The present excerpt is taken from the judgment of State of Tamilnadu v. Governor of Tamilnadu (2025).
A plain reading of Article 200 of the Constitution indicates that when a bill is passed by the legislature of a State, it is mandatorily required to be placed before the Governor for his assent. This is because without receiving the assent of the President, a bill cannot become an Act. However, when a bill is presented to the Governor for his assent, the Governor is required to make a declaration from the three options available to him under the substantive part of Article 200, that is, to assent, to withhold assent, or to reserve the bill for the consideration of the President.
The first proviso prescribes a mechanism whereby the Governor may return a bill, which is not a Money Bill, back to the State legislature requesting them to reconsider the bill or certain provisions thereof or consider the possibility of making certain amendments to it. Once a bill is so returned by the Governor, the State legislature is required to take note of the suggestions made by the Governor and reconsider the bill accordingly. If the bill, after such reconsideration by the State Legislature is again passed and presented to the Governor, then in such circumstances as per the first proviso, the Governor would then be prohibited from withholding his assent to the bill.
The second proviso provides for a specific situation wherein the Governor is mandated to reserve a bill for the consideration of the President if, in his opinion, the bill upon becoming law, would so derogate from the powers of the High Court as to endanger the position which the High Court has been designed to fill by the Constitution.
The First Proviso of Article 200
The proviso stipulates that when any bill, other than a Money Bill, is presented to the Governor for assent, he may, as soon as possible, return it to the State legislature, together with a message. As regards the contents of the message, the proviso stipulates that the Governor may request the House(s) of the State legislature to reconsider the bill or certain parts of it, and also explore the desirability of introducing certain amendments as may be suggested by the Governor in the message. Once the bill is so returned together with the message, the House(s) are required to reconsider the bill in accordance with the recommendations contained in the message of the Governor. If the bill is then passed again by the House(s), with or without amendments, and presented to the Governor, then the Governor cannot withhold assent from such a bill.
A close reading of the first proviso reveals that the action of returning the bill to the State legislature by the Governor is qualified by the expression “as soon as possible”. However, once the bill has been returned to the State legislature by the Governor, there is no such expediency required on part of the State legislature in reconsidering the bill. Further, once the bill is reconsidered and passed again by the State legislature, there is again a mandate on the Governor not to withhold assent to such a bill. The only obligation upon the State legislature is to mandatorily take into consideration the suggestions contained in the message sent by the Governor along with the bill. However, the State Legislature is not under an obligation to mandatorily introduce any amendments suggested by the Governor and it may proceed to repass the bill without any amendments.
Since there is no obligation on the State legislature to repass the bill returned by the Governor under the first proviso, the expression “falls-through” can only refer to those situations where the State legislature elects not to pass the bill for reconsideration again, and in such circumstances causing the bill to lapse. There is nothing in the first proviso which gives the Governor the discretion to initiate the procedural machinery described therein. Therefore, the first proviso, cannot be treated as an independent course of action severable from the option of withholding of assent.
The use of the expression “as soon as possible” in the first proviso makes it clear that the Constitution has imposed a sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent. At the same time, that the use of the expression “may” in the first proviso, as explained in State of Punjab[1] does not confer a discretion upon the Governor to decide whether to act in accordance with the procedure prescribed in the first proviso. On the contrary, it only denotes that the first proviso would be applicable only when the option of withholding of assent is exercised.
In other words, the expression “may” is used keeping in mind that there are three options that the Governor may choose from when a bill is presented to him for assent. Therefore, there is no requirement for construing the expression “may” as “shall”, and the interpretation provided in State of Punjab (supra) and further explained by us does not merit construing the use of “may” as “shall”, as it would result in a logical absurdity insofar as it would make the compliance with the procedure laid down in the first proviso mandatory in the exercise of all three options available to the Governor under the substantive part of Article 200 of the Constitution.
It is also remarkable to take note of the expression “if the bill is passed again” which signifies that the ultimate discretion to decide whether the State legislature wants to repass the bill or not continues to remain the prerogative of the State legislature alone. Similarly, the use of the expression “with or without amendment” denotes that even if the State legislature decides to reconsider the bill, the discretion to repass it with or without the amendments suggested by the Governor again continues to be their sole prerogative. In order to obviate any further confusion, we deem it appropriate to clarify that the use of the expression “shall reconsider the bill accordingly” does not indicate that it is obligatory for the State legislature to take up the bill for reconsideration. The word “shall” used in this expression must be read in conjunction with the word “accordingly”.
The use of “shall” in this context is only for the limited purpose that if the State legislature in its discretion does decide to not allow the bill to “fall through” by taking it up for reconsideration, then the scope of such reconsideration must at the very least encompass the suggestions communicated by the Governor in his message. The word “shall” used herein cannot be singled out and construed devoid of its context.
The structure of Article 200 is also helpful in discerning the meaning of the content that it holds. There is a substantive part of the provision and there are two provisos to the substantive part. In the substantive part, there are three options for the Governor to choose from, each separated by the conjunction “or” thereby indicating the mutual exclusivity of the three options. If the Governor opts for the first option and grants assent to the bill presented to him, the first proviso doesn’t come into consideration.
Similarly, if the Governor chooses the third option and reserves the bill for the consideration of the President, there is no occasion for the operation of first proviso. The second proviso is overarching in nature and provides that in the situation as described therein, the Governor can only exercise one option, that is, reserve the bill for the consideration of the President.
The use of the expression “shall declare” in the substantive part of Article 200 indicates that the Governor is required to make a declaration from the three choices provided to him under the substantive part and there cannot be any fourth course of action. As soon as assent is granted, the bill becomes an Act and there is no scope thereafter for reservation for the consideration of the President or returning back to the State legislature. If reservation for the consideration of the President is declared then thereafter no returning of the bill to the State legislature can take place, unless the President so directs under the proviso to Article 201. Thus, it is only upon the declaration of withholding of assent that the first proviso is animates into action.
Another important aspect that may be pointed out is that the observations made in Valluri Basavaiah Chowdhary[2] and Hoechst[3], respectively state that except in the case of a Money Bill, the Governor may withhold assent. A bare reading of Article 200 indicates that there is no restriction in the substantive part that prohibits the Governor from declaring that he withholds assent to a Money Bill, and it is only under the first proviso that such a restriction can be found. Therefore, it is only when the option of the withholding of assent in the substantive part of Article 200 is read along with the first proviso that Money Bills could be said to be excluded from the purview of withholding of assent under the substantive part of Article 200.
Thus, rather than fortifying the argument of the learned Attorney General, the observations made in Valluri Basavaiah Chowdhary (supra) and reiterated in Hoechst (supra) only reinforce the intricate and inseparable connection between the exercise of the option of withholding of assent by the Governor and coming into operation of the procedure prescribed in the first proviso. The dictum of the above mentioned two decisions in no way renders the decision in State of Punjab (supra) per-incuriam, and rather bolsters the line of reasoning adopted by this Court therein.
Therefore, the use of the expression “the Bill falls through unless the procedure indicated in the first proviso is followed” should be construed in the context of the entire procedure described in the first proviso. Seen thus, it would mean that the bill would fall-through if the bill, having been returned by the Governor, is not passed again by the State legislature and presented again to the Governor for his assent. The fallacy of the argument canvassed by the learned Attorney General lies in the very fact that he has construed the observations of this Court, pertaining to compliance with the procedural requirement under the first proviso, to mean that the mechanism under the first proviso can only be initiated upon the desire and discretion of the Governor.
This Court in Nambudiri (supra) explained as to how the State legislature may cause a bill to fall through with which they no longer intend to proceed by not reconsidering and repassing it, once it has been returned by the Governor with the deceleration of withholding of assent. This Court held that the stage of assent could only be arrived at after the stage of reconsideration and repassing by the State legislature has been successfully crossed. The relevant observations read as under: –
“16. […] Similarly, when it is said that if the Bill is passed again the Governor shall not withhold assent therefrom it does not postulate the existence of the same House because even if it is the successor House which passes it it is true to say that the Bill has been passed again because in fact it had been passed on an early occasion. Besides, if the effect of Article 196 is that the Bills pending assent do not lapse on the dissolution of the House then the relevant provisions of Article 200 must be read in the light of that conclusion.
In our opinion, there is nothing in the proviso to Article 201 which is inconsistent with the basic concept of democratic Government in asking a successor House to reconsider the Bill with the amendments suggested by the President because the proviso makes it perfectly clear that it is open to the successor House to throw out the Bill altogether. It is only if the Bill is passed by the successor House that the stage is reached to present it to the Governor or the President for his assent, not otherwise.”
There is one another way of looking at Article 200. The procedure, as prescribed under the scheme of the provision, involves and envisages the actual motion of a bill from one constitutional authority to another. The Article starts with the requirement of the bill having to be mandatorily presented to the Governor after it has been passed by the State legislature. Thereafter, there is an obligation on the Governor to make a choice from one of the three options provided in the substantive part of the Article and also declare such a decision. Here, if assent is declared, then the bill becomes an Act and the Government may thereafter take steps to notify the same in the official Gazette.
If the Governor declares that bill is being reserved for consideration of the President as per the second proviso or otherwise, then the bill travels from the Governor to the President, whereupon Article 201 comes into play. The mechanism provided in the first proviso also envisages the movement of the bill from the Governor to the State legislature and then back to the Governor upon being passed again. The expression “as soon as possible” appearing in the first proviso infuses a sense of urgency and expediency in the mechanism of returning of bills by the Governor. It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency. It is trite to say that Article 200 occupies an important role of giving the bills passed by the State legislature the authority of an Act.
Without the procedure envisaged under Article 200, the bills remain mere pieces of paper, skeletons without any flesh or lifeblood flowing through their veins, mere documentation of the aspirations of the people without any possibility of bringing them to fruition. The only way by which the option of withholding of assent provided in the substantive part of Article 200 can be reconciled with the scheme permeating the remainder of the provision is by reading it in conjunction with the first proviso. It is only when the withholding of assent is tempered with the requirement of following the procedure prescribed in the first proviso that the constitutional object of ensuring that the law-making machinery at the State level keeps on running unhindered can be fulfilled.
Any other reading of the provision that construes the option of withholding of assent without attaching it to the mechanism prescribed in the first proviso would render the very idea of smooth functioning of the law-making process nugatory and would vest with the Governor untrammeled powers of thwarting the legislative machinery and in effect the will and aspirations of the people whose voices the legislature represents.
Thus, in light of the aforesaid discussion, it becomes clear that there are only three courses of action available to the Governor to choose from when a bill is presented to him for assent under Article 200. The first proviso is not an independent fourth course of action but intrinsically attached to the option of withholding of assent. In other words, the first proviso is clarificatory and only elaborates the procedure to be followed in case the option of withholding of assent is invoked by the Governor.
The use of the expression “shall” in the substantive part of Article 200 read with the expression “as soon as possible” used in the first proviso indicates that there is no pocket veto available to the Governor while he is exercising the powers under Article 200. As we have also discussed in the subsequent parts of this judgment, inaction on part of the Governor to take a decision when a bill is presented to him under Article 200 is grossly violative of the constitutional scheme of expediency which permeates the provision.
The Governor, in exercise of his powers under Article 200, also does not possess any absolute veto. He is mandated to take a decision from among the three options that are provided in the substantive part of the Article 200. In case of withholding of assent, the Governor is bound to follow the procedure prescribed under the first proviso and assent to the bill if it is ultimately presented to him for assent after being repassed by the State legislature. The Governor may also reserve certain bills for the consideration of the President.
However, in no case has the Governor been conferred with the power to veto a bill which is presented to him. He is envisaged as an intermediary stop in the journey of the bill towards becoming an Act. When a bill comes to the Governor, he may forthwith assent to it, or postpone the grant of assent by exercising the option of withholding of assent but only for so long till the bill comes back to him after reconsideration, or he may forward the bill to the President whereupon the procedure prescribed under Article 201 is to be followed.
Thus, in none of these cases can the Governor permanently keep a bill with him without according assent to it, nor can he declare a simpliciter withholding of assent thereby killing the bill.
[1] State of Punjab v. Principal Secretary to the Governor of Punjab reported in (2024) 1 SCC 384
[2] Union of India and others Vs. Valluri Basavalah Chowdhary and others
[3] [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248]