Lawmaking by legislatures is an essential feature of democracy, and cannot be at the mercy of individual people
State ministers, sometimes even chief ministers, especially those belonging to political platforms opposed to that of the ruling party at the Centre making regular visits to the Raj Bhavans seeking assent to bills passed by the state legislatures and the ordinances cleared by the state cabinets are an unacceptable sight in a democracy. The presiding deities of the Raj Bhavans, acting mostly at the behest of the Union government, abuse a grey area in the Constitution and sit in judgment over the laws made by the state legislatures and the council of ministers, the legal entities mandated by the Constitution to run the affairs of a state in a way the its framers have not dreamt of.
Article 246(3) of the Constitution accords the state legislatures exclusive power to make laws with respect to matters falling in the state list in the Seventh Schedule and Article 246(2) empowers them to make laws in the subjects in the concurrent list. As per the constitutional scheme a bill becomes an act when the governor of the state accords his assent to it. Article 200 of the Constitution has also defined the options before a governor when presented with a bill — give assent to it, withhold assent, or reserve it for consideration of the President. On withholding the assent, the governor may, as soon as possible, return it to the legislature for its reconsideration. And if the bill is passed again by the House with or without amendment, then the “governor shall not withhold assent therefrom”.
It is clear from these constitutional provisions that the governor has no power to veto a bill nor to assess its constitutionality. The check and balance system with respect to the law-making powers of the state legislature will kick in when the judiciary applies its mind to it. The Constitution is, however, silent on a time frame for the governor to decide on giving assent, and some governors take this as a permission by the Constitution to pick and choose the bills they want to sign. This is in effect turns the logic and reason of constitutional governance on its head as it will effectively negate the law-making powers of the elected representatives.
The governors as per the Government of India Act, 1935, represented the British Crown and were not answerable to the people of India. The legislatures and the councils of ministers under that Act were a choice of the British government, too. But the Constitution of India and constitutional courts which have deliberated on the powers of the governors have categorically underlined the primacy of the state legislatures and the councils of ministers on governing a state, leaving very little to the discretionary powers of the governor.
It is time the Parliament or the Supreme Court of India put an end to governors exploiting a grey area in the Constitution to undermine the will of the people by making clear the legislative intent of the constitutional provisions related to the powers of the governor with respect to giving assent to bills and ordinances. Lawmaking by legislatures is an essential feature of democracy, and cannot be at the mercy of individual people.