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The Blur Lines of Assent and Dissent

The Chief Minister of Tamil Nadu MK Stalin has written to the non-BJP ruled states to pass resolution urging the centre and the President to fix a time limit for Governors to approve Bills passed by respective assemblies. This comes on the backdrop of flaring tensions between the Tamil Nadu government and Governor on issues like allocation of seats in NEET entrance exam to the Tamizhagam controversy.

The most recent one being bill banning online gambling which was given assent by the governor after a furor of chaos. The bigger problem is the relation amongst state executives, which has found itself on the crossroads as the other non-BJP ruled states like Chhattisgarh where governors are being accused of sitting over the bill passed by the elected representatives of people. These states have often criticised the working of the governor accusing them of being less as a constitutional head of state and more as an agent of the Central ruling faction.

Part VI of the Indian Constitution deals with the state executives in the country. Article 153 states that Governor is the constitutional head of state appointed by the President and is bound by the advice of council of ministers. Article 200 of the Constitution provides for four alternative courses of action for a governor when a bill is presented to him for his assent after being passed by the legislature:
  1. The governor can straightaway give his assent.
  2. The governor can withhold his assent.
  3. The may also reserve it for the consideration of the president, in that case the assent is given or withheld by the president.
  4. The other option is to return the bill to the legislature with the request that it may reconsider the bill or any particular provision of the bill.
The governor can suggest amendments to the bill however if legislature again passes the bill without accepting any amendments suggested by Governor, he is constitutionally bound to give assent to the bills. Accordingly, Governor of a state unlike the President of India is conferred with power to act at his own discretion.

There are two categories of discretional powers for the governor - Constitutional discretion and Situational discretion. The withholding of bills which has sparked controversy was justified by the Governor of Tamil Nadu RN Ravi as a matter of "Governor's discretion".

The Constitution does not provide for any fixed time frame in regards to Governor's assent to the bills. Article 200 also does not lay down any time frame for the Governor to act on the bill. He can postpone his decision indefinitely and this is exactly why Tamil Nadu government is pressing for an amendment for making the Governor's responsible for fulfilling their constitutional duties. The government has argued that Governor is trying to circumvent and take advantage of an omission in the provision of the Constitution.

Furthermore, it is to be noted that Article 361 states that the President or Governor is not answerable to any court for anything done in the exercise and performance of their powers and duties. This further eludes responsibility and casts a shadow of doubt towards the functioning of the Governors.

It is interesting to note that these debates usually never come up with the Presidents by the virtue of their election process. Presidents are usually the candidates of parties with maximum representation whereas in the case of Governors, they are appointed by the President in accordance with the wills of the Central Government. It is but obvious of the states having a party other than the one at centre to feel the heat. As in Tamil Nadu's case, DMK is a staunch critic of the ruling BJP and is also the third largest party of the Lok Sabha.

Position of Governor in the constitutional set up of India was explained by Dr. Ambedkar where he explained that the Governor under the Constitution has no functions which he can discharge by himself which was cited by the Supreme Court in the Nabam Rebia case (2016). In the Shamsher Singh case (1974), Supreme Court held that President and Governor shall exercise their formal constitutional powers only upon and in accordance with the advice of their ministers save in a few well-known exceptional situations.

There have been attempts to address the alleged partisan role played by the Governors. National Commission to Review the Working of the Constitution in 2000 suggested that the Governor of a state should be appointed by the President after consultation with the Chief minister of that state. Sarkaria Commission set up in 1983 proposed that the Vice President of India and Speaker of Lok Sabha should be consulted by the Prime Minister in selection of Governors.

Withholding assent is clearly an undemocratic process and is no where mentioned in Article 200 of the Constitution. Scholars have also contended that giving assent to the bill passed by the legislature is a part of the legislative process and in no way encroaches the executive powers of the Governor. Accordingly, it is against federalism and undermines the democratic process as it neutralises entire legislative exercise by an elected legislature enjoying support of the people.

Option of withholding assent is against federalism which is the undertone of the resolution passed by the Tamil Nadu's assembly proposals put forth by the Chief Minister MK Stalin. Though the bill in contention was given assent in the subsequent week by the Governor, the time for high pressing reforms have come. One can hope that the positive changes mainly in the form of amendments concerning gubernatorial role, powers, duties and responsibilities would be able to see the light of the day.

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