THE STATE OF TAMIL NADU v. THE GOVERNOR OF TAMIL NADU & ANR

Citation: [2025] 4 S.C.R. 985, 2025 INSC 481

Court: Supreme Court of India

Bench: J.B. Pardiwala and R. Mahadevan, JJ.

Judgment text

SUPREME COURT OF INDIA The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. [2025] 4 S. C. R. 985 : 2025 INSC 481 The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. (Writ Petition (Civil) No. 1239 of 2023) 08 April 2025 [J. B. Pardiwala* and R. Mahadevan, JJ. ] Issue for Consideration a. What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution. b. Whether the Governor can reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance. c. Whether there is an express constitutionally prescribed time limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution. d.

Whether the Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers or whether he has discretion in discharge of his functions under the provision. e. Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 of the Constitution could be said to be subject to judicial review? If yes, what are the parameters for such judicial review. f. What is the manner in which the President under Article 201 of the Constitution is required to act once a Bill has been reserved for his consideration by the Governor under Article 200 of the Constitution.

* Author 986 Headnotes† Constitution of India - Article 200 - The Governor has three enumerated options when a bill is presented to him under Article 200 - Governor can either assent, withhold or reserve the bill for consideration of the President - Pocket veto is not available to the Governor while exercising powers under Article 200 - The Governor cannot keep the bill with him without deciding on the assent: Held: There are only three courses of action available to the Governor to choose from when a bill is presented to him for assent under Article 200 - The first proviso is not an independent fourth course of action but intrinsically attached to the option of withholding of assent - In other words, the first proviso is clarificatory and only elaborates the procedure to be followed in case the option of withholding of assent is invoked by the Governor - The use of the expression "shall" in the substantive part of Article 200 read with the expression "as soon as possible" used in the first proviso indicates that there is no pocket veto available to the Governor while he is exercising the powers under Article 200 - Inaction on part of the Governor to take a decision when a bill is presented to him under Article 200 is grossly violative of the constitutional scheme of expediency which permeates the provision - The Governor, in exercise of his powers under Article 200, also does not possess any absolute veto - He is mandated to take a decision from among the three options that are provided in the substantive part of the Article 200 - In case of withholding of assent, the Governor is bound to follow the procedure prescribed under the first proviso and assent to the bill if it is ultimately presented to him for assent after being repassed by the State legislature - The Governor may also reserve certain bills for the consideration of the President - However, in no case has the Governor been conferred with the power to veto a bill which is presented to him - He is envisaged as an intermediary stop in the journey of the bill towards becoming an Act - When a bill comes to the Governor, he may forthwith assent to it, or postpone the grant of assent by exercising the option of withholding of assent but only for so long till the bill comes back to him after reconsideration, or he may forward the bill to the President whereupon the procedure prescribed under Article 201 is to be followed - Thus, in none of these cases can the Governor permanently keep a bill with him without according assent to it, nor can he declare a simpliciter withholding of assent thereby killing the bill.

[Paras 194-198] The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. Constitution of India - Article 200 - The Governor cannot reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200: Held: There is no scope for the Governor to reserve a bill for the consideration of the President once it is presented to him for reconsideration after compliance with the procedure laid down in the first proviso - The first proviso to Article 200 is a complete code in itself as regards the procedure which is to be followed once the Governor withholds assent and the rest of the article has no applicability thereafter -In light of the language of Article 200, and also keeping in mind itsinterpretation by this Court in State of Punjab v.

Principal Secretary to the Governor of Punjab (2024) 1 SCC 384, there was no roomfor the Governor to declare a simpliciter withholding of assent withouttaking recourse to the first proviso as that virtually amounts to the exerciseof absolute veto by the Governor, a power which is conspicuously absentfrom our constitutional scheme. [Paras 204-211] Constitution of India - Article 200 - Timelines for the Governor to act under Article 200 - Courts can prescribe time limits for the discharge of certain functions, even in cases where no specific time-limit has been prescribed: Held: 1.

Unlike many countries across the globe wherein a provision for deemed assent upon the expiry of the specified time period has been made, there is no such provision in our Constitution - The only manner in which a temporal imperative has been weaved into the scheme of Article 200 is by the use of the expression "as soon as possible" in the first proviso - The said expression, which also appears in Article 111 of the Constitution, was the subject of some debate in the Constituent Assembly - Governor's inaction with respect to the bills for an unreasonable and prolonged period of time cannot be held to be permissible within our constitutional scheme. [Paras 217-225] 2. Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur Legislative Assembly & Ors.

[2020] 2 SCR 132 discussed in the context of the timeline for the Speaker to decide on the petitions seeking disqualifications under the Schedule X of the Constitution - The view adopted by the Court in Keisham Meghachandra (supra) was that the "reasonable period" for deciding such petitions by the 988 Speaker largely depends on the facts of each case yet, where there are no exceptional circumstances, the Speaker should arrive at a decision within an outer time-limit of three-months reiterated - Ram Chand and Ors. v. Union of India and Ors. (1994) 1 SCC 44 discussed wherein it was held that where for exercise of any power no time-limit has been prescribed, such power has to be exercised within a reasonable period of time - AG Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr.

(2023) 8 SCC 257 discussed wherein it was held that the inaction of the Governor would be subject to judicial review and in the absence of any cogent reasons for the delay, it would be open to the courts to issue directions for a time-bound decision on a case-to-case basis - Held, what is discernible from a reading of the decisions discussed above is that despite there being no prescribed time-limit for the Governor to take a decision under Article 200, the provision cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the law-making machinery in the State. [Paras 227, 229, 230, 231] 3.

Any time limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers - Those timelines no doubt demand the earnest adherence by the Governor, however, these being nothing more than tools upon which scrutiny by judicial review is to be premised, remain as prescriptions within the realm of judicial review alone and do not transgress into the legislative bounds or amount to alteration of the text or authority of Article 200 of the Constitution. [Para 239] 4.

Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the following timelines were prescribed: First, if a bill is either withheld or reserved for the President's consideration based on the aid and advice of the State Council of Ministers, the Governor is expected to act immediately, and in any case, within a maximum period of one month - Second, if assent is withheld contrary to the advice of the State Council of Ministers, the Governor must return the bill with a message within a maximum of three months - Third, if a bill is The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

reserved for the President's consideration contrary to such advice, the Governor must do so within a maximum period of three months - Finally, when a bill is presented again after reconsideration as per the first proviso, the Governor is required to grant assent without delay, and in any event, within one month - Failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts. [Paras 250-251] Constitution of India - Article 200 - Governor in the exercise of his powers under Article 200 of the Constitution can only act in accordance with the aid and advice tendered to him by the State Council of Ministers - B. K. Pavitra v. Union of India (2019) 6 SCC 129 held to be per incuriam: Held: 1.

What flows from a study of the Constituent Assembly debates concerning the appointment of the Governor and the scope of his discretionary powers is that the Governor plays a very crucial role in the political structure of the country - He is the bridge between the governments at the Central and State level, the proverbial buckle which ties the States with the Centre. [Para 289] 2. The second proviso to Article 200 is an instance under the Constitution where the Governor has been conferred with the power to act in his discretion and even against the advice of the Council of Ministers - However, the logical sequitur to this is that under Article 200, there is no scope for the Governor acting in his discretion other than the second proviso. [Para 295] 3. This Court in B. K. Pavitra v.

Union of India (2019) 6 SCC 129 took the view that the Constitution has entrusted the Governor with the discretion of reserving a bill, presented to him for assent, for the consideration of the President - It also held that the exercise of the power of reservation of bills for the consideration of the President could be done by the Governor contrary to the aid and advice tendered by the Council of Ministers - The Court observed that such an important responsibility having been conferred upon a constitutional functionary, its discharge was expected to be undertaken upon careful reflection and with statesmanship, and in a manner that does not thwart democratic federalism - On the nature of bills which may be reserved for the consideration of the President, the Court held that it was impossible to lay down with certainty all the situations wherein such a reference may be warranted - This view held per incuriam since the removal of the expression "in his discretion" from Section 75 of the Government of India Act, 1935 when it was being adapted as Article 200 990 of the Constitution, clearly indicates that any discretion which was available to the Governor under the Government of India Act, 1935 in respect of reservation of bills became unavailable with the commencement of the Constitution - Held, the views expressed by the members of the Constituent Assembly, which are recorded in the debates that took place on Article 175 of the Draft Constitution, also indicate the same - The same is also in alignment with the fundamental tenets of responsible government in a parliamentary democracy - The only exception to the general principle of the Governor adhering to the aid and advice tendered by the Council of Ministers can be traced to Article 163(1) and the second proviso to Article 200 - Held, B.

K Pavitra (supra) failed to take into consideration the larger Bench decisions in Samsher Singh v. State of Punjab (1974) 2 SCC 831 and M. P. Special Police Establishment v. State of Madhya Pradesh & Ors. (2004) 8 SCC 788. [Paras 303-306] 4. While construing the role of the Governor in the context of Article 200, it must be kept in mind that such a role has been envisaged not to supplant the opinion of the Council of Ministers, but to infuse it with his wisdom - However, once the bill is passed by the State legislature, and presented to the Governor for assent, he must act on the aid and advice of the Council of Ministers as a general rule and only in exceptional situations should he reserve it for the consideration of the President. [Paras 307-308] 5.

The option of withholding of assent, as believed by the framers, would be invoked in very rare circumstances where the Council of Ministers discover some error in the legislation or desire to incorporate certain changes to it so as to meet with the popular opinion outside the House - The framers did not expect that the Governor would, as a matter of routine, declare the withholding of assent to bills casually - The deletion of the expression "in his discretion" from the first proviso is also an unmistakable indication of the intent of the framers in vesting no discretion in the Governor as regards the withholding of assent and returning of the bill along with suggestions for the introduction of amendments. [Paras 310, 315, 316] 6.

The Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers - The only exceptions to this general rule are: (a) Where the bill is of a description as provided under the second proviso to Article 200, (b) Where the bill is of a nature covered by Articles 31A, 31C, The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision, and (c) Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril as described in M. P. Special Police (supra).

[Paras 318-319] Constitution of India - Article 200 and Article 201- Actions of the Governor and the President - Amenable to judicial review: Held: 1.

The Governor, by choosing to act in his discretion under Article 200, has the power to thwart the entire legislative machinery of the State by reserving a bill for the consideration of the President - He also has the power to significantly delay the grant of assent to a bill by withholding assent and returning the same to the State legislature under the first proviso to Article 200 of the Constitution - The discharge of functions by the President or the Governor as constitutional and formal heads is undoubtedly subject to judicial review by virtue of it being an exercise of their constitutional powers - Decision taken by the Governor under Article 200 would not be shielded from scrutiny of the courts by virtue of the immunity accorded under Article 361 of the Constitution - Held, the power of judicial review of the courts would be available in respect of exercise of all powers by any authority under the Constitution unless expressly excluded. [Paras 333, 335, 338] 2.

The grant of assent to a bill is an exercise which generally takes place on the aid and advice of the Council of Ministers, and assenting to the bill is the only practically possible course of action available to the constitutional heads in most of the common law jurisdictions - The grant of assent may not be justiciable because, there exists an unavailability of any material upon which the courts may be able to undertake a judicial scrutiny - However, the same would not be the case as regards the withholding of assent or reservation of the bill for the consideration of the President, which can only be exercised upon furnishing of detailed reasons for the same. [Para 358] 3.

Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before 992 the appropriate High Court or this Court - Such a challenge can be made on the following grounds: (i) Where the reservation is on the ground that the bill is of a description falling under the Second Proviso to Article 200 of the Constitution, it may be assailed on the ground that the bill or any provision thereof does not so derogate from the powers of the High Court so as to endanger the position which that court is designed by the Constitution to fill - The Governor while reserving a bill on this count shall be expected to provide clear reasons and also point to the specific provision(s) of the bill which, in his opinion, attract the Second Proviso - This question being purely of a legal nature would be completely justiciable and the competent court would be, after a proper adjudication, fully authorized to approve or disapprove of such reservation by the Governor - If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action - If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.

(ii) Where the reservation is on account of the bill attracting any provision of the Constitution wherein the assent of the President is a condition precedent for the proper enactment and enforceability of such a bill as a law or for the purpose of securing any immunity (such as under Article 31A) or overcoming any repugnancy that may exist qua a Central Legislation (under Article 254(2)), then the Governor is expected to make a specific and clear reference to the President properly indicating the reasons for such reservation and inviting his attention as described in Kaiser-I-Hind Pvt. Ltd. and Anr. v. National Textile Corporation (Maharashtra North) Ltd. and Ors.

reported in (2002) 8 SCC 182 - Such a reservation can be assailed by the State Government, if the reference made by the Governor either fails to indicate the reasons for such reservation as discussed above or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations - Then such a reservation would be liable to be set aside - This question being purely of a legal nature would be completely justiciable and the competent court would be after a proper adjudication fully authorized to approve or disapprove of such reservation by the Governor - If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be fit case for issuance of a writ in the nature of mandamus to the Governor for appropriate action - If however, the challenge The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action. (iii) Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M. P. Special Police (supra) and Nabam Rebia & Bamang Felix v. Dy.

Speaker, Arunachal Pradesh Legislative Assembly reported in (2016) 8 SCC 1 then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pinpointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law - The Governor while making such a reference should also indicate his subjective satisfaction as to why the aforesaid consequences that may ensue cannot be possibly curtailed or contained by taking recourse to the constitutional courts of the country - It shall be open to the State Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations - This being a question completely capable of being determined by the constitutional courts, would be fully justiciable.

(iv) Reservation of a bill on grounds other than the ones mentioned above, such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set-aside forthwith on that ground alone - This will also encompass reservation of a bill by the Governor after having already exercised the option of withholding of assent in terms of Article 200 except in such exceptional circumstance as mentioned in paragraph 204 of this judgment.

(v) Where the Governor exhibits inaction in making a decision when a bill is presented to him for assent under Article 200 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 250 of this judgment then it shall be open to the State Government to seek a writ of mandamus from a competent court against the Governor directing expeditious decision on the concerned bill as is the mandate of the Constitution, however, it is clarified that the Governor may successfully resist such a challenge on providing sufficient explanation for the delay caused. [Para 367] 994 4.

Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court - Such a challenge can broadly be made on the following grounds: (i) Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefore, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or mala fide manner - Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint.

(ii) Where a State bill has been reserved by the Governor, in his discretion, for the consideration of the President on the ground that the bill appears to be patently unconstitutional for placing the principles of representative democracy in peril, the withholding of assent by the President would, in ordinary circumstances, involve purely legal and constitutional questions and therefore be justiciable without any impediments imposed by the doctrine of political thicket - In such cases, it would be prudent for the President to obtain the advisory opinion of this Court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides.

(iii) Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court. [Para 367] 5. Summary of Court's findings on the judicial review of the exercise of power by the President under Article 201 in withholding assent to a bill: (a) where the bill which is under consideration is pertaining to a provision of the Constitution where primacy has been given to the Union government in taking a decision keeping in consideration the desirability of having certain uniform standards of national policy, then the limited grounds of judicial review would be based on arbitrariness, mala fides, etc.

and (b) where the bill which is under consideration pertains to a subject matter or domain within which State legislature has been accorded primacy, and the reservation of the bill is by the Governor contrary to the aid and The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. advice of the State Council of Ministers, then in exercise of judicial review the courts would be competent to look into the reasons for withholding of assent and whether they are legally tenable or not, besides the grounds of mala fides and arbitrariness, etc. [Para 368] Constitution of India - Article 200 - Timelines for the President under Article 201 to decide on the Bill reserved for his consideration by the Governor under Article 200: Held: 1. The Court deems it appropriate to adopt the timeline prescribed by the Ministry of Home Affairs in the Office Memorandum dated 04. 02.

2016 issued by the Ministry of Home, Government of India, and prescribe that the President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received - In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State - The States are also required to be collaborative and extend co-operation by furnishing answers to the queries which may be raised and consider the suggestions made by the Central government expeditiously. [Paras 385-391] 2.

After due consultation with the State government, the President may either declare assent to the bill or he may declare that he withholds assent thereto - It would not be appropriate for the President to declare withholding of assent without first seeking clarifications from the State government as is mentioned in the guidelines featuring in the Office Memorandums - If, in the course of discussions, the State government expresses willingness to make such changes to the bill as may be suggested by the Central government, then it would be open to the President to seek reconsideration of the bill by invoking the proviso, and upon the bill being re-considered and passed with such changes, the President may grant assent thereto. [Para 401] 3.

After the bill is sent with a message to State legislature by the President and they repass it, with or without amendments, the President would be empowered to take a final call on the giving or withholding of assent on the bill concerned - If he chooses to assent to the bill, it would become law - There is no gainsaying to the fact that the President under Article 201 is conferred with the power to withhold a bill during the second round, without activating any other procedure, effectively bringing the legislative process vis-à-vis that same bill to an end, in contrast to the scheme of Article 200 996 wherein the Governor must mandatorily accord his assent to a Bill which is presented to him for the second time. [Para 404] 4.

However, if he chooses to withhold his assent, the bill will not take birth as law - It must, however, be noted that even during the withholding of assent of a bill received on the second round, the President would be required to assign clear and sufficiently detailed reasons for arriving at such a decision - Even in the second round, he has no power whatsoever to exercise absolute veto, as the Constitution does not provide anywhere that withholding of assent can be done simpliciter. [Para 405] Constitution of India - Article 200 - Governor cannot reserve a reconsidered bill for consideration of the President - Article 142 exercised to grant deemed assent: Held: 1.

The Governor first withheld the ten bills under question and later despite the said Bills being repassed by the State legislature and presented before him again under the first proviso toArticle 200, still reserved them for the consideration of the President - The clear language in which the first proviso is couched, there would never arise, except in extraordinary situations, any occasion for the Governor to reserve a reconsidered bill for the consideration of the President - The said bills, in the absence of any message given by the Governor under the first proviso, were taken up for reconsideration by the State Assembly and passed in their original form, and presented to the Governor for his assent - Thus, it was not open to the Governor to reserve the bills for the consideration of the President and he ought to have granted assent - Considerable time has elapsed since these ten Bills were originally passed and presented to the Governor for assent - Two out of the ten Bills even date back to 2020 - It is important to keep in mind that the tenure of the State legislature is of five years and the representatives are accountable to their electorate as regards the enactment of legislations addressing the issues faced by the electorate - At the end of every five years, the elected representatives have to go back to their electorate and provide a report card, based upon which the people, in whom the ultimate sovereignty rests, cast their votes - Bills, if kept pending for long despite their passage by the State legislature, militate against this very fundamental, essential to the sustenance of a representative democracy based on direct elections.

[Paras 430-431] 2. The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

course of the present litigation, has been lacking in bona fides - There have been clear instances where the Governor has failed in showing due deference and respect to the judgments and directions of this Court - In such a situation, it is difficult to repose our trust and remand the matter to the Governor with a direction to dispose of the bills in accordance with the observations made by the Court in this judgment - Article 142 empowers the Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, it is deemed absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers - No meaningful purpose would be served by keeping the bills, some of which have already been pending for incredulously long periods, pending for more time - The ten Bills deemed to have assented on the date when they presented to the Governor after being reconsidered by the State legislature.

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List of Acts Constitution of India; Prevention of Corruption Act, 1988; Representation of the People Act, 1951; Government of India Act, 1935; Government of India Act, 1919; Aundh State Constitution Act, 1939; Government of Mysore Act, 1940; Government of India Act, 1858; United Kingdom: Judicial Committee Act, 1833; Canada: Royal Assent Act, 2002; Constitution Act, 1867; Strengthening Canadian Citizenship Act, 2014; United States of America: Constitution of the United States; New Zealand: Constitution Act, 1852; Australia: Constitution Act, 1889; Ireland: Constitution of the Ireland; Singapore: Constitution of Singapore; Sri Lanka: Constitution of Sri Lanka; Republic of Kiribati: Constitution of Kiribati; Fiji: Constitution of Fiji, 2013; Fiji Independence Order, 1970; Solomon Islands & Antigua and Barbuda: Constitution of the Soloman Islands; Constitution of Antigua and Barbuda; Pakistan: Constitution of the Islamic Republic of Pakistan; Germany: Basic Law for the Federal Republic of Germany; Constitution of Berlin; Italy: Constitution of the Italian Republic; France: Constitution of October 4, 1958.

List of Keywords Constitution of India; Governor; President; Deemed Assent; Withholding of assent; Pocket veto; Absolute veto; Federalism; Centre-State Relations; Sarkaria Commission; Puncchi Commission; Tamil Nadu; Bills; Article 200; Article 201; Article 142; Inherent power of the Supreme Court; Discretion of the Governor and the President. Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1239 of 2023 Under Article 32 of The Constitution of India 1000 Appearances for Parties Advs. for the Petitioner: Dr. Abhishek Manu Singhvi, Mukul Rohatgi, Rakesh Dwivedi, P. wilson, Sr. Advs. , Ms. Preetika Dwivedi, Mohd. Yasir, Ms. Jahnavi Taneja, Sabarish Subramanian, Poornachandiran R, Siddarth Seema, Vishnu Unnikrishnan, Apoorv Malhotra, Lokesh Krishna, Danish Saifi, Aravind A, Saran Raghunadhan S. Advs. for the Respondents: R Venkatramani, Attorney General for India, Vikramjit Banerjee, ASG, Ms. Madhavi Goradia Divan, Nl Rajah, Sr. Advs. , Prashant Rawat, Ms.

Rashi Mangal, Kartik Dey, Abhishek Goel, Kanu Agarwal, Padmesh Mishra, Arkaj Kumar, Chitvan Singhal, Raman Yadav, Abhishek Kumar Pandey, Kartikay Aggarwal, Ms. Ameya Vikrama Thanvi, Ms. Sonali Jain, Arvind Kumar Sharma, Manoj Ranjan Sinha, Mrigank Prabhakar, Vishal Agrawal, Siddharth Sahu, S. Santanam Swaminadhan, Ms. Abhilasha Shrawat, T. Bhaskar Gowtham, D. Bharat Kumar, Mrs. Aarthi Rajan. Judgment / Order of the Supreme Court Judgment J. B. Pardiwala, J. For the convenience of the exposition, this judgment is divided in the following parts: INDEX* A. FACTUAL MATRIX ..................................................................... 5 i. Factual background with respect to assent to bills. ............. 5 ii. Factual background with respect to accord of sanction for investigation into cases of corruption against public servants. ................................................................................. 17 iii.

Factual background with respect to the files pertaining to premature release of prisoners. ............................................ 19 iv. Factual background with respect to the appointments to the Tamil Nadu Public Service Commission (TNPSC). .............. 20 * Ed. Note: Pagination as per the original Judgment. The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. v. Factual background with respect to dismissal of ministers and allocation of ministries. ................................................... 22 B. SUBMISSIONS OF THE PARTIES ............................................. 25 i. Submissions on behalf of the Petitioner ............................... 25 ii. Submissions on behalf of the Respondents ......................... 54 C. ISSUES FOR CONSIDERATION ................................................ 61 D. ASSENT TO BILLS - HISTORICAL BACKGROUND ............... 65 i.

Concept of assent to bills as envisaged by certain historical documents drafted during the freedom struggle. .................. 79 ii. Debates of the Constituent Assembly on Article 200 of the Constitution ............................................................................ 91 E. ARTICLE 200 OF THE CONSTITUTION - DEVELOPMENTS POST THE COMMENCEMENT OF THE CONSTITUTION. ........ 99 i. First Administrative Reforms Commission, 1966................... 100 ii. Rajamannar Commission, 1971............................................. 102 iii. Sarkaria Commission............................................................. 105 iv. Punchhi Commission.............................................................. 121 F. INTERNATIONAL JURISPRUDENCE ON ASSENT TO BILLS............................................................................................ 128 G. ANALYSIS .................................................................................... 145 i.

What courses of action are available to the Governor in exercise of his powers under Article 200 of the Constitution? .......................................................................... 145 ii. Whether the Governor can reserve a Bill for the consideration of the President when it is presented to him for assent after being reconsidered in accordance with the first proviso to Article 200, more particularly, when he had not reserved it for the consideration of the President in the first instance? ........................................................................ 168 iii. Whether there is an express constitutionally prescribed time-limit within which the Governor is required to act in the exercise of his powers under Article 200 of the Constitution? ................................................................... 174 1002 iv.

Whether the Governor in the exercise of his powers under Article 200 can only act in accordance with the aid and advice tendered to him by the State Council of Ministers?............... 213 a. The Office of the Governor.............................................. 216 b. Constituent Assembly Debates on the mode of Selection of the Governor............................................................... 218 c. Constituent Assembly Debates on the Exercise of Discretion by the Governor............................................. 227 d. The decision of this Court in B. K. Pavitra (supra) is per incuriam........................................................................... 263 v. Whether the exercise of discretion by the Governor in discharge of his functions under Article 200 could be said to be subject to judicial review? If yes, what are the parameters for such judicial review?........................................................ 280 vi.

What is the manner in which the President under Article 201 of the Constitution is required to act once a Bill has been reserved for his consideration by the Governor under Article 200 of the Constitution?......................................................... 340 vii. On Exercise of Article 142. ................................................... 382 H. CONCLUSION ............................................................................. 387 1. While the framers of the Constitution set out with a vision that the Governor would be a "constitutional head, a sagacious counselor and adviser to the Ministry"1, someone who can "pour oil over troubled waters", what has unfolded before us in the instant litigation has been quite the opposite, as this Court has been called upon to calm the troubled waters stirred by the ensuing long-drawn battle of a high constitutional order between the petitioner and the respondent. 1 8, Constituent Assemb. Deb. , (May 30, 1949) 431.

The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. 2. The State of Tamil Nadu, being aggrieved by the action of the Governor on few issues of prime public importance, has invoked the jurisdiction of this Court under Article 32 of the Constitution seeking appropriate reliefs as prayed for in the writ petition. The petitioner is aggrieved by the action, or rather inaction, on part of the Governor of Tamil Nadu in discharge of the following functions: (i) Withholding of assent to and reserving for consideration of the President, by the Governor of 10 Bills enacted by the Legislature for the State of Tamil Nadu. (ii) Inaction on files submitted to the Governor for according sanction to prosecute public servants and investigate various crimes of corruption involving moral turpitude. (iii) Pendency of a number of files submitted to the Governor for premature release of prisoners.

(iv) Pendency of proposals submitted to the Governor for appointment of members to the Tamil Nadu Public Service Commission under Article 316 of the Constitution. A. FACTUAL MATRIX i. Factual background with respect to assent to bills. 3. The Legislature for the State of Tamil Nadu, between 13. 01. 2020 and 28. 04. 2023, enacted and forwarded 12 Bills to the Governor for grant of assent as per Article 200 of the Constitution. Even though the present Governor took charge of the office with effect from 18. 11. 2021, yet he did not take the necessary action on any of the said Bills forwarded to his office till October 2023. The petitioner, being aggrieved by the inaction on part of the Governor, had to ultimately file the present writ petition before this Court. The same was filed on 31. 10. 2023. 4. This Court issued notice to the respondents on 10. 11. 2023. The Governor, forthwith, took a decision on the 12 Bills on 13. 11. 2023 by withholding assent simpliciter to 10 bills i. e.

, he did not convey any message to the State Legislature for reconsideration of the said Bills as prescribed under the first proviso to Article 200, and by reserving two Bills for the consideration of the President. The 1004 10 bills for which assent was withheld were returned to the State Legislature by the Governor. 5. The State Legislature, on 18. 11. 2023, convened a special session and repassed the 10 bills which were returned by the Governor after withholding of assent. The bills were passed without any material change and were forwarded to the Governor's Secretariat on the same day for his assent in accordance with the first proviso to Article 200. This Court, in its order dated 20. 11. 2023, noted that since the repassed 10 bills were pending with the Governor, the hearing of the writ petition be adjourned to 01. 12. 2023 and issued directions that this Court shall be apprised of the progress in the matter. 6. On 28. 11.

2023, the Governor, without the aid and advice of the Council of Ministers of the State, in exercise of his discretion, reserved the said repassed Bills for the consideration of the President. The letter of the Governor to the Union Government referring the said Bills for the consideration of the President mentioned that the Bills were re- considered and passed again by the State Legislature. Interestingly, although the Governor noted that the Bills were intra-vires the competence of the State Legislature having been legislated under Entry 66 of List I, Entry 32 of List II and Entry 25 of List III, yet he reserved the said Bills for the consideration of the President in the second round on the ground that the Bills suffered from repugnancy on account of being contrary to Entry 66 of the Union List i. e. , List I. These grounds have been taken by the Governor to reserve the 10 Bills for consideration of the President.

For reference, we have extracted the relevant portion of the letter pertaining to the Tamil Nadu Fisheries University (Amendment) Bill, 2023which reads thus: "I am directed to state that the Tamil Nadu Legislative Assembly has passed the Tamil Nadu Fisheries University (Amendment) Bill, 2023 (LA Bill No. 15 of 2023) on 21. 4. 2023 and sent to the Hon'ble Governor for assent. Hon'ble Governor has returned the Bill with the following remarks - "I withhold assent". 2. The State Government have reconsidered the said Bill and again passed in the Tamil Nadu Legislative Assembly on 18. 11. 2023 and sent to Hon'ble Governor for assent. The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. 3. In this regard, I am directed to inform that a Background Note on Reserving the Bills for the consideration of Hon'ble President regarding University Bills which has been approved by the Hon'ble Governor is enclosed, since, co-ordination.

and determination of standards in institutions of higher education or research and scientific and technical institutions Is in Entry No. 66 of the Union List of the Seventh Schedule of the Constitution, the Bills suffer from repugnancy. Hence, the Hon'ble Governor has reserved the Bill viz. Tamil Nadu Fisheries University (Amendment) BIii, 2023 (LA Bill No. 15 of 2023) for the consideration of the Hon'ble President. 4. The Bill falls, mainly, within the scope of the following entries of the Union, State and Concurrent. Lists In the Seventh Schedule to the Constitution, namely- UNION LIST Entry 66·- Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

STATE LIST Entry 32 -- Incorporation, regulation and winding up of corporations, other than those specified in List-I and Universities; CONCURRENT LIST Entry 25 -- Education, including technical education, medical education and universities and is intra-vires the State Legislature. 5. I am, therefore, directed. to request to take appropriate action for the Bill to have consideration of the Hon'ble President. " 7. The Governor, on 04. 12. 2023, also sought to clarify that the 10 Bills to which he had withheld assent simpliciter were not returned to the Legislature for reconsideration as stipulated in the first proviso of Article 200. Despite that, the State Government had placed the Bills before the legislative assembly again. After the Bills were repassed by the legislative assembly, the State Government sent the same 1006 back to the Governor for assent.

The Governor clarified that since the Bills suffered from repugnancy, he was reserving the said Bills for the consideration of the President. These clarifications were sent for all the 10 Bills. For reference, we have extracted the relevant portion of the letter pertaining to the Tamil Nadu Fisheries University (Amendment) Bill, 2023which reads thus: "Kindly refer our letter dated 28. 11. 2023. 2. I am now directed to elaborate further on the circumstances under which the Bill was requested to be placed before the Hon'ble President for consideration. When the, The Tamil Nadu Fisheries University (Amendment) Bill, 2020 (LA Bill No. 2 of 2020) passed by the Tamil Nadu Legislative Assembly on 09. 01.

2020 was sent to the Hon'ble Governor for his essent, the Hon'ble Governor has exercised his substantive powers under Article 200 of the Constitution and took decision of withholding his assent to the Bill and the file was returned to the Law Department of the State Government, conveying the decision of the Governor "I Withhold assent". It is clarified that the Bills was not returned for re-consideration as stipulated in the proviso to Article 200 of the Constitution. 3. While withholding his assent, the Hon'ble Governor has relied on the position held by the five member bench (Constitution Bench) of the Hon'ble Supreme Court in Union of India and others Vs. Valluri Basavalah Chowdhary and others and Maharao Sahit Shri Bhim Singhi Vs. Union of India and others. (Civil Appeal No's 1896 of 1976, 265- 300 of 1977, 29-38 of 1977 and 5 of 1977 and W. P. No.

350 of 1977, decided on May 1, 1979) where it has been stated In Para 19: "The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State Legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except In the case of a 'Money Bill', withhold his assent therefrom, In which case the Bill The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. falls through unless the procedure indicated in the first proviso is followed, I. e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down In Article 201". 4.

However, State Government placed the Bill again in the Legislative Assembly and after getting Assembly's endorsement, sent them again to the Hon'ble Governor on 18. 11. 2023. 5. The Hon'ble Governor had not returned the Bills under the proviso to Article 200 for re-consideration, however, State Government has sent them back. Since the Bill suffers from repugnancy, Hon'ble Governor has reserved the same for the consideration of the Hon'ble President. " 8. In view of the reservation of the 10 Bills for the consideration of the President, the petitioner filed the I. A. No. 259020 of 2023 on 11. 12. 2023, seeking amendment of the prayers of the present writ petition and prayed for insertion of the following prayer: "Pass any writ/order or direction to declare that the action of the Governor of Tamil Nadu/ first Respondent of reserving the following Bills 1. Bill No 2/2020 namely "A Bill further to amend the Tamil Nadu Fisheries University Act, 2012", 2.

Bill No 12/2020 namely "A Bill further to amend the Tamil Nadu Veterinary and Animal Sciences University Act, 1989", 3. Bill No 24/2022 namely "The bill to amend the Universities laws. The Vice-Chancellors of all Universities (except University of Madras)", 4. Bill No 29/2022 namely "A Bill further to amend the Tamil Nadu Dr. Ambedkar Law University Act, 1996", 5. Bill No 39/2022 namely "A Bill further to amend the Tamil Nadu Dr. M. G. R. Medical University, Chennai, Act, 1987", 6. Bill No 40/2022 namely "A Bill further to amend the Tamil Nadu Agricultural University Act, 1971", 7. Bill No 48/2022 namely "A bill further to amend the Tamil Nadu Universities Laws", 8. Bill No 55/2022 namely "A Bill further to amend the Tamil University Act, 1982", 9. Bill No 15/2023 namely "A Bill further to amend the Tamil Fisheries University Act, 2012", 1008 10.

Bill No 18/2023 namely "A Bill further to amend the Tamil Nadu Veterinary and Animal Sciences University Act, 1989" for the consideration of the President qua the Bills passed and forwarded by the Tamil Nadu State Legislature to him as unconstitutional, illegal, arbitrary, unreasonable besides malafide exercise of power and/or to quash the being ultra- vires Articles 14, 19 and 21 read with Article 200 of the Constitution and direct the Respondent-1 to declare assent to the same. " 9. Thus, what was sought to be conveyed by the aforesaid I. A. was that the 10 Bills were reconsidered and passed again by the State Legislature and were thereafter forwarded to the Governor for his assent in terms of the first proviso to Article 200. However, the Governor reserved the said Bills for the consideration of the President.

It was alleged that such action on the part of the Governor was violative of Article 200 and was done with a mala fide intention only with a view to circumvent the jurisdiction of this Court. 10. Upon the suggestion made by this Court, the Governor, on 12. 12. 2023 wrote to the Chief Minister for the State of Tamil Nadu inviting him to a meeting in an attempt to resolve the deadlock. The Governor and the Chief Minister met on 30. 12. 2023, pursuant to which the Chief Minister submitted a representation summarising the following issues: a. The Bills could not have been reserved for the consideration of the President after the decision of this Court in State of Punjab v. Principal Secretary to the Governor of Punjab reported in (2024) 1 SCC 384, wherein it was held that once the Governor decides to exercise the power of withholding assent to a bill, the operation of the first proviso to Article 200 has to necessarily follow. b.

Article 200 does not confer any power upon the Governor to exercise the option of reserving a bill for Presidential consideration after a bill has been reconsidered and repassed by the State Legislature. Since, the 10 Bills in the present case were reconsidered and passed again by the State legislature, the only constitutionally permissible option for the Governor was to grant assent. c. The Governor also acted in contravention of the aid and advice of the Council of Ministers that "the Bill repassed by The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. the Legislative Assembly should be assented to by the Hon'ble Governor without withholding assent", which is ultra vires of the Constitution. 11.

In light of the above representation, the Chief Minister requested the Governor to: (i) Recall the 10 Bills reserved for the consideration of the President and grant assent expeditiously; (ii) In future, grant assent to Bills passed by the State Legislature within 30 days and avoid unnecessary reservation of the bills for the consideration of the President; (iii) Act in accordance with the aid and advice tendered by the Council of Ministers. 12. Out of the 10 Bills reserved for her consideration, the President withheld assent to seven Bills, granted assent to one Bill and is yet to consider the remaining two Bills. 13. The status of the Bills is summarized below: S. Bill Details Forwarded Action Re- Action Action No. to the by the enacted by by the by the Governor Governor the State Governor President by the Legislature State Legislature 1. Bill No. 2/2020 13. 01. 2020 Assent 18. 11. 2023 Reserved for Assent namely "A withheld on consideration withheld on Bill further to 13. 11. 2023.

of the 26. 02. 2024. amend the Tamil President on Nadu Fisheries 28. 11. 2023. University Act, 2012. 2. Bill No 12/2020 18. 10. 2020 Assent 18. 11. 2023 Reserved for Assent is namely "A Bill withheld on consideration awaited further to amend 13. 11. 2023. of the since the Tamil Nadu President on 28. 11. 2023. Veterinary and 28. 11. 2023. Animal Sciences University Act, 1989" 1010 3. Bill No 24/2022 28. 04. 2022 Assent 18. 11. 2023 Reserved for Assent namely "The withheld on consideration withheld on bill to amend 13. 11. 2023. of the 26. 02. 2024. the Universities President on laws. The Vice 28. 11. 2023. Chancellors of all Universities (except University of Madras) to be appointed by the Government instead of Governor. " 4. Bill No. 25/2022 28. 04. 2022 Reserved for - - Status not namely "A bill to consideration on record. further amend of the the Chennai President on University Act. " 13. 11. 2023. 5. Bill No. 26/2022 05. 05.

2022 Reserved for - - Status not namely "A Bill to consideration on record. provide for the of the Establishment President on and Incorporation 13. 11. 2023. of a University for Siddha Ayurveda, Unani, Yoga & Naturopathy and Homeopathy in the State. " 6. Bill No 29/2022 16. 05. 2022 Assent 18. 11. 2023 Reserved for Assent namely "A Bill withheld on consideration withheld on further to amend 13. 11. 2023. of the 15. 02. 2024. the Tamil Nadu President on Dr. Ambedkar 28. 11. 2023. Law University Act, 1996". 7. Bill No 39/2022 16. 05. 2022 Assent 18. 11. 2023 Reserved for Assent namely "A withheld on consideration withheld on Bill further to 13. 11. 2023. of the 16. 02. 2024. amend the President on Tamil Nadu Dr. 28. 11. 2023. M. G. R. Medical University, Chennai, Act, 1987". The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. 8. Bill No 40/2022 16. 05. 2022 Assent 18. 11. 2023 Reserved for Assent namely "A Bill withheld on consideration withheld on further to amend 13. 11. 2023.

of the 18. 02. 2024. the Tamil Nadu President on Agricultural 28. 11. 2023. University Act, 1971". 9. Bill No 48/2022 27. 10. 2022 Assent 18. 11. 2023 Reserved for Assent namely "A bill withheld on consideration granted on further to amend 13. 11. 2023. of the 18. 02. 2024. the Tamil Nadu President on Universities 28. 11. 2023. Laws. " 10. Bill No 55/2022 27. 10. 2022 Assent 18. 11. 2023 Reserved for Assent namely "A withheld on consideration withheld on Bill further to 13. 11. 2023. of the 18. 03. 2024. amend the Tamil President on University Act, 28. 11. 2023. 1982. " 11. Bill No 15/2023 28. 04. 2023 Assent 18. 11. 2023 Reserved for Assent namely "A withheld on consideration withheld on Bill further to 13. 11. 2023. of the 26. 02. 2024. amend the Tamil President on Nadu Fisheries 28. 11. 2023. University Act, 2012. " 12. Bill No 18/2023 28. 04. 2023 Assent 18. 11. 2023 Reserved for Assent is namely "A Bill withheld on consideration awaited further to amend 13. 11. 2023.

of the since the Tamil Nadu President on 28. 11. 2023. Veterinary and 28. 11. 2023. Animal Sciences University Act, 1989". ii. Factual background with respect to accord of sanction for investigation into cases of corruption against public servants. 14. Between 10. 04. 2022 and 15. 05. 2023, the Government of Tamil Nadu submitted to the Governor, four files relating to the prosecution of public servants involved in crimes of moral turpitude under the 1012 Prevention of Corruption Act, 1988, which at the time of filing of the writ petition remained pending with the Governor. 15. It is only upon the present writ petition being filed and issuance of notice that the Governor's office started acting upon the files. The Governor, on 01. 12. 2023, submitted the factual position regarding the bills, files and other cases pending with his office detailing the actions taken thereupon.

The details of the files requesting for sanction to investigate and prosecute and the Governor's actions thereupon are summarised below: S. Department Subject Request Status of the Files No. sent by the State to the Governor 1. Tamil Request to accord 11. 05. 2022 Sanction accorded on Development sanction by the 18. 11. 2023. and Hon'ble Governor/ Information Chancellor Department for initiating preliminary enquiry under Section 17A(1)(b) of the Prevention of Corruption Act, 1988 against Thiru G. Bhaskaran, Former Vice- Chancellor, Tanjavur University. 2. Public (S. C. ) Request to accord 12. 09. 2022 • A duly Department sanction by the authenticated Hon'ble Governor investigation report u/s 19(1) of the was sought from Prevention of the Government Corruption Act, on 07. 07. 2023. 1988 to prosecute • The Government Thiru K. C. sent a reply dated Veeramani, former 11. 07. 2023 stating Minister. that authenticated investigation report has been submitted. The State of Tamil Nadu v.

The Governor of Tamil Nadu & Anr. • The Governor sent back the file to the Government on 15. 11. 2023 with the observation that there was no duly authenticated investigation report in the file. • The Government re-submitted the file on 18. 11. 2023. 3. Public (S. C. ) Request to accord 12. 12. 2022 Sanction accorded Department sanction by the on 13. 11. 2023. Hon'ble Governor for initiating prosecution u/s 19 of the Prevention of Corruption Act, 1988 against Thiru B. V. Ramana @ B. Venkataramana, former Minister for Commercial Taxes and Dr. C. Vijayabaskar, former Minister for Health & Family Welfare. 4. Public (S. C. ) Request to 15. 05. 2023 Under consideration Department accord necessary since May 2023. sanction by the Hon'ble Governor for initiating prosecution u/s 19(1)(b) of PC ACT, 1988 against Thiru M. R. Vijayabhaskar, former Minister. 1014 iii. Factual background with respect to the files pertaining to premature release of prisoners. 16.

The petitioner forwarded 53 files pertaining to the premature release of prisoners to the Governor between June and August 2023 requesting approval thereof. 17. In response to the allegation of delay and pendency on the said files, the office of the Governor represented before this Court that since September 2021, i. e. , from the date the present Governor assumed office, 580 proposals regarding premature release of prisoners were received out of which 362 files were approved, 165 files were rejected and 53 were under consideration. 18. The Governor informed in the backdrop of the factual position prevailing on 01. 12. 2023 that the 53 files that remained pending were recent proposals sent by the petitioner only between June and August 2023. This Court has not been apprised of the status of these files after 01. 12. 2023 by any of the parties. iv. Factual background with respect to the appointments to the Tamil Nadu Public Service Commission (TNPSC). 19.

It is the case of the petitioner that it was represented before the Governor by way of various representations that as per Regulation 3 of the Tamil Nadu Public Service Commission Regulations, 1954, the Commission shall consist of a Chairman and 14 Members. However, no heed was paid to such representations. The functioning strength of TNPSC was of four members on the date of filing of the present petition. 20. In regard to the aforesaid, the petitioner forwarded representations to the Governor's office seeking approval of the proposed names for the position of members in TNPSC and carrying out their appointments. The petitioner also sent reminders to the Principal Secretary to the Governor for acting on the files sent to the Governor's office in this respect. 21. The Governor, on 27. 09. 2023, returned the said files with a note raising some queries regarding transparency in the selection process, tenure of the members to be appointed and credentials of the proposed candidates.

The Governor clarified that as the queries raised by his office were not addressed by the petitioner, the proposal The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. for appointment of the recommended candidates was being returned and the same was no longer pending before him. This happened on 26. 10. 2023. 22. The petitioner, on the other hand, has averred in its writ petition that such queries were against the established practices to the selection of constitutional posts and that the availability of the chairman and members in the TNPSC was essential to monitor and expedite various recruitment processes as well as promotions. Delays in appointments to the TNPSC resulted in non-availability of sufficient members, which detrimentally affected the functioning of the Executive. 23. The petitioner explained this position and also addressed the queries raised by the Governor in its clarification note dated 07. 10. 2023.

The files for approval of appointments were accordingly re-submitted on 10. 10. 2023, however, the same were returned by the Governor on 27. 10. 2023 without assigning any reasons. v. Factual background with respect to dismissal of ministers and allocation of ministries. 24. On 29. 06. 2023, the Governor suo moto and contrary to the aid and advice of the State Council of Ministers recommended the dismissal and divestment of portfolio of Senthil Balaji, a minister in the Tamil Nadu Cabinet on the ground that he was arrested by the Enforcement Directorate and was in judicial custody. However, the Governor addressed another letter to the Chief Minister on the very same day informing that he had kept the dismissal of Senthil Balaji in abeyance till further communication in light of the advice of the Union Minister of Home Affairs that it would be prudent to seek the opinion of the Attorney General on the matter. 25. In a similar case, Dr. K.

Ponmudy, a minister in the Government of Tamil Nadu was convicted and sentenced by the Madras High Court against which, he filed an appeal before this Court. This Court, vide order dated 11. 03. 2024, suspended the conviction of Dr. K. Ponmudy from its operation keeping in view Section 8(3) of the Representation of People's Act, 1951 and more particularly for the reason that he should not suffer disqualification from the office of Member of Legislative Assembly. 26. Accordingly, on 13. 03. 2024, the Speaker of the State Legislative Assembly declared that the disqualification ceased to operate with 1016 effect from 19. 12. 2023. The Election Commission also withdrew the notification of vacancy for his constituency. 27. The Chief Minister wrote to the Governor on 13. 03. 2024 to swear in Dr. K. Ponmudy as a Minister and allot to him the portfolio of Higher Education. However, the Governor vide the letter dated 17. 03.

2024, declined the request stating that the conviction order was suspended from its operation by way of 'interim relief' granted by this Court which meant that the conviction against Dr. Ponmudy, though existent, had been made non-operative and not set aside. The Governor also stated that the re-introduction of Dr. K. Ponmudy in the Cabinet would be against "constitutional morality". 28. Consequently, the petitioner was constrained to file I. A. No. 69967 of 2024 on 18. 03. 2024 to amend its prayer in the present writ petition for including the relief of staying the operation of the Governor's letter dated 17. 03. 2024 and directing him to administer the oath of office and secrecy to Dr. K. Ponmudy. The amendment sought to be made reads thus: "It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to: a) Grant permission to amend the prayer in the above W. P. No. 1239 of 2023 and add the following prayer: "f.

Call for the records of the 1st Respondent pertaining to Letter No. 007/RBTN/ 2024 dated 17. 03. 2024 and quash the same and direct the 1st Respondent to act in accordance with the letter of the Hon'ble Chief Minister of Tamil Nadu in D. O. Letter No. 952/CMO/2024 dated 13. 03. 2024 and consequently to appoint Thiru K. Ponmudi, Member of Tamil Nadu Legislative Assembly as a Minister of the Government of Tamil Nadu by administering oath of office and secrecy with the portfolios specified in the letter of the Hon'ble Chief Minister of Tamil Nadu in D. O. Letter No. 952/CMO/2024 dated 13. 03. 2024 and consequently to change the portfolios among Hon'ble Ministers" The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. b) Pass such other or further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case. " 29. This Court heard the application on 22. 03.

2024 and expressed its displeasure at the reluctance of the Governor to accept the order of this Court dated 11. 03. 2024 suspending the sentence of Dr. K. Ponmudy. This prompted the Governor to swear in Dr. K. Ponmudy as Minister in the State Cabinet and the I. A. was disposed of accordingly recording the same. 30. In the aforesaid factual matrix, the petitioner have prayed for a declaration that the reservation of the bills by the Governor for the consideration of the President after they were repassed by the State Legislature and presented before him as illegal. Further, as a sequitur, the petitioner have prayed that the act of withholding of assent by the President be declared as void ab-initio.

The petitioner have also prayed for a declaration that the simpliciter withholding of assent by the Governor without following the procedure prescribed in the first proviso to Article 200, be also declared to be illegal for being in contravention to the position of law as laid down in State of Punjab(supra). The petitioner have also prayed for a direction to the Governor to accord sanction for prosecution, take prompt decision on the pending files pertaining to grant of remission and to clear the proposal for appointment of members to the TNPSC. B. SUBMISSIONS OF THE PARTIES i. Submissions on behalf of the Petitioner 31. Mr. Rakesh Dwivedi, the learned Senior Counsel appearing for the petitioner, made elaborate submissions on the following aspects: a) Apparent Constitutional errors committed by the Governor. i) Pocket veto is not available under the Indian constitutional scheme.

The Governor could not have kept the Bills submitted to him between the years 2020 and 2023 in a cold storage without taking any decision on them. The fact that he entered no discussion with the State Government or the Chief Minister in relation to the Bills submitted to him further indicates that the Governor exercised pocket 1018 veto in relation to the said Bills, thereby bringing the constitutional machinery to a standstill. He submitted that the substantive part of Article 200 uses the expression "shall declare" which indicates that the function of the Governor is mandatory. The underlying objective of Article 200 is to make a Bill operative as an Act. Therefore, the scheme of Article 200 negates the possibility of engaging in inordinate delay or pocket veto. ii) The Governor failed to take note of the decision of this Court in State of Punjab (supra).

Although the said decision held that the first proviso to Article 200 attaches to the option of withholding assent, yet the Governor recorded a simpliciter finding of withholding assent without conveying any message to the State Legislature, as provided under the first proviso. He submitted that simpliciter withholding of assent by the Governor is also violative of Article 14 which mandates that the exercise of Constitutional powers should be based on reason and transparency. The State Legislature must be told why the assent has been withheld so as to enable it to reconsider the Bill. He further submitted that in the absence of any message, it would be open to the State Legislature to understand that the Governor wishes the entire Bill to be reconsidered. iii) On the facts of the present case, Mr.

Dwivedi submitted that having recorded that the Bills submitted to him were intra vires of the State Legislature, it was not open to the Governor to reserve the Bills for the consideration of the President upon being repassed and presented again before him. He submitted that once the reservation of the Bills for the consideration of the President is found to be erroneous in law, any subsequent withholding of assent by the President would also be legally vitiated. iv) He submitted that even the withholding of assent by the President under Article 201 was by way of a non-speaking order and thus does not comply with the first proviso to the Article. Similar to Article 200, the withholding of assent under Article 201 must necessarily result in a message under the first proviso. He summarised his arguments on this The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

aspect by submitting that the acts of simpliciter withholding, reserving for the consideration of the President, delay by Governor, as well as simpliciter withholding of assent by the President are all unconstitutional, and hence null and void. b) Justiciability and Judicial Review. i) Mr. Dwivedi submitted that no constitutional power vested in any authority, howsoever high, is beyond the powers of judicial review of the constitutional courts. The scope of judicial review may vary, but no power is beyond the purview of the courts. The Courts may exercise restraint, but that is not to say that if the power has been exercised unconstitutionally, manifestly arbitrarily, in breach of fundamental rights enshrined in Part III or any other provision of the Constitution, or in a mala fide manner, the courts would be prohibited from striking down the exercise of such power. ii) In furtherance of the aforesaid submission, he drew our attention to the decision in S. R. Bommai v.

Union of India reported in (1994) 3 SCC 1 wherein the justiciability of a proclamation under Article 356 was propounded. He also relied upon the decisions of this Court in Rameshwar Prasad v. Union of India reported in (2006) 2 SCC 1 and Kihoto Holohan v. Zachillhu reported in 1992 Supp (2) SCC 651 wherein the exercise of power of the Governor to invite the leader of the majority party to form government and the power of the Speaker under the 10th Schedule to the Constitution were respectively held to be justiciable by this Court. iii) In light of the aforesaid, he submitted that the position of law as on date, as explained by several Constitutional Bench decisions, is clear that no exercise of Constitutional power is outside the ambit of judicial review. No power is absolute and non-justiciable. Hence, the power exercised under Article 200 can also be examined by this court to discern any unconstitutionality.

c) Governor is required to act upon the aid and advice of the Council of Ministers. 1020 i) Mr. Dwivedi submitted that the various provisions of the Constitution stand in harmony and are interdependent. They are not isolated silos. They share the ultimate objective of harmonious Parliamentary governance, seek welfare of the people and implement Parliamentary form of democracy within a federal system. Therefore, interpretation of a Constitutional provision should accord with these fundamental principles and the basic structure of the Constitution. ii) He submitted that this Court has been consistent in its approach while interpreting the constitutional provisions, more particularly those that pertain to the Governor or the President, in light of the fundamental principles of Parliamentary democracy and federalism. He placed reliance on the decisions of this Court in Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831, S. R. Bommai (supra), Nabam Rebia & Bamang Felix v. Dy.

Speaker, Arunachal Pradesh Legislative Assembly reported in (2016) 8 SCC 1in support of the aforesaid submission. iii) He further submitted that the discretion of the Governor under the Indian Constitution is governed solely by Article 163(1) and the interpretation adopted by this Court has been such which does not make the Governor dominant over the Chief Minister, who is an elected representative of the people. iv) Article 200 embodies an aspect of legislative procedure so as to make a Bill operative as an Act. Seen thus, it is imperative that the Governor acts upon the aid and advice of the Council of Ministers when exercising his power under Article 200. v) Taking us through the historical background in which Article 200 came to be drafted, Mr. Dwivedi submitted that Section 75 was the provision corresponding to Article 200 in the Government of India Act, 1935.

However, in Section 75 the expressions "Governor in his discretion" and "Governor may, in his discretion" were deployed in the substantive part and the proviso respectively. Later on, when the draft of the Constitution was prepared by The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr. the constitutional advisor, the expression "Governor in his discretion" was dropped from the substantive part of Article 147 (predecessor of draft Article 175), but the expression "Governor may, in his discretion" was retained in the proviso. The same position continued in Article 175 of the Draft Constitution, 1948 (hereinafter, "the Draft Constitution") (predecessor of Article 200) presented before the Constituent Assembly. However, ultimately, the expression conferring discretion was dropped and Article 200 came to be adopted in its present form. He submitted that the reason for this was explained by Dr.

Ambedkar who said that there can be no room for the Governor to act on his discretion in a responsible form of government. Further, it was explained by Mr. T. T. Krishnamachari that the returning of the Bill to the Legislature will only be upon the advice of the Council of Ministers and not on the personal discretion of the Governor. vi) Mr. Dwivedi submitted that issues of repugnance of State legislation with a Central enactment are not of easy determination and the only method of discourse between the Governor and the State Legislature is provided in the first proviso to Article 200. Hence, simpliciter withholding of assent without taking recourse to the first proviso ought to be rejected by the Courts and compliance with the first proviso ought to be mandated in every case of withholding of assent. Furthermore, issues of repugnance should be left for the constitutional courts to decide.

vii) The interpretation of Article 200 must be done in line with the intent of the framers of the Constitution which is evident from the Constituent Assembly Debates. The only instance where this Court adopted an approach contrary to the one suggested by the Constituent Assembly pertained to the appointment of Judges to the High Court and this Court and that approach was adopted to preserve the independence of the judiciary, which is part of the basic structure. However, in the present case, there is no compelling need to diverge from the view adopted by the Constituent Ass