Recently, the Supreme Court of India delivered a judgement in State of Tamil Nadu vs. Governor of Tamil Nadu, wherein the issue was that the governor initially refused to sign or assent to the bills approved by the Tamil Nadu Legislative Assembly. Later on, the governor referred the bills to the President of India. The President of India did not assent to the bill, nor did she refer the bill back to the legislative assembly with comments for reconsideration of the bill by the assembly. The non-reference of the bill back to the assembly and not giving assent to the bill became an issue with the government and the governor.

The questions that arise are:

(1) Is the Supreme Court authorised to admit and hear the matter and give judgement on the subject? Can the bill, approved by the Assembly but not assented to either by the governor or the president, be treated or considered to have become the law?

(2) Can the Supreme Court compel the governor or president, under Article 142 of the Constitution, to assent to the bill under the concept of giving full justice, and can it entertain this kind of petition and give judgements?

(3) Is the Supreme Court authorised to entertain a dispute between the legislative assembly and the governor?

Once a bill is introduced and approved by the state legislature, it is referred to the governor of the state for assent under Article 200. On receipt of the approved bill by the state legislature, the governor shall either, as soon as possible, assent to the bill or refer the bill with his comments back to the legislature for consideration or forward/reserve the bill for the consideration of the president. Article 200 of the Constitution says that if the bill is returned to the legislature with the governor's observation, the House might consider the observation or may not consider the observation and again approve the bill and refer it to the governor for his assent. After the bill is referred to the governor for a second time, under Article 200 of the Constitution, the governor has no option but to give his assent to the bill. In the case of Tamil Nadu, the governor initially withheld assent and, subsequently, did not return the bill with a message for reconsideration. On its own, the Tamil Nadu legislative assembly approved the same bill a second time and referred it back to the governor. The question is, how long can the governor withhold its assent? The Constitution states, “as soon as possible on presentation,” but remains silent on the specific time point. The question is, where the Constitution is silent, a constitutional convention or constitutional morality needs to be developed. The legislative assembly is the highest law-making body in the state. The legislative assembly represents the will of the people. The positions of the president and the governor, as outlined in the Constitution, are that of a “Mukhiya”, a constitutional head who has been entrusted with the power to suggest and refer a bill back to the assembly only once. The Constitution itself, in Articles 111 and 200, provides the procedure that needs to be developed in case of conflict between Parliament and the president, and between the state legislature and the governor. On the refusal of either the president or the governor to give assent to the approved bill, the first option available is to move a no-confidence motion against the president in Parliament and against the governor in the legislature on the ground that both have failed to follow the advice tendered by the council of ministers. If the Parliament or the state legislature does not want to follow the first route, the second option is the Parliament or the state legislature, in its own wisdom, should reconsider the bill, and if approved again, the president or the governor has no option but to assent. This constitutional convention, or constitutional morality, introduced and developed by the Tamil Nadu legislature, is not examined in the judgement as to the constitutional validity of the convention or morality.

Now, in a situation where the governor reserves the bill for the president's consideration and the president withholds assent, what must the state legislature do?

On a non-receipt message from the president to the legislature, the legislature can, on its own, take the bill for reconsideration and may either approve it or reject it. However, once a bill is approved for the second time, the president has no option but to assent. However, where the message is received, the legislature shall consider the message within six months. To develop a constitutional convention, or constitutional morality, the legislature should wait for six months before reconsidering the approved bill. The question raised by the president under Article 143 to the Supreme Court concerns the duration for which the president can withhold a bill. The article itself provides the convention or morality to be developed. In this case, the Supreme Court, instead of serving as a court of guidance and helping to create constitutional conventions and morality, has imposed itself as a superhero and the boss of the........

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