In a latest judgment delivered by a bench of Justices JB Pardiwala and R Mahadevan, the Supreme Court has prescribed a deadline of 3 months on the President’s power to grant or refuse assent to a Bill reserved by the Governor for his consideration. In the verdict passed in The State of Tamil Nadu v The Governor of Tamil Nadu and Anr, the Apex Court examined the ambit of powers of the President and the Governor conferred under Articles 200 and 201 of the Constitution. Notably, the provisions do not specify any time limit for the President to exercise his powers, but the Supreme Court has added a time limit within which the President will now be required to make a decision.
Article 200, inter alia, talks about the Governor’s power to reserve a Bill passed by a state legislature for the consideration of the President. Article 201 elaborates the President’s power to grant or refuse assent to a Bill sent to him by a Governor.
The President is to decide on the Bills within 3 months
Putting a time limit on the President’s power under Article 201, the Supreme Court held that the President should decide on the Bills sent to him by the Governor for consideration within 3 months, and that any delay beyond the prescribed time limit should be justified by recording reasons. “The President is required to decide on the bills reserved for his consideration by the Governor within three months from the date on which such reference is received. In case any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State,” the court said.
Emphasising that the President and the Governor can not exercise their powers under the Constitution in an arbitrary manner by delaying the Bills indefinitely, the Supreme Court advised against exercising the powers in a piecemeal manner. “While in the preceding paragraphs we have elaborated that the Governor does not hold the power to exercise ‘absolute veto’ on any bill, we see no reason why the same standard would also not apply to the President under Article 201 as well. The President is not an exception to this default rule, which permeates throughout our Constitution. Such unbridled powers cannot be said to remain in either of these constitutional posts,” the Court said. “Piecemeal exercise of the proviso to Article 201 must be dissuaded. This is to prevent the endless loop of sending and re-sending of the bill that may ensue between the President acting under the proviso to Article 201 and the House or Houses of the State Legislature,” the Court added.
The state government can approach the Supreme Court against the President
The court added that if the President fails to decide on a Bill within 3 months, then the State government can seek the issuance of the writ of mandamus from the Supreme Court against the President. “Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time limit as has been prescribed by us in paragraph 391 of this judgment, then it shall be open to the State Government to seek a writ of mandamus from this Court,” the Court said.
Constitutionality of the Bill to be decided by the judiciary and not the executive
Explaining the limitations of the executive in deciding the constitutionality of a legislation, the Supreme Court said that the power to decide this lies with the judiciary and not the executive. “We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill, and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill,” the Court asserted.
The Court added that the President can seek its advice on the constitutionality of a Bill reserved for his assent under Article 143 of the Constitution. “Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to this Court in exercise of his powers under Article 143 of the Constitution, ” the Court explained.
When the executive can deviate from the Supreme Court’s decision on constitutionality
The Supreme Court pointed out the situation when both the legislature and the executive may not act per the advice of the Supreme Court regarding the constitutionality of the Bill. The Court said that the President may deviate from the opinion of the Supreme Court when the grounds of reservation of the Bill include certain policy considerations. However, he must record cogent reasons for the decision. “In our considered view, the only reason for which the legislative or the executive wing may not take note of the opinion delivered by the Supreme Court under Article 143 is when the grounds on which a State bill was reserved for the consideration of the President, are not purely legal but also involve certain policy considerations, which may outweigh the issue of constitutionality. In such cases, if the President acts contrary to the advice of this Court and withholds assent to a bill, he must record cogent reasons and materials that justify not granting assent, ” the Court noted.
