The Constitution makes the Governor a component part of the State Legislature (Article 168). He cannot be a member of either House of that Legislature. In order to become an Act, every Bill passed by the State Legislature must receive his assent or, having been reserved by him for President’s consideration, receive the assent of the President. If the Governor or the President, as the case may be, with holds his assent, the Bill fails to become law.
Article 200
Article 200 provides that when a Bill passed by the State Legislature, is presented to the Governor, the Governor shall declare—
(a) that he assents to the Bill; or
(b) that he withholds assent therefrom; or
(c) that he reserves the Bill for the President’s consideration; or
(d) the Governor may, as soon as possible, return the Bill (other than a Money Bill) with a message for re-consideration by the State Legislature. But, if the Bill is again passed by the Legislature with or without amendment, the Governor shall not withhold assent therefrom (First Proviso); or
(e) if in the opinion of the Governor, the Bill, if it became law, would so derogate from the powers of the High Court as to endanger its constitutional position, he shall not assent to but shall reserve it for the consideration of the President (Second Proviso).
If the Governor reserves a Bill for President’s consideration, the enactment of the Bill then depends on the assent or refusal of assent by the President.
In the case of a reserved Bill, the President shall, under Article 201—, either declare his assent or withhold his assent thereto. Instead of following either of these courses, the President may (if the Bill is not a Money Bill) direct the Governor to return the Bill together with a message to the State Legislature for reconsideration.
The State Legislature shall then reconsider the Bill within 6 months of its receipt and, if it is again passed, it shall be presented again to the President for his consideration. In contrast with the power of the Governor regarding a reconsidered Bill, it is not obligatory for the President to give his assent to a reconsidered Bill.
State Bills reserved for Presidents’ consideration under the Constitution, may be classified as follows:—
I. Bills which must be reserved for President’s consideration, In this category come Bills—
(i) which so derogate from the powers of the High Court, as to endanger the position which that Court is by this Constitution designed to fill (Second Proviso to Article 200);
(ii) which relate to imposition of taxes on water or electricity in certain cases, and attract the provisions of Clause (2) of Article 288; and
(iii) which fall within clause (4) (a) (ii) of Article 360, during a Financial Emergency.
II. Bills which may be reserved for President’s consideration and assent for specific purposes
(i) To secure immunity from operation of Articles 14 and 19. These are Bills for— (a) acquisition of estates, etc. [First Proviso to Article 31A(I)]; (b) giving effect to Directive Principles of State Policy (Proviso to Article 31C).
(ii) A Bill relating to a subject enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President’s assent in terms of Article 254(2).
(iii) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the Proviso to Article 304(b) read with Article 255.
III. Bills which may not specifically fall under any of the above categories, yet may be reserved by the Governor for President’s consideration under Article 200.
LEGISLATIVE HISTORY OF ARTICLES 200, 201— AND 254
For appreciating these issues in the proper perspective, it is necessary to have a short look at the historical background of these provisions. Article 200 uses the phraseology of Section 75 of the Government of India Act, 1935 but makes two main departures from it:—
(a) It omits the words ‘in his discretion’.
(b) It adds at the end of the first proviso, the words ‘and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom’.
In order to gauge the significance and effect of these departures, we must hark back to the Constitutionmakers.
The provisions which finally emerged from the Constituent Assembly as Articles 200 and 201—, were, to start with, in the form of Clauses 147 and 148 of the Draft Constitution prepared by the Constitutional Adviser. These were renumbered by the Drafting Committee as Articles 175 and 176, respectively. The first paragraph of the Draft Article 175 was substantially similar to that of the present Article 200.
Thereunder, the Governor could assent to the Bill or withhold assent therefrom or reserve it for the consideration of the President. The proviso to this Draft Article provided that in the case of a Bill passed by a State Legislature having only one House, the Governor may in his discretion return the Bill with a message for reconsideration to it, but he shall not withhold his assent from a Bill which had been passed again by the Legislature with or without amendment. It is noteworthy that in discharging his functions under this proviso, the Governor was expressly authorised to act in the exercise of his discretion. The Second Proviso to Article 200 was not originally there in the Draft Article. It was added by the Constituent Assembly at the final stage of the discussions.
Draft Article 176 was in pari materia with the present Article 201—.
After prolonged consideration, the Constituent Assembly decided to have nominated, instead of elected, Governors. Consequent upon this decision, they deleted from the various provisions of the Constitution, including the Draft Article 175, all references to the discretionary powers of the Governor. However, the Constituent Assembly did not exclude the reference to the discretionary power of the Governor from the Draft Article 143 (later renumbered as Article 163 of the Constitution).
Some members of the Constituent Assembly suggested to the Drafting Committee that the words which would enable the Governor to withhold assent from a Bill or reserve it for the consideration of the President or return the Bill for reconsideration, should be deleted from the Draft Article 175.
The implication of a further suggestion which one of the Members made, was that the President should not have the power under Draft Article 176 to withhold assent from a Bill reserved by the Governor for his consideration where such Bill having been returned to the State Legislature with a message for reconsideration in pursuance of directions of the President under that Article, was passed again with or without amendment.
In the context of these objections, the Constitutional Adviser submitted a Note to the Drafting Committee explaining the need for these provisions and the manner in which the functions conferred thereunder would be exercised by the Governor. The Note reads as follows:
“Under Article 175, the power of the Governor to declare that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President will be exercised by him on the advice of his Ministers. Accordingly, there will be hardly any occasion to withhold assent from a Bill which has been passed by the Legislature. There is therefore no harm in retaining the provision with regard to the withholding of assent from a Bill in this article.
There may be cases where it might be necessary for the Governor to exercise the power of withholding assent even on the advice of the Ministers. If after a Bill is passed by the Legislature, the Ministers resign before the Bill is assented to by the Governor, the new Ministry which would be formed might not want the Bill to be enacted and might advise the Governor to withhold assent from the Bill. But if the provision relating to the withholding of assent is omitted from this article, it will not be possible for the Governor to withhold it.
There is thus a distinct advantage in retaining the provision relating to the withholding of assent in this Article. The provision regarding reservation of a Bill for the consideration of the President is also necessary in view of the provisions contained in clause (2) of Article 231.”
A suggestion was made by some members for deletion of clause (2) of the Draft Article 231 (corresponding to clause (2) of Article 254 of the Constitution). The Drafting Committee rejected it for reasons noted by them, as follows:—
“If this amendment is accepted, then the Legislatures of the States will hardly have any power to make laws with respect to any matter enumerated in the Concurrent List with regard to which any provision exists in any earlier law made by Parliament or in any existing law with respect to that matter, as the expression “repugnant” has sometimes been construed very widely. This would unduly restrict the powers of the Legislatures of the States to make laws with respect to matters in the Concurrent List.”
The above survey of the Constitution-making process brings out clearly that the Governor should, as a rule, exercise his functions under Article 200 on the advice of his Council of Ministers. By saying that “there will be hardly any occasion” for the Governor to exercise these powers irrespective of the advice of his Ministers, the Constitution-makers were emphasising that in the context of Article 200, occasions for the exercise of his discretionary power by the Governor would be extremely rare.
The process of exclusion and inclusion by which they fashioned and finalised the provisions of Article 200, reinforces this conclusion. Deliberately departing from the language of Section 75 of the Government of India Act, 1935, they omitted from the substantive part and the First Proviso of Article 200, the phrase “in his discretion” and added at the end of the First Proviso, words which expressly divest the Governor of the power to veto a reconsidered Bill whether passed in the original or amended form.
It was further clarified by the Constitution-makers that the power of reserving Bills for the consideration of the President conferred by the Article, was a necessary channel for references under Article 254(2) to save the competence of the State Legislatures from being unduly restricted by the operation of the rule of repugnancy embodied in clause (1) of that Article.
The point sought to be made out was that since the power of reserving a Bill for President’s consideration under Article 200 read with Article 254(2) was being conferred primarily for preserving the States’ legislative competence in the Concurrent sphere, it would be exercised by the Governor on the advice of his Ministers.