This is an edited excerpt from the judgment of State of Tamilnadu v. Governor of Tamilnadu (2025).
The deletion of the expression “in his discretion” both from the substantive part of Article 200 as well as from the first proviso to it signifies that the intention of the framers of the Constitution was to ensure that the ordinary exercise of the Governor’s function under Article 200 was to be in accordance with the aid and advice tendered to him by the Council of Ministers.
The view expressed by Shri. Brajeshwar Prasad that the Governor should be conferred with some veto to negate an unsound legislation was expressly rejected by the Constituent Assembly. Further, it was explained by Mr. T.T. Krishnamachari that the first proviso was in the form of a saving clause where the Council of Ministers could ask the Governor to hold up a bill in which certain errors were discovered subsequent to its passage in the House(s), or to suitably respond to the popular sentiment expressed after such passage.
Pertinently, during the course of the debates, it was observed by Dr. B. R. Ambedkar that in a responsible form of government, there can be no room for the Governor to act in his discretion.
The deletion of the words “in his discretion” from Section 75 of the GoI Act, 1935 before adapting it as Article 200 of the Constitution must be understood in the right context. The GoI Act, 1919 introduced an element of provincial autonomy in the administration of the country, however, the Governor remained at the center of administration having reserve as well as emergency powers. With the advent of the GoI Act, 1935, the dyarchy at the provincial level was abolished, but the Governor, as the agent of the British Crown, continued to have the discretion to veto any legislation passed by the provincial legislature. The Governor could also in his discretion reserve any bill for the consideration of the Governor-General.
This power of the Governor was to be essentially exercised in accordance with the directions of the Governor-General. However, with the dawn of independence, and the framing of the Constitution, the model of governance which was adopted allowed the States to be supreme in their respective fields, with certain powers having been reserved for the Union to ensure the integrity of the nation and uniformity of policy in certain key areas. The Governor was no more required to have an all-pervasive control over the State and their responsibility towards the Union was to the extent of ensuring that the administration in the State was being done in conformity with the principles enshrined in the Constitution.
It is in this context that the power of the Governor to submit a report to the President under Article 356 and also the power under Article 200 to reserve a bill for the consideration of the President, is to be understood.
The Governor under the constitutional scheme is no longer envisaged as the Governor under the GoI Act, 1935, having the ultimate power to veto any legislation and subvert the collective will of the people being expressed through the legislature. If the power to withhold assent to bills or to reserve them for the consideration of the President is construed as falling within the exclusive discretionary domain of the Governor, who would be free to decide a course of action notwithstanding the aid and advice of the Council of Ministers, it would have the potential of turning him into a super-constitutional figure, having the power to bring to a complete halt, the operation of the legislative machinery in the State.
The Governor cannot be vested with such a power, the exercise of which would enable him to collude with the Union Cabinet and ensure the death of any and all legislation initiated by the State merely by reserving it for the consideration of the President, who under Article 201 is not bound to give assent to any legislation reserved for his consideration.
Thus, we are of the view that the Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows:
a. Where the bill is of a description as provided under the second proviso to Article 200;
b. Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision;
c. Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril as described in M.P. Special Police (supra).
Exception (a) as mentioned above is one which is expressly provided by the Constitution to fall within the ambit of discretionary powers of the Governor. Exception (b) flows from a reading of those provisions which require the mandatory assent of the President to a bill passed by the State legislature and thus are to be construed in light of the observations made in Nabam Rebia (supra) as instances “where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise.”
Exception (c) has to be construed and understood in the context of the observations made by this Court in M.P. Special Police (supra) as covering such “situations where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice.”