On November 29, the Supreme Court bench heard the plea filed by the state government of Kerala against its Governor Arif Mohammed Khan for sitting over eight bills that had been passed by the state government. During the hearing, the bench led by Chief Justice of India DY Chandrachud was informed by Senior Advocate and former Attorney General for India, KK Venugopal that Governor Khan had assented to one of the eight bills, referring the remaining seven to the President. As may be noted, on November 24, the Supreme Court had asked Governor Khan to refer to the judgment passed by the Supreme Court in a similar case on Punjab Governor’s inaction on bills. CJI Chandrachud had also asked Attorney General for India R Venkataramani to look at the order passed by the Court in the Punjab matter and give the Court their response after that. It is after the said order that Governor Khan had sent seven out of the eight bills to the President for her consideration.
During the hearing, the bench, also comprising Justices JB Pardiwala and Manoj Misra, expressed dismay and took strong exception over Governor Khan sitting over the eight bills for a period of two year. As per a report in the LiveLaw, CJI Chandrachud observed that “No reason has been given by the Governor to keep the bills pending“. Referencing to the judgment passed by the Supreme Court on the Punjab Governor case, the CJI further criticised the conduct of Governor Khan and held that “The power of the Governor cannot be utilised to pause the law-making exercise of the legislature”.
The bills mentioned in the petition:
As per the report in the LiveLaw, the following bills had been mentioned in the writ petition filed by the state of Kerala. The period for which the said bills had been awaiting the assent of the Governor is also provided.
- University Laws Amendment Bill (1st Amendment) 2021 -23 months
- University Laws Amendment Bill (1st Amendment) 2021-23 months
- University Laws Amendment Bill (2nd Amendment) 2021 [APJ Abdulkalam Technical University (Mal)] -23 months
- Kerala Co-operative Societies Amendment Bill 2022 [MILMA] -14 months
- University Laws Amendment Bill 2022 -12 months
- Kerala Lokayukta Amendment Bill 2022-12 months
- University Laws Amendment Bill 2022 -9 months
- Public Health Bill 2021 -5 months
On November 28, Governor Khan had cleared the Public Health Bill and referred the rest to the President. Among the referred bills are bills which proposed to divest the Governor of the powers to make appointments in State Universities and another bill that sought to limit the powers of Kerala Lok Ayukta. Another bill related to the MILMA society have also been referred to the President.
Arguments during the hearing:
Advocate Venugopal urges for court to lay guidelines on power of the Governor to refer bill to the President
Advocate Venugopal, representing the state of Kerala, highlighted that some of the bills pending with the Governor had been passed back in the year 2021 itself. The senior advocate further raised the argument that a Governor cannot simply refer a bill for the President’s consideration and urged the Court to issue guidelines for the exercise of that option by the Governor. He pointed out that of the seven bills, three were earlier issued as Ordinances, for which the Governor had granted assent. The issue of contention that he raised in reference to these where that how could the Governor have an objection to the bills at this stage and refer them to the President, when he had passed the same an Ordinances.
However, when the aforementioned arguments where raised, the bench pointed that a prayer for guidelines will be broadening the scope of the present writ petition. As reported in the LiveLaw, the CJI highlighted that with the passing one bill and referring the others to the President, the Governor has taken some action and the initial grievance ventilated in the petition has been resolved. In reference to the same, the petition that was moved under Article 32 of the Indian Constitution lay resolved.
Upon this, advocate Venugopal sought liberty to amend the petition to seek reliefs regarding guidelines. “There is no single power in the Constitution vested in any authority which is arbitrary. The constitution would say Art 14 would apply to any action,” Venugopal had argued, as per the report in the LiveLaw.
Advocate Venugopal submitted that the Kerala Governor had sent seven of the eight bills before him to the President though the said bills were not in conflict with any central law. He also pointed out that eight new bills, including a money bill, have been sent to the Governor for his assent. Decrying violation of Article 200, advocate Venugopal stated that “Now seven out of eight bills sent for Presidential assent. This is just to delay the case. He can do so only if there is an inconsistency with a central law. He cannot blindly take the seven bills and send to president. There are eight other bills pending before him and it was passed in September and he is sitting on it,” Venugopal said.
While praying for keeping the present application pending with liberty to amend the prayers, advocate Venugopal further pointed the adversarial conduct by the Governor is affecting the working of the state. The senior advocate stated “For two years a welfare bill is not allowed to be law. The governance of the state is suffering. This is adversarial. Unless your lordships step in very strongly, it will affect citizens.”
Advocate Venugopal re-iterated the crucial need for laying down clear guidelines on the power guaranteed to the Governor of the state to refer a bill to the President so that the people of the state do not suffer. The counsel had stated, “Time has come today that this court should lay down some guidelines as to when the bills can be reserved for the presidential assent and unless this is laid down the state is suffering. A bill cannot be kept pending for two years like this. This seems adversarial. Unless this court steps in strongly the people will suffer,” as per a report of Bar and Bench.
Attorney General for India R Venkataramani refuses to get into the political arguments, assures action by the Governor
Throughout the hearing, AG Venkataramani was vehemently objecting to the demand for laying down of guidelines on power of the Governor to refer bills to the President being raised by advocate Venugopal. The AG maintained the stance that the said relief cannot be sought in the present petition.
After advocate Venugopal made his submission, the CJI remarked that there was some merit in the arguments raised by advocate Venugopal and asked the AG, “Mr AG, there is some merit in the argument. Why is governor sitting on bills for 2 years?” as per the LiveLaw report.
Upon this, the AG replied that he does not want get into a political battle and said “I don’t want to get into a political…I do not wish to go into this as it will open up a lot of things” said the AG.
Refusing to take the issue highlighted by advocate lightly and settling for the reply given the AG, the Supreme Court bench pointedly said “We will get into it very much… There is accountability by the Governor and it is about our accountability to the constitution and the people ask us about it,” the Court said.
Regarding the money bill that was recently sent before the Governor, the AG assured the bench that the Governor will act on it. “He will act accordingly. I don’t think he will sit on money bill,” AG said. Notably, the bench had recorded the AG’s assurance in the order.
Order of the Court:
The said hearing saw many interesting twists and turns taking place. It is crucial to note that initially, the Supreme Court bench was not inclined to lay down the guidelines being requested by the State of Kerala. “The prayer for guidelines will not strictly arise in the frame of petitions as it stands now,” the Court had initially said in its order, as per Bar and Bench.
However, the meritorious arguments raised by advocate Venugopal as well as the lack of adequate responses provided by AG Venkataramani resulted in the bench changing its stance. The CJI-led bench then stated, “We have to keep the matter pending. We thought of disposing the plea, but it will not be proper. Because then how they file another plea seeking just guidelines. This is a live issue. We have eight live bills and if we dispose this bill then we will do disservice to the petition. Let them amend the petition.”
With this, the Court allowed the State of Kerala to amend its plea to seek guidelines to be laid down by the Court for Governor to send bills passed by the State to the President. The Court, however, refused to interfere with the action of Governor Khan to send seven bills passed earlier by the State legislature to the President. The Court said that the with the Governor forwarding the bill to the President, the Constitutional requirement under Article 200 as regards granting assent to bills stood satisfied.
“It was only after this plea that Governor reserved seven bills for president assent and cleared one. The fact of the matter is Governor has albeit after this petition exercised his constitutional power by granting assent to 1 and reserved seven for the president. Now Article 200 requirements stands met,” the Court said in its order, as per Bar and Bench.
Even as the Court was dictating the order, it hoped that better sense would prevail among the political opponents in the State. The CJI remarked that in case there is no political consensus and the deadlock continues, the Court will do its Constitutional duty and lay down the law if needed. “Let us hope that some political sagacity takes over the State and we hope some sagacity prevails. Otherwise we are here to lay down the law and do our duty under the Constitution.”
The AG, once more, voiced his displeasure and opined, “We do not want to get into all of this. There is a lot happening in the State.”
However, not letting the remarks pass, advocate Venugopal defended the state government of Kerala and said, “He is making a lot of insinuating statements… State of Kerala is functioning beautifully in education, infrastructure, health care… these are serious statements.”