Governor, Unelected Symbolic Head Of State, Cannot Veto Legislature By Withholding Assent To Bills Indefinitely: Supreme Court

The Supreme Court held that the Governor. a symbolic and unelected head of a State, cannot virtually veto its legislature by withholding his assents on Bills being passed by it indefinitely. 

The court said that, if the Governor decides to withhold assent, he must communicate the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever, the court said.

The Court held thus in a writ petition filed by the State of Punjab against the Governor of Punjab on the ground that the Governor did not assent to four Bills which were passed by the Vidhan Sabha nor they were returned.

The three-Judge Bench comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, "The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage"

Senior Advocate Abhishek Manu Singhvi and Advocate General Gurminder Singh appeared for the State of Punjab while Senior Advocate Satya Pal Jain appeared for the Principal Secretary to the Governor.

Factual Background -

On February 22, 2023, the Council of Ministers of the Government of Punjab forwarded a recommendation to the Governor seeking the summoning of the Punjab Vidhan Sabha for its Budget Session, however, the Governor refused to do so on the ground that he was seeking legal advice. Hence, a petition was filed before the Supreme Court and it was observed by the Court that there was no occasion to seek legal advice. Thereafter, the Sixteenth Punjab Vidhan Sabha was summoned on March 3 and the Speaker adjourned the session. In June month, acting in pursuance of the powers under the second proviso to Rule 16 of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha (Punjab Legislative Assembly), the Speaker reconvened the sitting of the session of the Vidhan Sabha. During this session, four Bills were passed but no action was taken by the Governor on such Bills.

Subsequently, the session of the Vidhan Sabha was sought to be reconvened on October 19 since three Money Bills were to be introduced. The Governor’s recommendation was required in terms of Article 207(1) of the Constitution for the introduction of the Bill in Vidhan Sabha. The Chief Minister addressed a communication to the Governor noting that though the Sikh Gurudwaras (Amendment) Bill 2023 was submitted for assent on June 26, 2023, it had not been assented to till then. The Governor thereby cast doubt on the legitimacy and legality of those Bills and stated that he would take action according to law after the legality of the Vidhan Sabha session be examined. Notably, the Governor did not declare in any public notification that he was withholding his assent to the Bills. Aggrieved by such inaction, the State of Punjab was before the Apex Court.

The Supreme Court in view of the aforesaid facts noted, “Two issues arise for consideration: first, whether the Governor can withhold action on Bills which have been passed by the State Legislature; and second, whether it is permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session which has been adjourned but has not been prorogued.”

The Court analysed the case in the following manner:

A. The Governor is a symbolic head and cannot withhold action on Bills passed by the State Legislature

The Court referred to the famous cases such as Samsher Singh v. State of Punjab (1974) 2 SCC 831 and SR Bommai v. Union of India (1994) 3 SCC 1. It said that the Governor, as an unelected Head of the State is entrusted with certain constitutional powers but the same cannot be used to thwart the normal course of lawmaking by the State Legislatures.

The Court further said, “… The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso. The Governor is under Article 168 a part of the legislature and is bound by the constitutional regime."

The Court observed that when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso and that the Governor under Article 168, is a part of the legislature and is bound by the constitutional regime.

B. Reconvening a sitting of the Vidhan Sabha which has not been prorogued is permissible in law and is within the exclusive domain of the Speaker

1. Distinction between adjournment and prorogation

The Court under this head noted, “Rule 16 indicates that the Vidhan Sabha may be adjourned by its own order from time to time. This is however subject to the provisions of the Constitution and the Rules. In terms of the first proviso, a motion for adjournment either to a day or sine die requires consultation with the Speaker. Significantly, in terms of the second proviso, the Speaker is empowered in public interest to call a meeting of the Vidhan Sabha earlier than the date to which it has been adjourned or at any time after it has been adjourned sine die. Therefore, it is clear that the Rules of Procedure expressly recognize a situation where the Speaker reconvenes a sitting of the Vidhan Sabha which has been adjourned sine die but not prorogued.”

The Court also noted that the provision empowering the Speaker to reconvene a sitting of the Vidhan Sabha on any date after it has been adjourned sine die is not unique to the Rules of Procedure of the Punjab Vidhan Sabha and that a review of the Rules of Procedure of State Legislatures for various States indicates that almost all of them contain an identical or similar provision.

“… it is common practice for the Rules of Procedure of State Legislatures and Parliament to permit the Speaker to call a sitting of the House after it has been adjourned sine die. … The Constitution and established legislative practice distinguish between adjournment sine die and prorogation of the session of the House. In the case before us the Vidhan Sabha was adjourned on 22 March 2023 without prorogation. Therefore, the Speaker was empowered to reconvene the sittings of the House within the same session”, added the Court.

2. Exclusive domain of the Speaker to regulate the procedure of the House

Under this head, the Court said that it was legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation and further, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House.

“The submission that the declaration sought by the State of Punjab in the present petition namely, that the sessions of the Vidhan Sabha and the business transacted was legal indicates that the State of Punjab is unsure about the validity of the sessions is misconceived. The declaration has not been sought in a vacuum but in response to the Governor’s inaction on the Bills purportedly on the grounds that the sessions were invalid. In fact, as evidenced by the correspondence, the State of Punjab has consistently held the position that the sessions of the Vidhan Sabha and the business transacted therein are legal and constitutionally valid. The fact that a petitioner has approached this Court seeking declaratory relief cannot be used to the petitioner’s detriment”, remarked the Court.

Conclusion -

The Court, therefore, held that there is no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha which was held on June 19, June 20, and October 20 and any attempt to cast doubt on the session of the legislature would be replete with grave perils to democracy. Furthermore, the Court observed that the Speaker who has been recognized to be a guardian of the privileges of the House and the constitutionally recognized authority who represents the House, was acting well within his jurisdiction in adjourning the House sine die.

“The re-convening of the House was within the ambit of Rule 16 of the Rules of Procedure. Casting doubt on the validity of the session of the House is not a constitutional option open to the Governor. … We are, therefore, of the view that the Governor of Punjab must now proceed to take a decision on the Bills which have been submitted for assent on the basis that the sitting of the House which was conducted on 19 June 2023, 20 June 2023 and 20 October 2023 was constitutionally valid”, concluded the Court.

Accordingly, the Apex Court disposed of the petition.

Cause Title- State of Punjab v. Principal Secretary to the Governor of Punjab and Another (Neutral Citation: 2023 INSC 1017)

Click here to read/download the Judgment