Our judiciary can be expected to be thick skinned, given the constant stream of uninformed criticism it is routinely subject to. If the vitriol has become more caustic in recent times, it is also distinctly partisan. Given the sharp political divide, the ruling establishment, as well as the backers of the opposition, demonstrate equal vigour in denouncing judgments which hurt only their own interests.

While it would be foolish to suggest that all is well within the sanctum sanctorum of justice and jurisprudence, the one astonishing aspect which is striking is the singular lack of recognition of the fact that the Supreme Court merely interprets the Constitution which the people have adopted. The recent furore over the judgment in The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr., is a case in point.

The root of the controversy was State legislation to amend several university laws to provide that Vice Chancellors of Universities would be appointed by the State Government rather than the Governor. I am far from familiar with State politics nor the context or intent of such amendments. However, it does not take any great insight to surmise that given the hitherto known propensity of universities to earn capitation fees, the Central Government would be keen to ensure that it’s eyes and ears in the universities are not blindsided, especially with state elections a few months away. Those aware of my own moral and political leanings, know that I would personally consider this to be a laudable objective. However, for whatever reason best known to the Governor of the State, the Bills forwarded to him for his assent gathered. Until the Supreme Court in State of Punjab v Principal Secretary to the Governor of Punjab ruled in November 2023 that a Governor cannot be at liberty to keep a Bill passed by the State legislature pending indefinitely. The Supreme Court correctly read Article 200 of the Constitution and pronounced the law - a Governor cannot withhold assent on Bills passed by the State legislature.

The substantive part of Article 200 sets out three options available to a Governor when presented with a Bill passed by the State legislature. A plain vanilla assent to the Bill is what would be typically expected. The Governor however can also reserve the Bill for the President’s consideration or to withhold assent. However, the Governor cannot withhold assent simpliciter, since that would imply the exercise of a veto power on a Bill passed by the legislature. Whatever may be the desirability or otherwise of the said legislation, the fact remains that India has adopted the Westminster model according to which the sovereign i.e. the President or a Governor of a State is only a nominal head. The conventional wisdom being that laws should be enacted only by the elected representatives, the collective will of the legislature cannot be stymied by the Governor. The Supreme Court therefore ruled - correctly in my view - that the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action set out in the first proviso which requires the Governor to return the Bill to the house requesting it to be reconsidered “as soon as possible”. In Re. State of Punjab, the term “as soon as possible” was held to convey a “constitutional imperative of expedition”.

By all accounts Shri R N Ravi is a stellar individual but whichever way one looks at it, the Constitution of India mandates that the Governor cannot exercise a de facto veto over state legislation. Unfortunately for Shri Ravi, While Article 163 of the Constitution does envisage the exercise of discretion by the Governor of certain functions, the exercise of a ‘pocket veto’ of state legislation is not one of them.

It does seem that Shri Ravi was poorly advised since just as the decision of the Supreme Court in Re. State of Punjab was pronounced, he took a decision on the Bills which were pending before him. While 2 Bills were reserved for the consideration of the President, the Governor, despite the decision of the Supreme Court in Re. State of Punjab, withheld assent simpliciter on the other 10 Bills without requesting the House to reconsider them. Possibly because if the House passed the Bills in their present form without any amendment, he would be unable to withhold his assent.

The State legislature thereafter convened a special session and reenacted the 10 Bills on which the Governors assent was withheld simpliciter. The Governor then reserved the reenacted Bills for the consideration of the President on grounds of repugnancy. Education being on the concurrent list, Article 254 sets out the constitutional rule that if any state Bill or a provision in a state Bill is contrary to a provision in a central act, the latter would prevail, unless the state Bill has received the assent of the President. The Governor’s decision to reserve the Bills drew the ire of the State which alleged mala fide intent. The fact that the decision to reserve the Bill for the consideration of the President only after first having withheld assent would have weighed heavily with the Apex Court.

The Supreme Court in Re. State of Tamil Nadu pronounced its verdict after an exhaustive review of the history of Article 200, the role of the Governor and the scope of his discretionary powers, the recommendations of the Sarkaria Commission and the Justice M M Punchhi Commission and even international jurisprudence.