“If we could roll back History A century, let’s say, and start from there, I’m sure that we Would find things as to-day: In all creation’s cosmic range No vestige of a change” ~ Robert William Service
We are tempted to preface this part of our judgment with the enlightening words of Robert William Service, keeping in mind the history of our country which has been fraught with instances of friction in the federal polity from its inception, with the Governor occupying the center stage in this ongoing saga.
As the democratic polity of the country unfolded post-independence, the predominance of a single party at the union and provincial level gave way to emergence of new political factions and regional parties. As a consequence, the position of the Governor, which had mostly been latent during the era of single-party dominance, started to assume importance. Allegations also came to be levelled by a number of State Governments that the Governor in a number of States was acting as an agent of the Central Government and the objectivity that was expected of the Governor was not being displayed, more particularly when it came to reservation of bills for the consideration of the President or recommendation for the imposition of emergency under Article 356.
In light of the aforesaid, certain commissions came to be constituted which submitted their reports after undertaking exhaustive analysis of the working of the constitutional machinery prescribed for Centre-State relations. One of the key foci of these reports was the working of Articles 200 and 201 of the Constitution respectively and the scope of exercise of discretion by the Governors, which we deem appropriate to discuss hereinafter.
i. First Administrative Reforms Commission, 1966.
The First Administrative Reforms Commission (the “ARC”) was established in January 1966 by a resolution of the Ministry of Home Affairs to examine the public administration of the country and make recommendations for reform and reorganization where necessary. An aspect of this exercise was the examination of Centre-State relations particularly with respect to the need for national integration, and for maintaining efficient standards of administration throughout the country.
While examining the various facets of Centre-State relations, the Commission found it apposite to discuss the role of the Governor in the political context which existed back then. Taking note of the skirmishes between the State governments and Governors, the Commission was of the view that the Governor’s office ceased to be merely ornamental and ceremonial. This changed role demanded a scrutiny of the discretionary powers of the Governor.
As the discretionary powers of the Governor affect some of the vital issues in the functioning of democratic governments in the States, the ARC underscored the importance of evolving guidelines to enable the exercise of such discretionary powers for the purpose of preserving and protecting democratic values. It was noted that such guidelines would serve the purpose of securing uniformity in action and eliminate all suspicions of partisanship and arbitrariness. 88. The ARC, therefore, recommended the following:
“Recommendation 9: We recommend:
Guidelines on the manner in which discretionary powers should be exercised by the Governors should be formulated by the Inter-State Council and on acceptance by the Union issued in the name of the President. They should be placed before both Houses of Parliament.”
However, no such guidelines have been formulated by the Inter-State Council till date and none of the Commissions on Centre-State relations constituted thereafter made any recommendations on the issuance of guidelines for exercise of discretion by the Governor.
ii. Rajamannar Commission, 1971
The Rajamannar Commission was set up by the Government of Tamil Nadu in 1969 under the chairmanship of Dr. P.V. Rajamannar to look into the question regarding the relationship that should subsist between the Centre and States in a federal set-up. The Commission noted that in the changed political circumstances, there can be no dispute regarding the fact that the Governors have a positive role to play in the stability and progress of States. This requires that the authority of the Governor should be clearly spelt out and the Governors should no longer consider themselves to be instruments of the Centre under compulsion to act on its directions and in its political interests.
One of the questions on which the Commission addressed itself was whether the Constitution provides for the exercise of any power by the Governor in his discretion that is, whether the Governor could exercise any of his functions without consulting the Ministry or contrary to the aid and advice tendered by the Council of Ministers.
To answer this question, the Commission adverted to the history of the making of the Constitution and concluded that the Constitution does not provide for the issue of any instructions to the Governor, nor does it vest any discretionary powers in express terms in the Governor, except in relation to certain specified matters. While referring to certain judicial pronouncements of this Court as well as Granville Austin’s seminal work on the Indian Constitution, the Commission opined that the discretion of the Governor must be limited to those matters in respect of which there are express provisions in the Constitution. The relevant portion of the report is reproduced below:
“6. The question as to the discretionary functions of the Governor was considered by the Supreme Court in Ram Jawaya v. State of Punjab (A.I.R. 1955 8.C. 549 at page 556). The Supreme Court held that the Governors were constitutional heads of the executive, and that real executive power was vested in the Council of Ministers. A similar view has been expressed by the Supreme Court in T. M. Kanniyan v. 1.T.O., Pondicherry (A.I.R. 1968 S.C. 687). Again, Granville Austin in his book The Indian Constitution— Cornerstone of a Nation has categorically stated that the Governor occupies the same position as the English Monarch and that the Governor has to act in accordance with the advice of his Cabinet in all matters. To place the matter beyond doubt, Article 163 (1) may be modified making it clear that the reference to discretion is only in relation to the matters in respect of which there are express provisions, e.g., Assam.”
The Commission observed that while exercising his functions, the Governor should not be under any pressure from an external authority. To explain the position of discretionary powers of the Governor, the Commission referred to the speech of the former Vice President of India, Shri G.S. Pathak, which reads thus: “He is the constitutional head of the State to which he is appointed, and, in that capacity, he is bound by the advice of the Council of Ministers of the State except in the sphere where he is required by the Constitution, expressly or impliedly, to exercise his discretion. In the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre.
There may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers. In the sphere in which he is required by the Constitution to exercise his discretion, it is obvious again that it is His discretion and not that of any other authority and therefore his discretion cannot be controlled or interfered with by the Centre.”
However, in the same vein, it was also noted that the Governor has to function in a dual capacity as,
(1) the appointee of the central government; and (2) the constitutional head of the State. This is because the Central Government retains the power to appoint and remove the Governor, therefore, the Governor cannot but look to the Central Government for guidance in the discharge of his duties.
The Commission was of the opinion that it is necessary to indicate at least a broad outline of the principles that should guide the Governor in the exercise of discretion, if any, vested in him. It was observed that the evolution of rules and guidelines in this respect is especially important in order to reconcile the actions of the Governor in his capacity as an agent of the Centre and the head of the State Executive.
Having discussed the discretion of the Governor in matters of constitutional decision-making at length, the Commission recommended that a specific provision should be inserted in the Constitution to enable the President to issue Instruments of Instructions to the Governors laying down guidelines or principles with reference to which the Governor should act including the occasions for the exercise of discretionary powers.
iii. Sarkaria Commission
In June 1983, the Central government headed by the former Prime Minister of India, Ms. Indira Gandhi, formally constituted a commission to examine and review the working of the arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and to recommend such changes or other measures as may be deemed appropriate. The said commission was formed under the chairmanship of a former judge of this Court, Justice R.S. Sarkaria and hence, came to be known as the Sarkaria Commission.
The Sarkaria Commission was enjoined with the task of reviewing the Centre-State relationship and consider the importance of unity and integrity of the country for promoting the welfare of the people. One of the facets of such review was to discuss the scope of the role of the Governor and its impact on the federal polity of India.
For a number of years after the independence of India, the political scene was dominated by a single party and there was little occasion for strife between the central and state governments. The role of the Governor, therefore, remained latent. However, post-1967, the emergence of new regional political parties led to a discord between the central government and those state governments that came to be led by such new regional parties. These developments engendered political instability in several states, as a result of which, the Governors were called upon to exercise their discretionary powers more frequently, particularly in recommending President’s rule and in reserving State bills for the consideration of the President.
The role of the Governor in giving assent to State bills, withholding assent therefrom or reserving such bills for the consideration of the President, thus, assumed importance. By virtue of Articles 200 and 201 of the Constitution respectively, the office of Governor became a major stakeholder for the maintenance of a cordial relationship between the central and state governments. The Sarkaria Commission was, therefore, tasked with providing recommendations regarding the interpretation of the said Articles and amendments therein to strengthen the federal polity of India.
To the limited extent of studying the issues arising from the exercise of powers under Articles 200 and 201 respectively, the Commission addressed itself on the following broad points:
(i) Scope of Governor’s discretion under Article 200;
(ii) Interplay of Articles 200 and 254 respectively of the Constitution;
(iii) Scope of Union Executive’s discretion under Article 201;
(iv) Impropriety of conditional assent by the President;
(v) Essentials for a “reference” of State bills to the President for his consideration; (vi) Delays in disposal of State bills;
(vii) Withholding of assent by the President.
Discussion on the Recommendations
A discussion of the recommendations of the Commission in this regard would be beneficial to our examination of Articles 200 and 201 respectively and the role of the Governor in the contemporary federal polity.
a. Scope of Governor’s Discretion Under Article 200.
The Commission observed that the rule is that the Governor shall perform his functions on the aid and advice of the Council of Ministers of the State and the exercise of discretionary powers by him is the exception. The Commission envisaged that discretionary powers of reservation of a bill under Article 200 should be exercised by the Governor only in rare cases where a bill is patently unconstitutional in his opinion. However, the Governor should not act contrary to the aid and advice of the Council of Ministers merely because he, in his personal capacity, does not favour the policy embodied in the bill. The relevant observations of the Commission are reproduced below:
“5.6.13 We are, therefore, of the view that:
(i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional case, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.
(ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.”
According to the Commission, the scheme of the Constitution indicates that the Governor’s opinion at best, is persuasive. The Governor cannot, in any circumstance, exercise dictatorial powers to override or veto the decisions or proposals of his Council of Ministers. The scope of discretionary powers should be construed in the context of a parliamentary democracy with a responsible government. In such a form of government, the role of a formal head of the State cannot be enlarged at the cost of the real executive, which enjoys the confidence of the people as it is responsible to the State legislature.
Discretion, in exercise of powers under Article 200, therefore, should be dictated by reason, actuated by good faith and tempered by caution. Discretionary functions should be performed in public interest and cannot be discharged at the dictation of any outside authority unless so authorized by and under the Constitution.
While addressing suggestions of some State governments that the discretionary powers of the Governor must be curtailed or removed as it presents a potential threat to the autonomy of the States, the Commission observed that the makers of the Constitution advisedly refrained from putting such discretionary powers in a straitjacket rigid definition. It noted that the Constitution is ever evolving and the ways in which its provisions and principles may be tampered with or circumvented, cannot be foreseen. Therefore, the office of the Governor should be afforded enough flexibility to react in any situation and his discretion to approach a matter cannot be pre-determined.
b. Interplay of Articles 200 And 254 respectively of the Constitution.
Article 246(2) endows the Parliament as well as the State legislatures with the competence to legislate on entries under List III i.e., the concurrent list. The provision under Article 254 is appurtenant to the concurrent exercise of legislative competence by the Parliament and State legislature insofar as there is any inconsistency or repugnancy between the laws of the respective legislatures.
Article 254(1) saves the power of the State legislatures to make laws with respect to matters in the concurrent list from being automatically superseded by the operation of the doctrine of repugnancy. Article 254(2) allows a law enacted by the State legislature and repugnant to the central law on the same subject-matter, to operate and prevail in that State provided that such State law receives the assent of the President.
The Commission highlighted that clause (2) of Article 254 is applicable only when the following two conditions are cumulatively met:
(a) There is a valid Union law on the same subject-matter occupying the same field in the Concurrent List to which the State legislation relates.
(b) The State legislation is repugnant to the Union law. That is to say, there is a direct conflict between the provisions of the two laws, or the Union law is intended to be an exhaustive code on the subject-matter in question. It is upon satisfaction of both these conditions that the Governor can reserve a bill for Presidential consideration under Article 254(2).
It was noted by the Commission that the assent by the President to the State bills had been withheld on certain occasions on the ground that the Union was contemplating a more comprehensive legislation on the same subject matter. However, withholding of assent on such a premise at the level of the Union may unnecessarily delay or defeat the measures sought to be taken by the State legislature. Since the Parliament retains the power to amend, vary or repeal such a State legislation, even after its enactment, by passing a subsequent law inconsistent therewith, the Commission recommended that Presidential assent should not ordinarily be withheld on the ground that the Union is contemplating a comprehensive law in future on the same subject-matter.
c. Scope of Union Executive’s Discretion under Article 201
As per the report of the Commission, a State bill, once reserved for the consideration of the President (upon the aid and advice of the Council of Ministers), is made subject to the procedure prescribed under Article 201 and the Union Executive is entitled to examine it from all angles such as, inter alia, conformity to legislative or executive policy of the Union, harmony with the scheme and provisions of the Constitution, vires of the bill, etc.
On the question of the Union Executive’s discretion to withhold assent to a State bill on the ground of non-conformity with its policy, the Commission sounded a note of caution saying that policy considerations should not ordinarily be treated as a valid ground for withholding Presidential assent. Article 201 confers supervisory powers on the Union Executive to enable it to secure a broad uniformity across central and state legislations in the interests of the social and economic unity of the country. However, the said provision cannot act as a measure for the Union Executive to bring to a grinding halt a State bill by withholding assent thereto if such a bill does not conform to its policy in general.
Further, the Union Executive is required to exercise utmost caution, circumspection and restraint in the exercise of supervisory powers under Article 201, especially in respect of the bills on subject matters that fall within the State List. In this regard, the Commission recommended that as a matter of convention, the President should not withhold assent only on consideration of policy differences on matters relating, in pith and substance, to the State List, except on the grounds of patent unconstitutionality.
The Commission did not make any specific prescription in respect of Article 143 of the Constitution, which enables the President and by extension, the Union Council of Ministers to seek the opinion of the Supreme Court in respect of bills which may be deemed to be unconstitutional and left the decision up to the President to make such a reference in appropriate cases. d. Impropriety of Conditional Assent by the President.
The Commission noted that the scheme of the Constitution providing for reservation of State legislations for the consideration and assent of the President, is intended to subserve the broad purpose of cooperative federalism in the realm of Union-State legislative relations. Therefore, the practice of according assent to a State bill by the President on the reciprocal assurance that the changes suggested by him (or the Union Executive) will be carried out by way of an ordinance, was not considered to be ideal especially when there exists a constitutional remedy under the proviso to Article 201 itself.
Since, conditional assent may become a tool for the Centre to dictate its policies to the States by attaching conditions to Presidential assent, the Commission, in cognizance of the impropriety of such a practice, recommended that in cases where the Union Government is of the opinion that some amendments to a State bill are essential before it becomes a law, such bill should be returned through the Governor to the State legislature for reconsideration in terms of the proviso to Article 201.
e. Essentials for a “Reference” of State Bills to the President for his Consideration
The Commission, cognizant of the misgivings and irritations in Union-State relations due to delays in the process of securing Presidential assent, recommended that the procedure of making a reference to the President by the State Government through the Governor and the consideration thereof by the Union Government must be streamlined. It was also endorsed that the Governments at both the Centre and State level may benefit from a prior consultation at the stage of drafting of the bill itself and prescribing time-limits for disposal, which ought to be made convention and practice.
As regards the suggestion of streamlining the procedures involved in reserving a State bill for consideration of the President, the Commission recommended that every reference from the State should be complete and clearly established. Such reference should set out precise material facts, points for consideration and the reason for making a reference to the President. Accordingly, the Commission recommended the following information to be necessarily provided for ensuring that the reference to the President is self-contained:
“5.15.01— To facilitate its speedy examination by the Union Executive, every reference of a State Bill from the State should be self-contained, setting out precisely the material facts, points for consideration and the ground on which reference has been made. It should contain information on the following points:
a. The relevant provisions of the Constitution attracted or applicable, with reasons. b. If the reference is made under Article 254(2), clear identification of the provisions of the Bill which are considered repugnant to, or inconsistent with, the specific provisions of a Union law or an existing law.
c. Urgency, if any, of passing the law within a certain time-limit. d. A clear statement that the Bill is being reserved as per the advice of the Council of Ministers, or in the exercise of his discretion by the Governor, with reasons for the same.
e. A lucid explanatory note on the intended policy behind the legislation instead of merely referring to the objects and reasons of the Bill. f. An indication whether the Bill was sent for prior scrutiny of the Union Government, and if so, deviations, if any, from the prior reference.”
f. Delays in Disposal of State Bills
The question whether there was a requirement of introducing time-limits in Article 201 was necessary or not was also looked into by the Commission. It was reiterated that streamlining the procedure of reserving a State bill for Presidential consideration and enabling a mechanism for high-level discussions between the Union and State at the stage of drafting such bill may effectively reduce procedural delays at the level of the Union Government. Nevertheless, it was recommended that the Union and State Governments should adopt definite timelines for processing State bills and disposing of their references to the President.
With regard to prescription of such timelines, the Commission proposed the following timelines to be treated as salutary conventions:
STAGE OF THE BILL PROPOSED TIMELINE
i. Reserving the bill for consideration of the President, by the Governor under Article 200 (on the aid and advice of the State Council of Ministers). Immediately upon presentation of the bill to the Governor.
ii. Reserving the bill for consideration of the President, by the Governor under Article 200 (in exercise of his discretion in exceptional circumstances). Within one month from the date on which the bill is presented to the Governor.
iii. Decision on the bill by the President under Article 201 (in case the proviso to Article 201 is not being exercised). Within four months from the date on which the reference is received by the Union Government.
iv. Returning the bill for consideration of the State legislature in case the proviso Within two months from the date on which to Article 201 is exercised by the President. the original reference is received by the Union Government.
v. Decision on the bill by the President, once received with clarifications from the State legislature under proviso to Article 201. Within four months of the date on which the reconsidered bill is received by the Union Government.
With a view to ensure that the timelines so suggested are not frustrated by lack of clarity and comprehensiveness in a reference, the Commission underscored the importance of a self-contained communication by the President to the State legislature for clarification or reconsideration of the bill. It was emphasized that clarifications to be sought by way of the proviso to Article 201 should not be piecemeal.
While the Commission noted the significance of clear timelines for the exercise of powers under Articles 200 and 201 respectively, it did not recommend any amendments to the said Articles for introducing concrete time periods within the constitutional scheme and left its recommendations in this regard at the stage of conventions only.
g. Withholding of Assent by the President 123. As regards the withholding of Presidential assent, the Commission laid great emphasis that the Union Government ought to communicate to the State government, the reasons therefor. It was noted that the Union Government should enter into the practice of discussing the issues present in the bill with the State Government and making an effort to present its point of view to the State Government with reasons. h. Recommendations given by the Commission
Before concluding the discussion on the aspect of reservation of bills by the Governor for consideration of the President, the Commission noted that needless reservation of bills should be avoided. The constitutional scheme does not envisage indiscriminate reservation of bills, especially when it is being done in his discretion, as the same would be subversive of the federal principle and the supremacy of the State legislature.
The Commission classified State bills to be reserved for the consideration of the President as follows: “5.1.05 State Bills reserved for President’s consideration under the Constitution, may be classified as follows: —
i. Bills which must be reserved for President’s consideration
In this category come Bills —
(i) which so derogate from the powers of the High Court, as to endanger the position which that Court is by this Constitution designed to fill (Second Proviso to Article 200);
(ii) which relate to imposition of taxes on water or electricity in certain cases, and attract the provisions of Clause (2) of Article 288; and
(iii) which fall within clause (4) (a) (ii) of Article 360, during a Financial Emergency.
ii. Bills which may be reserved for President’s consideration and assent for specific purposes
(i) To secure immunity from operation of Articles 14 and 19.
These are Bills for— (a)acquisition of estates, etc. [First Proviso to Article 31A(I)]; (b)giving effect to Directive Principles of State Policy (Proviso to Article 31C). (ii) A Bill relating to a subject enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President’s assent in terms of Article 254(2).
(iii) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the Proviso to Article 304(b) read with Article 255.
iii. Bills which may not specifically fall under any of the above categories, yet may be reserved by the Governor for President’s consideration under Article 200”.
The Commission recommended that bills should be reserved only if required for specific purposes falling in the first two classes as extracted hereinabove.
Reference
An Edited excerpt from State of Tamilnadu v. Governor of Tamilnadu (2025), authored by J.B. Pardiwala