The Supreme Court on Friday set out to scrutinise the constitutional validity of action by Kerala and West Bengal governors to delay assent on bills for years together by resorting to Presidential reference and sought responses in this regard from the Centre and the secretaries of the two governors within three weeks.

Issuing notice on separate petitions filed by the Kerala and West Bengal governments, a bench headed by chief justice of India (CJI) Dhananjaya Y Chandrachud said, “We are issuing notice to the Union of India through ministry of home affairs (MHA) and secretary, governor.”

Former Attorney General KK Venugopal who appeared for Kerala along with advocate CK Sasi submitted that this is an “unfortunate state of affairs” and is usually witnessed in states where governors refuse to cooperate with the legislature in the state.

In the case of Kerala, seven bills have been stuck with Governor Arif Mohammad Khan with two of the bills pending for 23 months (nearly two years), another two for about 15 months and three for over 10 months. “It is important for this court to tell governors where they have to assent and in what circumstances can they refer a bill to the President of India,” the veteran lawyer said, adding that “there is a confusion in the minds of many governors as to what their powers are while assenting to bills.”

The bench, also comprising justices JB Pardiwala and Manoj Misra said, “We would like you to formulate a few questions on the power of the governor to reserve any bill for consideration of President,” while posting the matter in August.

Senior advocates Abhishek Manu Singhvi and Jaideep Gupta appearing for West Bengal along with advocate Astha Sharma informed the court that the position in the state is similar as eight bills are pending consideration with Governor CV Anand Bose. While six bills are pending since June 2022, the remaining two bills have been awaiting assent for past 8 months.

“This has become a practice as seen in the Tamil Nadu case as well where the bills were referred to President after sitting over it for months,” Singhvi said.

His reference was to a petition filed by the Tamil Nadu government in the top court alleging inaction by governor RN Ravi to clear 10 bills passed by the legislature. As governor initially withdrew assent, the state again passed the bills and presented it for his assent by convening a special session in November last year.

The matter came up before the court on November 20 when the court questioned the governor over the delay to decide on the bills. A week later, the court was informed that the re-enacted bills had been referred to the President.

The top court bench, headed by CJI, had taken serious exception to this action by governor and said, “You can’t withhold the bill and kill it virtually at that stage” adding further, “There is no option of referring it to President after he has withheld his assent and the bill is subsequently passed by the legislature again.”

The court proceedings come against the backdrop of frayed relationships between governors and states ruled by parties opposed to the Bharatiya Janata Party, which heads the NDA government. These states claim that the governors function like an agent of the Centre, forgetting their constitutional responsibility and also their very limited powers under the Constitution.

On Friday, West Bengal informed the court it does not know the status of bills except a communication received from governor’s office recently about some of the bills being reserved for consent by the President of India.

Noting a dangerous trend, Venugopal said, “Referring bills to the President has become an easy way out for governors if they do not want to cooperate with the legislature. It is a very sad state of affairs as the Constitution itself which permits the functioning of legislature is being rendered otiose.”

Although the two petitions listed governors as respondents, the court refrained from issuing individual notices to them, restricting the scope of consideration to the legal aspects emerging in the matter. The court allowed the West Bengal government to add Centre as a party and issued notice.

The state’s petition filed through advocate Astha Sharma referred to Article 200 which requires presentation of bills passed by state assemblies for assent by governor in the state. It said the governor’s conduct could subvert the foundation of the Constitution, including rule of law and democratic good governance.

Article 200 empowers governors to either assent to the bill, withhold assent or reserve the bill for consideration of the President. This provision also casts a duty on the governor to act “as soon as possible”. These words were interpreted by the top court in April 2023 when Telangana government filed a petition after assent on 10 crucial bills was held up for months together by the then Telangana governor Tamilsai Soundararajan.

The order of the top court said, “The expression ‘as soon as possible’ has significant constitutional intent and must be borne in mind by constitutional authorities.”

The Kerala government argued that none of the pending bills involves Centre-state relations as it pertained to universities, cooperative societies and Lokayukta.

The action of the Governor in keeping the bills pending for as long as two years has subverted the functioning of the legislature of the State and rendered its existence itself ineffective and otiose, the state argued, adding that the bills include public interest bills which are for the public good.

“Not dealing with the bills presented for assent for periods as long as 24 months, or 7 months to 16 months, the governor has rendered ineffective and otiose the functioning of a limb of the state under the Constitution, i.e. the legislative assembly,” Kerala stated in its plea.

Significantly, the state argued that in none of the reference orders to the President does the governor mention the fact about the bill being pending with him for as long as 11 to 24 months. “Such a reservation shows that the bills had been kept pending without any reason whatsoever rendering the very implementation of the bills and the purpose and functioning of the legislative assembly ineffective and otiose. If the timelines were mentioned, the President would have been put to notice on why the bills were being referred, not “as soon as possible”, but after two years.”

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