How long can a governor keep a Bill pending, without deciding on it? There is a constitutional silence in Article 200, as it does not prescribe a time limit. There is only a recommendation to fix a reasonable time limit, made by the National Commission to review the working of the Constitution placed before the Centre in 2002. Yet, the phrase “as soon as possible” occurring in the Article for returning the Bill for reconsideration by the assembly stands against any notion of delay in the matter. It implies that the governor’s assent should also happen “as soon as possible” and even if he returns the Bill for the assembly’s reconsideration, he must act promptly. Once there is a reiteration of the content of the Bill by the assembly, the governor is bound to give assent. The third option for the governor under the Article is to reserve the matter for consideration of the President if such a consideration is constitutionally warranted.

On Article 200, an earlier decision by the Constitution Bench of the Supreme Court in Purushothaman Nambudiri v. State of Kerala (1961) might be interesting. In that case, the petitioner challenged the validity of the Kerala Agrarian Relations Act, 1960. The SC, among other things, said that Article 200 does not prescribe a time limit for the President or governor to act upon the Bills and therefore, they cannot be compelled to do so. According to the Court, the assembly that reconsiders the Bill need not be the same House which considered it in the first instance.

The SC also said that the omission to fix a time limit would “suggest that the Constitution makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of lapse on the dissolution of the Assembly”.

This view in Purushothaman Nambudiri cannot be, however, mechanically applied to the instant cases. No judgment can be read and understood in isolation. Evidently, the context in which the Supreme Court rendered its decision in 1961 is different from that in the present pleas. In Purushothaman Nambudiri, it was to give effect to the legislative will that the SC relied on the absence of a time limit. In the instant case, it is the other way around. Governments want assent within a time limit for materialising the legislative will.

This is what makes the present cases significant. Article 163 explicitly drew the limits of gubernatorial power by saying that the governor can act only as per “the aid and advice” of the Council of Ministers. The Supreme Court explained this principle in the famous case of Shamsher Singh (1974).

In Nebam Rebia v. Deputy Speaker (2016), the SC again reiterated the limits of Raj Bhavan as against the state legislature. A combined reading of these judgments and the constitutional provisions would echo what BR Ambedkar said in the Constituent Assembly on June 2, 1949. According to him, “the governor under the Constitution has no functions which he can discharge by himself” and there are only “certain duties to perform”.

The moot question is whether the politics of Raj Bhavan is in tune with the constitutional scheme. The SC will have to dwell on such significant questions, however, by directing an expeditious decision on the Bills. The inertness of the Raj Bhavans affect governance and the very idea of electoral democracy. One may recall that the Sarkaria Commission report (1988) suggested the involvement of the chief minister and the state government in the process of appointment of the governor.

It is difficult to believe that the governors who are at the centre of the controversies are unaware of the constitutional scheme. And when political compulsions outweigh the ethos of the Constitution, judicial interference becomes inevitable. The misuse of the governor’s office by the Centre is not anything new.

Many governors might find it difficult to resist pressure from the Centre, the de facto appointing authority. Yet there were exceptions. When Surjit Singh Barnala, while acting as the governor in Tamil Nadu (1990-91) refused to recommend presidential rule in the state, he was given a punitive transfer to Bihar. Refusing to be a political tool in the hands of the Centre, Barnala resigned in protest. Such a gesture of integrity is absent today.

Right during the Constituent Assembly debates, many members apprehended politically motivated and partisan approaches from the governors. Even the provincial governments of the 1930s and early 1940s suffered gubernatorial interference. When HV Kamath lamented that there is no assurance that the governors will not meddle with the administration, PS Deshmukh replied that the guarantee for non-interference is “the governor’s wisdom and the wisdom of the authority that will appoint the governor” (Constituent Assembly Debates, June 2, 1949).

We have travelled a long distance since then. The optimism of Deshmukh did not materialise. Therefore, we are left to rely on judicial wisdom instead of political wisdom. The Raj Bhavans cannot imperil democratic governance and the rule of law. The obstinacy of the gubernatorial offices negates the ideology of the Constitution.

Kaleeswaram Raj is a lawyer at the Supreme Court of India. The views expressed are personal