In B.K. Pavitra v. Union of India reported in (2019) 6 SCC 129 wherein it was observed that owing to the sovereign nature of the power of the Governor to reserve a bill for the consideration of the President under Article 200, it would not be possible for this Court to reflect upon the situations in which such a power of reference may be exercised by the Governor.
The Supreme Court overruling this judgment in the case of State of Tamilnadu v. Governor of Tamilnadu (2025), has held,
“We find it difficult to express our agreement with the view taken in B.K. Pavitra (supra) that the exercise of power to reserve a bill for the consideration of the President by the Governor is beyond the pale of judicial scrutiny, even in cases where it is exercised in his own discretion and against the aid and advice of the Council of Ministers. The Governor under Article 200 is ordinarily expected to act in accordance with the aid and advice of the Council of Ministers, and it is only in certain very exceptional situations that he should resort to the exercise of discretion. Further, the limits of such discretion are to be derived from Article 163(1). The exercise of such discretion by the Governor, if excluded from judicial scrutiny, would militate against the fundamental constitutional principle that exercise of all power must be within the confines of the Constitution.
Absolute exclusion of judicial scrutiny would also confer upon the Governor an absolute power to disregard the will of the people expressed through the State legislature and government. While it is true that there may be situations in which the exercise of discretion by the Governor under Article 200 would be permissible, this does not imply that this Court would be precluded from determining the legality and propriety of the exercise of such discretion in a given case.
In fact, it is owing to the impossibility of the task of exhaustively charting out such situations wherein discretion would be allowed to be exercised, that it becomes all the more crucial for the power of judicial review to exist with the courts. This would keep in line any bonafide action on the part of the Governor which is disguised under the garb of legitimate exercise of discretion.
The two-fold observations in B.K. Pavitra (supra) vesting the Governor with unfettered discretion to reserve bills for the consideration of the President under Article 200, and at the same time excluding such exercise of discretion from judicial scrutiny essentially has the effect of safeguarding the actions of the Governor in a lead casket which cannot be permeated even in cases of breach of the constitutional framework within which the Governor is expected to function.
The Constitution Bench in Kaiser-I-Hind had the occasion to consider in detail whether the assent of the President sought with regard to a State law would be limited only to the repugnancy of the laws to which the attention of the President was drawn to whilst seeking his assent or would such assent be qua all other laws enacted by the Parliament to which the State law in question may also be repugnant to. In other words, whether the assent granted by the President to a State legislation would be deemed to be an assent qua all earlier enactments made by the Parliament on the subject.
This Court whilst answering the aforesaid question in the negative, held that the “consideration” by the President and his “assent” under Article 254(2) is limited to the proposal made by the State government and, the State legislation would prevail only qua the laws for which repugnancy was pointed out and the “assent” of the President was sought for. The Court, inter alia, held that the words “reserved for consideration” indicate the requirement of an active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by the Parliament and the necessity of having such a law in the State, keeping in mind the peculiar facts, the attending circumstances and the backdrop in which such law was made by the State government.
Similarly, the word “consideration” indicates the requirement of careful thinking and due application of mind regarding the necessity of having a State law which is repugnant to the law(s) made by the Parliament. Lastly, the term “assent” implies an expressed agreement of mind to what is proposed by the State i.e., knowledge of the President as to the repugnancy between the State law and the earlier law(s) made by Parliament on the same subject-matter, as well as agreement to the reason and attending circumstances, regarding the necessity of having such State law.
As regards justiciability, it was held by the Court that the examination of the records to ascertain the extent to which assent was sought for, would not amount to deciding whether assent was rightly or wrongly given. Thus, it could not be said that the Court was determining the validity of the assent granted by the President. The relevant observations made by M.B., Shah J., speaking for the majority, are reproduced below:
“25. In our view, for finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the assent is rightly, wrongly or erroneously granted. The consideration by the Court is limited to the extent that whether the State has sought assent qua particular earlier law or laws made by Parliament prevailing in the State or it has sought general assent.
In such case, the Court is not required to decide the validity of the “assent” granted by the President. In the present case, the assent was given after considering the extent and nature of repugnancy between the Bombay Rent Act and the Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted by the President, the State law would prevail qua earlier other law enacted by Parliament for which no assent was sought for nor which was reserved for the consideration of the President.
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29. We further make it clear that granting of assent under Article 254(2) is not exercise of legislative power of the President such as contemplated under Article 123 but is part of the legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court.”