When Article 175 of the Draft Constitution, 1948 was taken up for consideration by the Constituent Assembly, certain amendments were moved by Dr. B.R. Ambedkar that came to be accepted, leading to the adoption of the draft Article 175 as Article 200 of our Constitution. The amendments were:
a. To remove the expression “in his discretion” appearing in the first proviso to Article 175;
b. To exclude Money Bills from the purview of the first proviso;
c. To enable the Governor to return the bills in all the States irrespective of whether there was a unicameral or a bicameral legislature.
Debates that took place in the Constituent Assembly
On the 30th of July, 1949, Dr. B.R. Ambedkar moved an amendment, as discussed aforesaid, for the substitution of the first proviso under draft Article 175, which later came to be successfully adopted by the Constituent Assembly. While moving for the substitution and highlighting that predominantly three key changes were sought to be made to the first proviso, he remarked that the words “in his discretion” under the draft Article 175 were sought to be deleted because it was felt that “in a responsible government, there can be no room for the Governor acting on discretion”[1].
Shri. Brajeshwar Prasad was not whole-heartedly in favor of the changes suggested to the first proviso and contended that they would strip the Governor of the power to veto a bill or reserve it for the consideration of the President, in his own discretion or initiative and he would be able to do so only when so advised by his Cabinet of Ministers. In his opinion, the change also meant that the Governor would not be able to veto a bill that has been passed twice by the Legislative Assembly, which he felt was not acceptable.
Shri. Brajeshwar Prasad acknowledged that there are two classes of cases in which a bill can be reserved for the consideration of the President –
One, where a certain Article of the Constitution requires the same and
two, when the Governor is advised by his Ministry to do so.
However, he advocated for a third category i.e., where the Governor would possess the power, in his discretion, to veto a bill passed by the Legislature, irrespective of whether it was passed once or twice by it. He supported the vesting of discretion in the hands of the Governor so that he could veto unjust and unsound legislation while also ensuring that there is a check on potentially disruptive legislative tendencies. From his standpoint, the fear of disruptive legislation was not imaginary but real in our country and he advocated that his proposal was in consonance with the traditions of the centralized system of Government that existed in our country until independence. He was of the view that the parliamentary form of polity was a new experiment to the facts of life in our country and it was required to be moderated and regulated. Expressing his lack of confidence in the provincial Ministers, he contended that empowering the Governor to act in his discretion would not be so objectionable since the Governor is also the representative of the Government of India and it is by virtue of this position that his views must prevail over those of the State legislature.
On the other hand, during the course of the debate, Shri. Shibban Lal Saxena, addressed the practical realities of assigning such a discretion to the Governor who is a nominee of the President, especially when the party in power in the province may not be the same as the party in power at the Centre. In such a scenario, it was his opinion that, “it will introduce a very wrong principle to give the Governor this power to go against the express wish of the Assembly and even of the council”[2].
Shri. T.T. Krishnamachari also emphasized that under the newly proposed draft Article 175, more specifically the first proviso, the Governor will not be exercising his discretion in the matter of referring a bill back to the House with a message. The Governor would exercise his power under the first proviso only upon the advice of his Council of Ministers.
According to him, the first proviso was to be exercised in situations wherein the House has already accepted and endorsed a provision, but the Ministry was of the opinion that certain modifications are required to be made in the said provision. It is only when such an occasion arises that the procedure envisaged under the first proviso would be resorted to. The Council of Ministers would use the Governor to hold up further proceedings of the bill and remit it to the Lower House with the message informing the legislature about the modifications sought to be made to the bill by the Ministry. He drew attention to the words of Dr. Ambedkar on this aspect and stated as follows:
“[…] If he construes that this Amendment is worse than the proviso in the draft Article and that it makes for further dilatoriness in the proceedings of the legislatures in the provinces or the States as the case may be, I would ask him to remember one particular point to which Dr. Ambedkar drew pointed attention, viz., that the Governor will not be exercising his discretion in the matter of referring a Bill back to the House with a message. That provision has gone out of the picture. The governor is no longer vested with any discretion. If it happens that as per Amendment No.17 the Governor sends a Bill back for further consideration, he does so expressly on the advice of his Council of Ministers.
The provision has merely been made to be used if an occasion arises when the formalities envisaged in Article 172 which has already been passed, do not perhaps go through, but there is some point of the Bill which has been accepted by the Upper House which the Ministry thereafter finds has to be modified. Then they will use this procedure; they will use the governor to hold up the further proceedings of the Bill and remit it back to the Lower House with his message.”[3]
The first proviso, according to him, was therefore a saving clause which vested power in the hands of the Ministry to remedy a hasty action that they might have undertaken with respect to the bill in question, or, it could also be seen as providing some scope to the Ministry to take certain additional actions that the Ministry feels should be taken in order to meet the popular opinion reflected outside the House in some form or another. Therefore, the operation of the first proviso does not abridge the power of the Legislature or the Ministry responsible to it, rather, it further curtails the Governor’s power from the position that was envisaged in the original first proviso, which is now sought to be supplanted. 7
In light of the debate which took place as regards the substitution of the first proviso to draft Article 175, the amendment was put to vote and the same was successfully adopted by the Constituent Assembly.
On 17th of October, 1949, T.T. Krishnamachari moved an amendment that a second proviso to Article 175 also be added, which later came to be adopted by the Constituent Assembly. Dr. B.R. Ambedkar elucidated that the second proviso that was proposed to be moved, was a part of the Instrument of Instructions issued to the Governor of the provinces under the GoI, 1935. Paragraph 17 of the Instrument of Instructions read as follows:
“Without prejudice to the generality of his powers as to reservation of Bills our Governor shall not assent in our name to, but shall reserve for the consideration of our Governor-General any Bill or any of the clauses herein specified, i.e. (b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court as to endanger the position that that Court is, by the Act, designed to fulfil.”
Such a clause was initially supposed to be included in the Fourth Schedule that separately contained instructions to the Governors of the States. However, since it was considered unnecessary to have such a separate Schedule, this particular aspect was sought to be brought in as second proviso to the draft Article 175. A need to incorporate the second proviso was felt because the High Courts were placed under the legislative competence of the Centre as well as the States. In so far as the organization and territorial jurisdiction of the High Court was concerned, the power remained with the Centre. However, with regard to the pecuniary jurisdiction and the jurisdiction in relation to any of the matters which are mentioned under List II, the power rests with different States.
Therefore, there could arise a scenario wherein the State legislature would enact a bill which would derogate from the powers of the High Court. For example, passing a bill that reduces the pecuniary jurisdiction of the High Court by raising the value of the suit that may be entertained by the High Court. This would be one method whereby the State legislature would diminish the authority of the High Court. Furthermore, a bill could also affect the subject-matter jurisdiction of a High Court. For example, in enacting any measure under any of the entries contained in List II, say, debt cancellation, it would be open for the provinces or States to say that the decree made by any such Court or Board shall be final and conclusive, and that the High Court should not have any jurisdiction in the matter at all. In light of such possibilities, it was felt that the second proviso to draft Article 175 must be added.
It was the opinion of Dr. B.R. Ambedkar that any such bill or Act as illustrated above would amount to a derogation from the authority that the Constitution confers or intends to confer upon the High Court. This is why it was felt necessary that before such a law becomes final, the President must be given an opportunity to examine whether such a law should be permitted to take effect or not. Such a shield was considered imperative keeping in mind the important constitutional position that the High Courts hold in adjudicating disputes.
Dr. B.R. Ambedkar had emphasized on the importance of the second proviso as follows: “I, therefore, submit that in view of the fact that the High Court is such an important institution intended by the Constitution to adjudicate between the Legislature and the Executive and between citizen and citizen such a power given to the President is a very necessary power to maintain an important institution which has been created by the Constitution. That is the purpose for which this amendment is being introduced.”[4]
Reference
State of Tamilnadu v. Governor of Tamilnadu (2025)
[1] 9, CONSTITUENT ASSEMB. DEB., (July 30, 1949) 41.
[2] 9, CONSTITUENT ASSEMB. DEB., (Aug. 1, 1949)
[3] 9, CONSTITUENT ASSEMB. DEB., (Aug. 1, 1949)
[4] 10, CONSTITUENT ASSEMB. DEB., (Oct. 17, 1949) 394.