The concept of assent by the Sovereign found mention in Section 75 of the GoI[1] Act, 1935 and Article 200 as it stands today is predominantly modelled according to the version which existed therein. However, before we proceed to discuss Section 75 of the GoI Act, 1935 and how it eventually evolved into Article 200 of the Constitution, we deem it appropriate to briefly shed light on how other aspirational constitutional documents, drafted during the course of the freedom struggle, imagined the practice of assent to bills and made certain modifications to the practice that prevailed in the United Kingdom.
The Commonwealth of India Bill, 1925
The Commonwealth of India Bill, 1925 that was drafted by the National Convention had a lasting impact on the eventual framing of our Constitution as regards the idea of royal assent. Article 39 of the said Bill provided that a bill passed by the Parliament would be presented to the Viceroy for obtaining the King’s assent. Similarly, for the provinces, Article 83 provided that the bills passed by the provincial legislature would be presented to the Governor for obtaining the King’s assent.
However, what is relevant to note is that the provisions were not elaborate as regards the procedure and scope of powers of the Sovereign while taking a decision on the aspect of assent.
Nehru Report of 1928
However, the Nehru Report of 1928 shortly followed the Commonwealth of India Bill, 1925 and was drafted in response to the dissatisfaction with the Simon Commission. The Report sought to negative the challenge posed by the British that a constitutional document, which is agreeable to all, could not be drawn by Indians, and contained elaborate provisions providing the mechanism for the purpose of assent to bills.
As regards the bills passed by the Parliament, it was stipulated in the Nehru Report that a bill would not become an Act until assent was granted by the Governor-General. The Governor-General was provided with three options – to signify assent, to withhold assent or to reserve the bill for consideration by the British Crown. Notably, there was no obligation on the Governor-General to signify assent after a bill was repassed with or without the amendments suggested by him. The relevant provision is reproduced hereinbelow:
“21. (i) So soon as any bill, shall have been passed, or deemed to have been passed by both Houses, it shall be presented to the Governor-General for the signification by him, in the King’s name, of the King’s assent, and the Governor-General may signify such assent or withhold the same or he may reserve the bill for the signification of the King’s pleasure.
(ii) A bill passed by both Houses of Parliament shall not become an Act until the Governor-General signifies his assent thereto in the King’s name or in the case of a bill reserved for the signification of the King’s pleasure until he signifies by speech or message to each House of Parliament, or by proclamation that it has received the assent of the King in Council.
Provided that the Governor-General may, where a bill has been passed by both Houses of Parliament and presented to him for the signification by him of the King’s assent, or has been reserved by him for the signification of the King’s pleasure, return the bill for reconsideration by Parliament with a recommendation that Parliament shall consider amendments thereto.
(iii) Any bill so returned shall be further considered by Parliament together with the amendments, recommended by the Governor-General, and if re-affirmed with or without amendments, may be again presented to the Governor-General for the signification in the King’s name of the King’s assent.”
As regards the provincial legislature, a bill passed by the provincial legislature had to be assented to by the Governor before it would become an Act. The Governor had two options – to declare assent or to withhold assent. Notably, the Governor did not have the option to reserve the bill for the consideration of the Governor-General. However, every bill after receiving the assent of the Governor had to be mandatorily referred to and assented by the Governor-General failing which the Act would have no validity. Even after receiving the assent of the Governor-General, the Act could be disallowed by the King and would thereupon become void.
The relevant provisions are reproduced hereinbelow:
“37. When a bill has been passed by a local Legislative Council, the Governor may declare that he assents to or withholds his assent from the bill.
38. If the Governor withholds his assent from any such bill, the bill shall not become an Act.
39. If the Governor assents to any such bill, he shall forthwith send an authentic copy of the Act to the Governor-General, and the Act shall not have validity until the Governor-General has assented thereto and that assent has been signified by the Governor-General to, and published by the Governor.
40. Where the Governor-General withholds his assent from any such Act, he shall signify to the Governor in writing his reason for so withholding his assent.
41. When an Act has been assented to by the Governor-General it shall be lawful for His Majesty in Council to signify his disallowance of the Act.
42. Where the disallowance of an Act has been so signified, the Governor shall forthwith notify the disallowance, and thereupon the Act, as from the date of the notification shall become void accordingly.”
In 1944, the All India Hindu Mahasabha adopted the Constitution of Hindustan Free State Act as an aspirational constitutional document. As regards the procedure of assent by Governor in provinces, the document contained the following provision:
“93. (1) So soon as any bill shall have been passed by both Chambers it shall be presented to the Governor for the signification of his assent, and he may signify such assent or withhold the same.
(2) A bill passed by both Chambers shall become an Act if the Governor signifies his assent thereto, and that assent has been published by him.
(3) In case where the Governor withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration with his own recommendations thereto.
(4) A bill so returned shall be further considered by both Chambers together with the recommendations made by the Governor, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been assented to by the Governor, but it shall not become an Act unless and until the President of the Hindusthan Free State has assented thereto and that assent has been signified by the President to and published by the Governor.”
A perusal of the above indicates that the Governor had the option of either assenting to or withholding a bill presented before him. However, in the latter case, the Governor was under an obligation to return the bill for reconsideration with his own recommendations, whereupon the provincial legislature was required to reconsider the bill in light of the recommendations made. Upon being passed again, with or without amendments, the bill would be deemed to have been assented to by the Governor.
However, it would become an Act only upon being assented to by the President, who would signify his assent to the Governor. Thus, the President was vested with the power to veto any bill which had not been assented to by the Governor and was passed again after reconsideration with or without the amendments recommended by the Governor.
This was in contrast to the position with respect to the Federal Legislature, wherein no veto power was conferred on the President. The relevant provision read as follows:
“30. (1) So soon as any bill shall have been passed by both Chambers, it shall be presented to the President for the signification of his assent, and he may signify such assent or withhold the same.
(2) A bill passed by both chambers shall not become an Act unless and until the President signifies his assent thereto.
(3) In case where the President withholds his assent to a bill passed by both Chambers, he shall return the bill for reconsideration to the originating Chamber with his own amendments thereto.
(4) A bill so returned shall be further considered by both Chambers together with the amendments recommended by the President, and if it is reaffirmed with or without amendments by both Chambers, it shall be deemed to have been assented to by the President and shall become an Act.”
Constitution of Free India: A Draft by M.N. Roy
One more document that we would like to refer to is the “Constitution of Free India: A Draft” authored by M.N. Roy in 1944. The document proposed a radically different version of assent to bills as distinguished from the scheme prevailing under the GoI Act, 1935 or other contemporaneous aspirational constitutional documents. The document vested no authority in the Governor to withhold assent to a bill passed by the provincial legislature or to veto the same.
However, the document vested power in the Supreme People’s Legislature, which was a joint sitting of both the chambers of the Federal Legislature, to veto any provincial legislation. However, this veto power was subject to judicial review and the provincial government was given the right to challenge the veto before the Supreme Federal Court. The relevant provisions are reproduced hereinbelow:
“Article 62. The Supreme People’s Council will have the right to veto any provincial legislation in the Federal Union on the ground that it is repugnant to the Federal Constitution or contradicts any particular Federal law. Either on the advice of the Council of Ministers or on his own initiative, the Governor General will recommend the vetoing of a Provincial legislation. The Provincial Government concerned will have the right to appeal to the Supreme Federal Court against the veto.
xxx xxx xxx
Article 91. The Governor shall sign and promulgate all laws made by the Provincial People’s Council.”
What is interesting to note is that the imagination of a provision as regards assent to bills, when the country was on the brink of becoming independent from the British rule, was significantly different from the previous versions envisaged in times when the freedom struggle was focused more on obtaining greater degree of self-rule while being under the sovereignty of the British Crown, as can be seen in the versions used in the Nehru Report and the Constitution of India Bill, 1925. The two documents which were drafted in 1944, and are referred to above, indicate that the Governor was vested with lesser powers and discretion, and there was a clear inclination towards a more unitary arrangement insofar as assent to bills was concerned.
The ideas of judicial review of exercise of veto by the President against a state legislation, mandatory return of the bills for reconsideration upon withholding of assent, and deemed assent upon reconsideration were being experimented with among others in the immediate lead up to the framing of our Constitution.
Besides the aspirational constitutional documents referred to above, it is also pertinent to discuss how assent was envisaged by one of the first indigenous constitutional documents that was implemented in practice as well.
Aundh State Constitution Act, 1939
Section 15 of the Aundh State Constitution Act, 1939 that was purportedly enacted to grant self-rule to the people of the Aundh princely state, laid down the procedure for assent to bills. The relevant provision read as follows:
“15. (a) All bills shall be passed by a majority of members of the Legislative Assembly present and voting and shall become law only on receiving the assent of Shrimant Rajasaheb.
(b) If Shrimant Rajasahab, in his discretion, withholds his assent to a bill which has been duly passed by the Legislative Assembly, he shall return it to the Legislative Assembly together with a message requesting that the Legislative Assembly will reconsider the Bill in the light of his recommendations, and when a bill is so returned, the Legislative Assembly shall consider it accordingly.
(c) If the Legislative Assembly accepts the recommendations, the bill shall forthwith become law; but if it rejects the recommendations of Shrimant Rajasaheb, he shall have the right to postpone his assent to the bill till the next session of the Legislative Assembly. He can so postpone the said bill for not more than three times. If the said bill, in its original form, is passed by a simple majority of the members present on all the three times, it is sent for reconsideration, it shall forthwith become law.”
What is interesting to note in the aforesaid provision is that although it vested Shrimant Rajasaheb, the King, with the discretion to either assent to a bill passed by the legislature or to withhold assent thereto, yet it made it mandatory for him to return the bill to the legislature with a message requesting them to reconsider the bill in light of his recommendations if he opted for withholding assent. Further, after a maximum of three rounds of reconsideration, the bill would become law upon being passed with a majority, regardless of receiving assent of the King or not.
Government of Mysore Act, 1940
On the contrary, the Government of Mysore Act, 1940, gave the King unfettered powers to veto any bill passed by the Legislative Council. The relevant provision reads as follows:
“28. (1) When a Bill has been passed by the Legislative Council, it shall be submitted through the Dewan to His Highness the Maharaja for assent with a statement of the opinion expressed by the Representative Assembly on the principles of the Bill or its general provisions.
(2) No such Bill shall become law until it has received the assent of His Highness the Maharaja.”
Government of India Act, 1935
Under the GoI Act, 1935, the Governor was required to act on the aid and advice of the Council of Ministers responsible to the Provincial legislature. However, the Governor continued to have some special responsibilities and he also possessed discretionary powers to act in situations such as prevention of grave menace to the peace or tranquility of the province, safeguarding the legitimate interests of minorities and so on. The Governor could also act in his discretion in specified matters.
He functioned under the general superintendence and control of the Governor-General, whenever he acted in his individual judgement or discretion. 68. It is interesting to note that while the framing of the Constitution was being undertaken by the Constituent Assembly, the GoI Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 was made applicable for the administration of the country. By way of paragraph 3 of the said order, the expressions “in his discretion”, “acting in his discretion” and “exercising his individual judgement” were removed/deleted from wherever they occurred in the GoI Act, 1935. Paragraph 3 read thus:
“3.(1) As from the appointed day, the Government of India Act, 1935, including the provisions of that Act which have not come into force before the appointed day, and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions, additions, adaptations and modifications directed in the following provisions of this paragraph and in the Schedule to this Order.
(2) The following expressions shall be omitted wherever they occur, namely, “in his discretion”, “acting in his discretion” and “exercising his individual judgment”. […]”
Article 147 of the Draft Constitution, prepared by the constitutional adviser, Shri B.N. Rau, dealt with assent to bills passed by the provincial legislature and read as follows:
“147. A Bill which has been passed by the Provincial Legislature or, in the case of a Province having a legislative Council, has been passed by both Houses of the Provincial Legislature shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that where there is only one House of the Legislature of a Province and the Bill has been passed by that House the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will reconsider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House shall reconsider it accordingly and if the Bill is passed again by the House with or without amendments and presented to the Governor for assent, the Governor shall not withhold assent therefrom.”
Article 147 as reproduced aforesaid made significant departure from Section 75 of the GoI Act, 1935 as follows:
a. The expression “in his discretion” was removed from the substantive part of the provision. However, the said expression continued to be present in the proviso to the substantive part.
b. While Section 75 of the GoI Act, 1935 provided for the sending back of a bill for reconsideration by the legislature in the provinces having both unicameral and bicameral legislatures, Article 147 only provided for such reconsideration in the provinces with a unicameral legislature.
c. Under Section 75, there was no mandate upon the Governor to mandatorily assent to a bill when the bill was presented to him for reconsideration. However, in Article 147, the expression “shall not withhold assent therefrom” was added in the first proviso.
Four months after the Draft Constitution was submitted by Shri B.N. Rau, the Drafting Committee under the chairmanship of Dr. B.R. Ambedkar submitted the Draft Constitution to the President of the Constituent Assembly in February, 1948. Article 147 of the Draft Constitution submitted by the constitutional advisor was adapted with certain structural modifications as Article 175 of the Draft Constitution, however, in essence the provision remained the same.
Reference
This is an edited excerpt from the Judgement State of Tamilnadu v. Governor of Tamilnadu, authored by Justice JB Pardiwala
[1] Government of India Act