ARTICLE 200 OF THE CONSTITUTION OF India
Why SC judgement is not given wide publicity in the media
Under Article 200, when a Bill has been passed by the Legislative Assembly
of a State, it 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.
2 Under Article 200,
when a Bill has been passed by the Legislative Assembly of a State,
it 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.
3 According to reports, the Governor of Tamil Nadu, R.N. Ravi,
has “withheld
assent” to as many as 10 Bills passed by the Tamil Nadu Legislative
Assembly. Of these, eight were passed after the DMK Government came to
power in 2021.
Most of these Bills relate to proposals to amend the statutes of
universities to enable the Chief Minister to take over the role of the
Chancellor, replacing the Governor. There are 20 State Universities in
Tamil Nadu, and in four of them, the posts of Vice-Chancellors, including
that of the University of Madras, are vacant.
The face-off between the Governor and the State government over the filling
of vacant Vice-Chancellors’ posts in the State Universities probably forced
Ravi to exercise his power under Article 200 of the Constitution to
withhold his assent to the Bills passed by the Assembly, removing him from
the office of the Chancellor.
The question is whether the Governor can withhold his assent to a Bill
passed by the legislature without stating reasons, as in this present case.
Although the Governor did not return the Bill for reconsideration by the
Assembly, the latter on November 18 readopted the Bills under Rule 143 of
the Assembly Rules. Will the Governor now be bound to give his assent to
the Bills passed by the Assembly afresh?
On November 10, the Tamil Nadu government informed the Supreme Court that
12 Bills passed by the Legislative Assembly between 2020 and 2023 were
still awaiting the Governor’s approval, even though they had been submitted
for assent between January 13, 2020, and April 28, 2023. Additionally, four
files seeking approval to prosecute various crimes involving alleged moral
turpitude by public servants, which were submitted to the governor between
April 10, 2022, and May 15, 2023, were also pending.
Furthermore, 54 files requesting the premature release of prisoners,
submitted to the governor between August 14, 2023, and June 28, 2023, were
also awaiting approval. Moreover, due to the delay in approving proposals
for the appointment of Tamil Nadu Public Service Commission (TNPSC)
members, the Commission is currently functioning with only four members
instead of its full complement of 14.
Understanding Article 200
The Supreme Court is scheduled to hear the case again on November 20, with
the Attorney General for India, R. Venkataramani, in attendance. During the
hearing on November 10, the three-judge bench, led by Chief Justice of
India D.Y. Chandrachud, expressed its extreme dissatisfaction with the
Governor’s excessive delay in making a decision on the Bills passed by the
Legislative Assembly.
Under Article 200, when a Bill has been passed by the Legislative Assembly
of a State, it 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.
The first proviso to Article 200 enables the Governor to return a non-Money
Bill for reconsideration by the Assembly but states that the Governor is
bound to give his assent if the Assembly passes the Bill after such
reconsideration, with or without amendment.
The second proviso to Article 200 stipulates that the Governor shall not
grant assent to but shall reserve for the President’s consideration any
Bill that, in the Governor’s opinion, would, upon becoming law, diminish
the powers of the High Court to such an extent that it jeopardises the role
that the Constitution has assigned to that Court.
Without fulfilling the ingredients of these two provisos to Article 200, it
is doubtful if the Governor has any power of discretion to withhold assent
to a Bill passed by the legislature.
In Nabam Rebia and Bamang Felix v Deputy Speaker and others (2016), the
respondents referred to Article 163(2) of the Constitution, which states as
follows: “If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution required to
act in his discretion, the decision of the Governor in his discretion shall
be final, and the validity of anything done by the Governor shall not be
called in question on the ground that he ought or ought not to have acted
in his discretion”.
The bench answered the respondents as follows: “We are of the view that
finality expressed in Article 163(2) would apply to functions exercised by
the Governor in his discretion, as are permissible within the
framework of Article
163(1), and additionally, in situations where the clear intent underlying a
constitutional provision so requires it, i.e., where the exercise of such
power on the aid and advice would run contrary to the constitutional scheme
or would be contradictory in terms.
Article 200 of the Constitution was discussed in the Constituent Assembly,
before it was inserted in the Constitution, as Draft Article 175. The
proviso to Draft Article 175 stated that the Governor “may in his
discretion return the Bill together with a message requesting that the
House will reconsider the Bill”. The words “that the Governor may in his
discretion” were omitted when it became Article 200.
On the powers of the Governor
The powers of the Governor, including his discretionary powers, came
up for consideration
in Samsher Singh v State of Punjab (1974). Chief Justice A.N. Ray (speaking
for himself and four other Judges) held that the expression “in his
discretion” is used in those Articles of the Constitution that confer
special responsibilities on the Governor. The bench observed that if the
Governor was held entitled to exercise his *powers personally*, then that
interpretation would extend to several Articles of the Constitution,
including Article 200. “Parliamentary Democracy will then become a dope,
and national elections a numerical exercise in expensive futility,” the
bench observed.
During the hearing on November 10, a three-judge bench, led by Chief
Justice of India D.Y. Chandrachud, expressed its dissatisfaction with the
Governor’s excessive delay in making a decision on the Bills passed by the
Legislative Assembly.
All the seven Judges constituting the Bench were explicit and unequivocal
in their view that the principle of Cabinet responsibility is firmly
entrenched in our constitutional democracy and that our Constitution does
not accept any “parallel administration” or “dyarchy”.
Justice Sarkaria Commission (1988) gave five examples of areas where
the Governor
exercises his discretion independently of the Council of Ministers—all of
them by necessary implication. Reserving a Bill for the consideration of
the President (Article 200)— and not withholding assent —is one of them.
The Justice M.M. Punchhi Commission report (2010) on Centre-State relations
recommended that the area for the exercise of discretion of the Governor is
limited and even in this limited area, his choice of action should not be
nor appearing to be arbitrary or fanciful.
In Paragraph 114 of his concurring judgement in Nabam Rebia, Justice Madan
B. Lokur, held: “....the Governor cannot withhold assent to a Bill
indefinitely but must return it to the Assembly with a message, and this
could include his recommendation for amendments to the Bill”. He held that
the discretion given to the Governor in respect of his relations with the
Legislative Assembly is not only limited and circumscribed by the
Constitution but also by the Rules framed by the Legislative Assembly under
Article 208 of the Constitution.
The Legislative Aspect of the Judiciary: Judicial Activism and Judicial
Restraint Dr. Justice B.S. Chauhan Judge Supreme Court of India “There is
no liberty where judicial power is not separated from both legislative and
executive power. If judicial and legislative powers are not separated,
power over the life and liberty of citizens would be arbitrary,
because the *judge
would also be a legislator*. If it were not separated from executive power,
the judge would have the strength of *an oppressor*.” Thus argued
Montesquieu, the great political philosopher of the Enlightenment, in
favour of a system of governance in which different branches of government
exercise different powers to avoid concentration of powers and preserve
human liberty—the legislature should make law, the executive should execute
it, and the judiciary should settle disputes in accordance with the law. This
is the doctrine of separation of powers.
Doctrine of Separation of Powers and the Constitution of India The
classic statement of Montesquieu has become one of the cardinal principles
of governance in a modern constitutional democracy. While formulating the
above proposition, however, Montesquieu was not clear about the inherent
salient features that are the prerequisites for a cohesive and hassle-free
governance structure. These inherent salient features include :(i) A
written constitution which establishes its supremacy over any institution
created under it; (ii) Distribution of powers among the three organs of the
State; and (iii) the co-equal status, along with the coordinating powers
of each of the three organs. With regard to the judiciary, the noted
constitutional scholar Prof. D.D. Basu explains the essence of the doctrine
of separation of powers thus:“So far as the courts are concerned, the
application of the doctrine may involve two propositions: namely (a) that
none of the three organs of Government, Legislative Executive and Judicial,
can exercise any power which properly belongs to either of the other two;
(b) that the legislature cannot delegate its powers.” The Constitution of
India envisages a system of governance based on the separation of powers,
even though the Constitution does not expressly mention it.
For instance, Article 53(1) expressly vests the executive power of
the union in the President, and Article 50 clearly states that the State
should take necessary steps to separate judiciary from the executive. In
the Indian Context, ‘Separation of Power’ is one of the basic features of
the Indian Constitution, which has been rightly declared by the Supreme
Court of India in the matter of State of Bihar v. Bal Mukund Shah, (2000) 4
SCC 640. In Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab,
AIR 1955 SC 549, the Supreme Court, therefore, observed: :: 1 ::“The Indian
Constitution has not indeed recognized the doctrine of separation of powers
in its absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions
that essentially belong to another.”
According to Article 122: "Courts not to inquire into proceedings
of Parliament (1) The validity of any proceedings in Parliament shall not
be called in question on the ground of any alleged irregularity of
procedure (2) No officer or member of Parliament in whom powers are vested
by or under this Constitution for regulating procedure or the conduct of
business, or for maintaining order, in Parliament shall be subject to the
jurisdiction of any court in respect of the exercise by him of those
powers."
And, according to Article 212: "Courts not to inquire into proceedings
of the Legislature (1) The validity of any proceedings in the Legislature
of a State shall not be called in question on the ground of any alleged
irregularity of procedure (2) No officer or member of the Legislature of a
State in whom powers are vested by or under this Constitution for
regulating procedure or the conduct of business, or for maintaining order,
in the Legislature shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers." Equally, by Articles 122 &
212 of the Constitution, the courts have been prohibited from inquiring
into the proceedings of the Parliament and Legislature respective
Subsequently, in L. C. Golak Nath & Ors. v. State of Punjab &
Anr., AIR 1967 SC 1643, the Supreme Court reinforced its view with respect
to separation of powers thus: “The constitution creates Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without overstepping their
limits. They should function within the spheres allotted to them”
Now however, rigorous analysis of judicial activity has revealed and
recognised the circumscribed role of a judge as a legislator. The finite
generalities of law do not—and cannot— anticipate the infinite vagaries of
life. It is unlikely that a law, as formulated and enacted by the
legislature, would be able to reach every corner and crevice of the
situation that it is meant to apply to, :: 3 ::or the mischief that it is
meant to rectify and remedy. Therefore, even if the many rules promulgated
by the legislature dictate the outcome in a vast majority of cases, there
are inevitably some cases—with such unique concoctions of facts—to which, by
no stretch of the imagination can any pre-existing generality of law apply
incontrovertibly. In such a case, in interpreting a statute or a
constitutional provision, according to the words used by the legislature, a
judge performs a legislative role. He breathes life into such words, and
creates and shapes a body of law that is suitable for the case at hand. He
decides the specific colour and content of the words used by the
legislature..” The judge indeed gives meaning to what the legislature has
said, and—as it has been said— the process of interpretation constitutes
the most creative and thrilling function of a judge. *However, the
legislative role of the judiciary is highly circumscribed*. Judicial
lawmaking rests solely on the creative interpretation of foundational
texts, such as the Constitution and statutes. The judiciary does not have
any power to create laws independent of the foundational texts. "I
recognize without hesitation that judges do and must legislate, but they
can do so only interstitially; they are confined from molar to molecular
motions."
Quoting the observations in respect of policy making by Lord
Justice Lawton in Laker Airways (1977 (2) WLR 234 at 267), Chief Justice
A.S. Anand, as he then was, re-iterated the principle that the ‘role of
the judge is that of a referee. I can blow my judicial whistle when the
ball goes out of play; but when the game restarts, I must neither take part
in it nor tell the players how to play’. Justice Anand added: “The
judicial whistle needs to be blown for a purpose and with caution. It needs
to be remembered that the court cannot run the government. It has the duty
of implementing the constitutional safeguards that protect individual
rights but they cannot push back the limits of the Constitution to
accommodate the challenged violation.” Wise words indeed for judges to
remember. The problem, however, is the absence of an effective remedy when
judges cross the Lakshman Rekha, consciously or otherwise, leaving no
remedy to restore constitutional balance.
In Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, it observed
that judges should not unjustifiably try to perform executive or
legislative functions; in the name of judicial activism, the judiciary
cannot attempt to take over the functions of another organ of the State.
Nonetheless, the Court noted that judicial activism is a useful, if not
necessary, adjunct to a healthy democracy. Such activism, however, should
be resorted to only in exceptional circumstances where the interests of the
nation or of the poorer or weaker sections of the society would be in peril
in the absence of judicial action. Ordinarily, the task of legislation or
administrative decisions is for the legislature and the executive and not
for the judiciary. Crucially for our constitutional democracy, the Supreme
Court has always held the Constitution to be the supreme and immutable
source of law. According, even in its activist posture, in Dayaram (supra),
the Court has noted: “This Court has neither re-written the Constitution
nor resorted to ‘judicial legislation’. The judicial power was exercised to
interpret the Constitution as a ‘living document’ and to enforce
fundamental rights in an area where the will of the elected legislatures
have not expressed themselves.” A million dollar question: Has the Supreme
Court in its activism failed to respect the Constitution? It has frequently
been remarked that the Indian Supreme Court through its activism has
assumed the role of the Legislature; the criticism is that it has not only
performed the circumscribed role of a law giver, but that it has actually
assumed the role of a plenary law-making body, like the Legislature. Put
differently, it has been stated that the SC has clearly overstepped the
limits of the judiciary and has ventured into the domains of the other
branches of the government. Many proponents of judicial restraint have
opined, that some remedies designed by the Supreme Court such as the
'continuous mandamus' demonstrate the failure of the judiciary to observe
judicial restraint, and that is undesirable because it is a failure to
accord respect to other co-equal branches of the government. According to
this view, the judiciary acts as if it were first among equals
The first principled opposition to the power of Judicial Review
arises from the core of democracy that envisages the rule of majority. In
contrast, the judiciary is an unelected institution, wherein judges are
appointed. It is often argued that, in the exercise of the power of
Judicial Review, when the judiciary declares a legislation to be
unconstitutional, it overturns the popular will that is reflected in the
enactment of a popularly elected legislature. The critics of Judicial
Review envisage the role of the judiciary as purely one of resolving
disputes between parties, and they believe that the resolution should be
strictly according to the law laid down by the elected legislature. They
champion the notion of ‘parliamentary sovereignty’,. To operate
effectively, a constitution should enjoy normative supremacy, should not be
as easily amenable as a normal statute, and should give judges the power to
review the constitutionality of legislation. Without a formal constitution,
there is no legal limitation on legislative supremacy, and the supremacy of
human rights can exist only by the grace of the majority’s self-restraint.
A constitution, however, imposes legal limitations on the legislature and
guarantees that human rights are protected not only by the self-restraint
of the majority, but also by constitutional control over the majority.” In
the Indian context, it is an established fact that the Constitution of
India, reflecting the WILL of WE THE PEOPLE, is supreme and sovereign, and
since the Constitution entrusts its constitutional courts with the power of
Judicial Review, the concern regarding accountability is unfounded. In the
words of Sir Alladi Krishnaswamy Iyer:“The doctrine of independence is not
to be raised to the level of a dogma so as to enable the judiciary to
function as a kind of super-legislature or super-executive.” Similarly,
Shri T.T. Krishnamachari said :“It might be that by giving the judiciary an
enormous amount of power – a Judiciary which may not be controlled by any
legislature in any manner except by the means of ultimate removal – we may
perhaps be creating a Frankenstein monster which could nullify the
intentions of the framers of the Constitution. I have in mind the
difference that was experienced in another country.” This reminds me of
Franklin D Roosevelt’s ‘Court-Packing Plan’. With that plan, the US
president threatened “to appoint justices who will act as judges and not as
legislators”.
Now the articles we see in the media, whether vision or Print,
show that, still the superiority of power of Parliament, Executives and
Judiciary is not yet over. This is inclusive of page 8 article of HINDU, by
P D T Achary, secretary general hen of Lok sabha dated 19 8 23. Because the
executions revealed the powers of state, ruler’s vs opposition sympathy and
other materials, where we see lopsided judgements -changed within a short
span. When the legislatures do appear only as weak, the so-called, creative
judgement do arise; and when the apple cart is tilted in favour of the
Legislature, the Judiciary, tones down the creative parts. The main article
is clear about the powers of the Governors; it is the proviso the tail is
turned in as main for the creativity; whereas in many similar judgements,
under the laws of other departments functionality, the creative
Judgement(s) was(were) ruled as, proviso is only a second fiddle. And the
sea-saw battle and words of wisdom, is a variable factor. While the
intentions of the constitutional authorities were rendered in the best
effort of the constitutional framers. So, opposing the adharma vests with
or only rest in the hands of such. The power of the judiciary is also
determined. Whether Punjab or Kerala or TN, Governor is not a post of
rubber stamp. Time will prove the effectiveness of the constitution. K
RAJARAM IRS 19 12 23
--
You received this message because you are subscribed to the Google Groups
"Thatha_Patty" group.
To unsubscribe from this group and stop receiving emails from it, send an email
to [email protected].
To view this discussion on the web visit
https://groups.google.com/d/msgid/thatha_patty/CAL5XZoohvYKcLMMPgF7VZpM_Ec%3DQeYigqt3mKh4eHomJfBYiSw%40mail.gmail.com.
