In a significant judgment concerning the constitutional role of Governors, the Supreme Court has ruled that under Article 200 of the Indian Constitution, Governors are generally bound to act in accordance with the aid and advice of the State Council of Ministers when considering assent to state legislative bills.

“We are of the view that 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,”
– Bench of Justice JB Pardiwala and Justice R. Mahadevan

This ruling came in the context of the Tamil Nadu Governor case, where the apex court addressed the constitutional boundaries of the Governor’s powers regarding legislative assent. The Court made it clear that Governors do not enjoy discretionary powers in this area, except in clearly defined exceptional cases.

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The Supreme Court outlined a few narrow exceptions to this general principle:

1. Bills falling under the second proviso to Article 200
2. Bills that fall under specific constitutional provisions like Articles 31A, 31C, 254(2), 288(2), and 360(4)(a)(ii), where President's assent is a precondition
3. Bills that may endanger the fundamental structure of representative democracy

These exceptional scenarios permit the Governor to reserve the Bill for the consideration of the President of India.

The Court referred to the Government of India Act, 1935, where the Governor had express discretion to reserve bills. However, the framers of the Indian Constitution chose to remove this discretion to reflect the shift in power towards democratically elected governments.

“The deletion of the expression ‘in his discretion’ while adapting Section 75 of the GoI Act, 1935 into Article 200 is a clear indication of the framers’ intent,”
– Supreme Court

Under Article 163(1), the Governor is expected to act on the aid and advice of the Council of Ministers, unless explicitly stated otherwise in the Constitution.

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The bench warned that granting unrestricted discretion to the Governor would transform the role into that of a "super-constitutional figure", enabling the possibility of undermining the will of the legislature.

“If the power to withhold assent or reserve a bill is construed as part of the Governor’s exclusive discretion, it could halt legislative machinery and allow collusion with the Union Government,”
– Supreme Court Observation

Such a situation could allow the Governor to stall or kill legislation passed by the State Assembly, effectively negating democratic will.

The Court also overruled a prior observation made in the 2019 B.K. Pavitra case, which held that the Governor did have discretionary power in reserving bills for the President.

“We find ourselves in disagreement with the view taken in B.K. Pavitra… The Constitution does not confer such discretion upon the Governor. The removal of ‘in his discretion’ confirms this,”
– Justice Pardiwala

This observation aligns with the 1974 Constitution Bench ruling in Shamsher Singh, which emphasized that Governors function under the cabinet system and act on ministerial advice.

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The Court cited the Shamsher Singh judgment:

“Under the cabinet system of Government, the Governor is the constitutional or formal head of the State and exercises all his powers… on the aid and advice of his Council of Ministers, save in spheres where the Constitution requires him to act in his discretion.”

This reinforces that, except where explicitly stated, the Governor cannot act independently of the State Government’s advice. The Court also referred to judgments in Madhya Pradesh Special Police Establishment and Nabam Rebia, which reiterated this principle while acknowledging rare, exceptional scenarios for discretion.

Justice Pardiwala emphasized that the only instance where the Constitution expressly mandates discretion is in the second proviso to Article 200, which deals with Bills affecting the powers of the High Court.

“The Governor 'shall' reserve for the President any Bill that, if passed, would derogate from the powers of the High Court,”
– Justice Pardiwala

Even so, the Governor must tread carefully and only exercise this discretion in alignment with constitutional principles.

Case Details: THE STATE OF TAMIL NADU v THE GOVERNOR OF TAMILNADU AND ANR| W.P.(C) No. 1239/2023