Article 200 And A Constitutional Conundrum

Article 145 (3) and its Import

The decision is not rendered by a Constitution Bench of the Apex Court as is mandated in Article 145 (3) of the Constitution.

Article 145 (3) says: “The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five”.

It provides no option to the Court to decide against a hearing by a Constitution Bench. By interpreting Article 200, the Court issued the directions and now the question is whether a judgment rendered in violation of Article 145(3) is valid or not. In the present judgment, reliance is placed on the judgment in the matter of State of Punjab v. Principal Secretary to the Governor of Punjab & Anr., which was also not decided by a Constitution Bench constituted under Article 145 (3). Considering the impact of Article 145 (3) of the Constitution, both the Judgments need a relook.

It is to be noted that the framers of the Constitution provided Article 145 (3) in the Constitution to ensure that the articles in the Constitution are interfered with only after detailed and proper analysis and the decision is rendered with judicial authority. It is to be borne in mind that through Article 124, when the Supreme Court was established, the framers of the Constitution provided a Chief Justice and 7 other judges to the Supreme Court. When we consider that, the Constitution warranted a hearing by a bench having 5 out of 8 judges [more than 62 % of the Supreme Court judges] in Constitutional matters, even a five judge bench will be falling short of the Constitutional mandate in this era.

Going by the settled law that when something is directed to be done in a particular manner, the manner prescribed has to be followed to make the action legal and justifiable. [See Nabam Rebia v. Deputy Speaker, (2017) 3 SCC 326, Judgment dated January 14, 2016]

Article 368 and its Import

What is contemplated through Article 145 (3) is only the interpretation of the Constitution. It does not provide for amendment to the Constitution itself, which is always within the domain of the legislature. Adding something more to Article 200 necessarily means an amendment to the Constitution itself. Article 368 of the Constitution contemplates the amendment of the Constitution which involves, addition, variation or repeal. Such a process cannot be done through a judgment rendered while interpreting the Constitution. It is to be born in mind that the Supreme Court is also bound by the Constitution of the country and it is often held by the Apex Court that legislation is not within the realm of the Courts in this Country.

Through the present Judgment, the Apex Court has added a time limit and a provision for deemed assent in Articles 200 and 201. The Constitution of India does not provide for the amendment of the Constitution in a manner other than through Article 368 of the Constitution. In the present case, the incorporation of the additional terms to Articles 200 and 201 assumes the nature of an amendment to the Constitution.

Acting in the Realm of Legislation

Another reason to say that the Apex Court has exercised its authority in the realm of legislation is that in terms of Article 168, the Governor of the State is also a part of the legislature. Similarly, the assent from the Governor makes the legislation valid. Considering this, the act of granting assent is also a part of the legislative process and the self-imposed restraint expressed by the Courts in this country in the matter of legislation and related matters is not seen shown while interpreting Articles 200 and 201. Undoubtedly, the directions issued are by entering the field of legislation. Further, a Court is not expected to consider the need of the legislation or the legislative process. It is absolutely with in the realm of legislature and Courts are expected to refrain from issuing directions in this regard.

Discretion of the Governor Under Article 200

Another well settled principle in interpretation is that the words used in the legislation has a definite purpose and meaning. The very purpose of contemplating the assent from the Governor is to have a look at the bill and to arrive at a prima facie finding that the bill conforms with the norms which would make the enacted legislation valid. While performing this duty, the Governor has the right to give assent, withhold assent or refer the matter to the President of India. [B K Pavithra & Ors. v Union of India & Ors. (2019) 16 SCC 129]

In the first part, Article 200 provides for the option of withholding the assent. Article 201 gives the President of India a similar power to withhold assent. In my view, the meaning of the words- withholding the assent- is to be understood with reference to Article 201 as well. Further, Article 163 does not have any bearing on the grant of assent. Article 200 is one of the Articles in the Constitution of India which gives discretion to the Governor, though the options are limited to three. He is not expected to act on the advice of the Council of Minister while exercising the power conferred on him under the Article. If a contrary view is adopted, there remains no purpose in providing Article 200 in the Constitution of India.

On the other hand, the framers of the Constitution contemplated Articles 200 and 201 as a check on the unbridled freedom of legislature in framing legislations which may be prima facie against the Constitution or any settled legal precedent. The grant of assent, if it is made, on the advice of the Council of Ministers or for the reason that the legislature has passed the bill with the majority, the desired check and balance contemplated in the Constitution would fail.

'Will of the People' and Assent

The concept of 'will of the people' has its own restrictions while granting the assent. This is evident from the last part of Article 200, which provides for mandatory reference to the President in the case of certain bills. If the 'will of the people' concept was absolute, there should have been no such provision in Article 200. If the 'will of the people' is the sole criterion, then a single judge of the High Court striking down a law would sound unjustifiable.

The public perception that there is a logjam or that the Governor is acting as a stumbling block in the enactment of a statute may be based on political inclination or even the result of a lacuna in the Constitution in dealing with such a situation. Such a situation is to be dealt with by the legislature itself. In my humble view it is not area where the Judiciary needs to interfere, as it is solely within the domain of the legislation and legislature. The separation of powers, which is the basic principle in our Constitution, which, in my view, maintains this country as a successful democratic nation, needs to be respected and followed.

Article 361 and its Impact

Article 361 of the Constitution gives protection to the President and Governors from Court proceedings against them. In this light, the Courts seldom issue notices to the Governors and they are not heard either. So, it is also to be considered whether orders, directions or observations made without hearing them are in violation of the principles of natural justice.

Considering the fact that under Article 200, when a discretion is given to them and the provision does not contemplate a timeline to exercise their powers, there can be many reasons that result in the delay in taking a call. None of the reasons would be placed before a Judge as the person who acted or did not act is not before the Court. In my view, when Article 361 directly prevents a judicial review of the actions of the President and the Governors, it is not justifiable to achieve the same indirectly.

The Impact

The most important thing that needs to be considered is the impact of the present directions. In fact, the impact is not on the Governors of the states but on the legislature, which includes the Assemblies and the Parliament.

Through the judgment, the judiciary steps into the realm of law-making and even adds something to the Constitutional provisions. If the “deemed to be granted assent”, as the several reports say, is a part of the judgment, the impact of the same could be assessed only once the same comes into operation.

Considering the practical problems faced, even the imposition of a timeline of three months through a constitutional amendment would create unwarranted problems. There could be two classes of legislation, one assented by the Governor and other declared as law by the Court, which is not contemplated in the scheme of our Constitution.

Last But Not the Least

The maintainability of a petition filed by the State under Article 32, the nature of fundamental rights which were violated, etc., are also matters to be considered while deciding the maintainability of the petition itself. But those have lesser impact on the nation, its polity and administration, as the Constitution provides authority to the Supreme Court, which may be in a different type of petition, to interpret the Constitution itself.

In the above view, the Judgment not being rendered in terms of Article 145(3) needs a review, and the matter needs a deeper consideration in the light of Articles 143(5), 168 and 368 of the Constitution.