SC reaffirms Governor cannot use constitutional powers to thwart normal course of lawmaking by State
Nov 23, 2023
New Delhi [India], November 23 : The Supreme Court has said that the Governor, as an unelected Head of State, is entrusted with certain constitutional powers, and its power cannot be used to thwart the normal course of lawmaking by the state legislatures.
"The Governor, as an unelected Head of State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the state legislatures," said a bench headed by Chief Justice of India DY Chandrachud.
Besides CJI, the bench comprising J B Pardiwala and Manoj Misra passed the remarks while hearing a petition filed by the Punjab Government.
The order was passed on November 10 and detailed judgement was made available today.
On November 10, 2023, the court held the sessions of Vidhan Sabha, which were held on June 19, 20 and October 20, this year.
"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," the court ruled.
"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," the court said.
"Such a course of action would be contrary to the 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 1688, a part of the legislature and is bound by the constitutional regime," the court said.
"Insofar as Money Bills are concerned, the power of the Governor to return a Bill in
terms of the first proviso are excluded from the purview of the constitutional power of the Governor. Money Bills are governed by Article 207, in terms of which the recommendation of the Governor is required for the introduction of the Bill on a matter specified in clauses (a) to (f) of clause (1) of Article 199," the court said.
"In a parliamentary form of democracy, real power vests in the elected representatives of the people. The governments, both in the States and at the Centre
consist of members of the State Legislature and, as the case may be, Parliament," the court said.
"Members of the government in a Cabinet form of government are accountable to and subject to scrutiny by the legislature. The Governor as an appointee of the President is the titular head of State. The fundamental principle of constitutional law which has been consistently followed since the Constitution was adopted is that the Governor acts on the 'aid and advise' of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor."
"This principle cements the bedrock of the constitutional foundation that the power to take decisions affecting the governance of the State, or as the case may be of the nation essentially lies with the elected arm of the government," the court said.
"The Governor is intended to be a constitutional statesman, guiding the government on matters of constitutional concern," the court said.
