of Ministers, discretion of the Governor is very much limited and this should be used only where the constitution specifically allows him.
The present position of the Governor
1. Governors are now primarily bound by the advice of the Council of Ministers with having limited discretionary powers. Moreover, these discretionary powers are subject to strict judicial review. In the case of the State of Tamil Nadu vs the Governor of Tamil Nadu 2025, the Supreme Court restricted discretion in reserving re-enacted bills.
2. He is expected to act as an impartial constitutional head and not as a partition agent.
3. The Governor should respect the State Government’s authority while acting as a link between the state and the Union Government. He should not do anything which would subvert the federal spirit in our country.
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