The Supreme Court on Friday agreed to examine if Governors, by indefinitely sitting on crucial Bills only to eventually refer them to the President who solely acts on the advice of the Centre, are opening the doors for Union interference in the legislative domain of States, thereby subverting federalism. The decision of the court to intervene came in a petition filed by the State of Kerala, which brought into focus the role of its Governor, who kept Bills pending for two years before reserving seven of them for the consideration of the President, who has no discretion and entirely depends on the aid and advice of the Centre. The President had subsequently withheld consent to four though none of the seven Bills had dealt with Centre-State relations. Kerala, represented by senior advocates K.K. Venugopal, Jaideep Gupta and advocate C.K. Sasi, said the Governor should have returned the Bills, which dealt with amendments to State cooperative societies, Lokayukta and university laws, to the State Legislative Assembly “as soon as possible” and given reasons for his objections. Instead, the Governor had sat on them. He denied the people of Kerala the “benefits of the welfare legislation” before referring the seven Bills to the President in November last year without mentioning the time lapse. Kerala said the Centre had withheld assent on four Bills without assigning any reasons. Thus, the State said, the machinations of the Governor saw the Centre take decisions on issues exclusively coming within the ambit of the State’s legislative domain. It argued that the Governor’s power to reserve a Bill for the consideration of the President is limited and confined to specific circumstances detailed in the proviso to Article 213 of the Constitution. Chief Justice D.Y. Chandrachud said the court would look into “when Governors can refer Bills to the President”. The next hearing of the case has been posted on August 20. The court issued notice to the Additional Secretary to the Kerala Governor and the Home Ministry.

“The actions of the Governor subvert the delicate balance envisaged by the Constitution between the three organs of State, by rendering the functioning of the elected executive, which has drafted and introduced the Bills, and then the State Legislature, which has passed the Bills, wholly ineffective and otiose. The actions of the Governor also subvert the federal structure of the Constitution, by reserving for the President (acting on the aid and advice of the Union Cabinet) Bills which are wholly within the domain of the State under the Constitution,” the State of Kerala argued. “This is a sad state of affairs. The Supreme Court should step in and tell the Governor when they can refuse Bills and when they can refer them to the President… Otherwise, the Constitution is being rendered otiose,” Mr. Venugopal addressed the Bench. The court similarly issued notice to the Home Ministry and the Secretary to the West Bengal Governor on a separate petition filed by the State government, which said the Governor’s omissions “defeats” democratic good governance. The Chief Justice asked Mr. Venugopal, Mr. Gupta and senior advocate A.M. Singhvi, appearing for the State of West Bengal along with advocate Astha Sharma, to meet and frame the legal issues to be decided by the court. “The Governor would act on the Bills before every Supreme Court listing… some of the Bills are cleared… It is as if the Supreme Court has to push them,” Mr. Singhvi, who had appeared for Tamil Nadu in a separate case, recalled. Mr. Venugopal said the reference to the President was like an escape route to avoid taking any decisions. “The President, which would effectively mean the Council of Ministers aiding and advising the President, has not given any reason whatsoever for withholding assent for four out of the seven Bills reserved by the Governor. This is a highly arbitrary action, violating Article 14 (right to equality) of the Constitution, as well as Articles 200 (procedure for granting assent to Bills) and 201 (procedure regarding Bills reserved for consideration of the President),” the Kerala petition said. Do the President and Governors have absolute immunity? Article 361 (1) provides that the President and Governors are not answerable to any court for acts done in exercise and performance of their powers and duties, but there are caveats, which the court is looking into. In an editorial, The Hindu had noted that the point that none should forget is that Governors are explicitly restricted in their functioning by the ‘aid and advice’ clause in the Constitution and ought not to misuse the discretionary space available to them.