[This is a guest post by Dheeraj Murthy.]
The recent impasse between the Governor of Tamil Nadu and the DMK led Government regarding the NEET came to a presumable end as the Governor forwarded the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 (“the anti-NEET bill”) to the President for his approval. The development took place in the background of the escalating tensions between the Government of Tamil Nadu and its Governor when the Chief Minister dubbed the Governor as a “postman” to assert that the role of the Governor was to only forward the anti-NEET bill to the President for his approval. In line with the sentiment shared by most political parties in Tamil Nadu, the Chief Minister emphasized the Governors’ lack of authority to grant (or withhold) approval to the anti-NEET bill.
The controversy began when the Governor returned the anti-NEET bill and deemed it to be “against the interests” of underprivileged students after considering it for over 5 months. In an expected turn of events, the Legislative Assembly of Tamil Nadu was left to readopt the anti-NEET bill and send it to the Governor. The inaction of the Governor after the anti-NEET bill was readopted and sent to him prompted the Chief Minister publicly rebuke him with the “postman” analogy.
Relations between elected State Governments and nominated (often used as a pejorative) Governors have often been fraught with differences, which have since become a staple of Indian politics. However, the ongoing tension between the Government of Tamil Nadu and the Governor serves as a stark reminder regarding the shortcomings of our constitutional scheme concerning the process of law-making.
The ongoing controversy regarding the anti-NEET bill is rooted in the debate regarding the role of the Governor in the process of legislating under the Constitution. Notwithstanding the doubts raised regarding the anti-NEET bill passing the muster of constitutional validity, the developments in Tamil Nadu have thrown light on questions regarding the gubernatorial powers and the propriety expected to be observed by the Governor in the absence of explicit provisions in the Constitution in the process of law making.
Dual Nature of Gubernatorial Functions
Despite gaining Independence from colonial rule, the founders of the Republic of India consciously chose to retain the position of Governor – a decidedly colonial position. The position was redefined to suit the sensibilities of a constitutional democracy and had only limited powers to exercise. Under Article 154, the executive power of a State is vested in the office of the Governor. Significantly, Article 168 prescribes that the Governor along with the Legislative Assembly (and Legislative Council in some states) shall comprise the “Legislature” in every State.
However, unlike the representative character of the Legislative Assembly, the Governor is not elected. The Governor is an appointee of the President to serve at his pleasure (and intended to act as a conduit of communication between the Union and the States) and is incapable of impeachment. Hence, the Governor is a functioning constitutional duality – he is a constituent of the “Legislature” of a State while also wielding executive (albeit nominal) powers.
Significance of the Governor as a Constituent of the “Legislature”
The legislative powers between the Parliament and State Legislatures have been distributed as per the Seventh Schedule of the Constitution in the form of the Union List; State List and Concurrent List. These lists contain the subject matters to be legislated upon in the form of their entries. Under Article 246 of the Constitution, Parliament and State Legislature have exclusive powers to frame laws with respect to entries under the Union and State Lists respectively. However, the Parliament and State Legislature are both empowered to make powers with respect to entries under the Concurrent List.
Crucially, Article 254 provides that in the event of any conflict between laws passed by the Parliament and State Legislatures, the former shall prevail to extent of the conflict. However, Article 254(2) states that for legislation framed by the State Legislature to prevail, it must receive the assent of the President (this remains without prejudice to the power of Parliament to enact a law amending or repealing the state law after receiving the assent of the President).
Logically, this is predicated on the law being passed by the “Legislature” of each state i.e., the Legislative House (typically the Legislative Assembly only) and the Governor. Thus, when a law concerning an entry in the Concurrent List has been drafted and passed by the Legislative House, it is presented to the Governor as per Article 200. As a constituent of the “Legislature”, the Governor is obliged to declare his intention when a bill is presented for his consideration.
Accordingly, in the case of the anti-NEET bill, the Governor had three modes of exercising his discretion under Article 200 after the anti-NEET bill was passed by the Legislative Assembly. First, to have assented to the anti-NEET bill after which it would be sent to the President for his assent (as required under Article 254(2)). Second, to reserve the anti-NEET bill for the consideration of the President (without expressing his opinion) as the anti-NEET bill pertained to an entry under the Concurrent List (as was done by the Governor ultimately after the anti-NEET bill was readopted). Third, to withhold assent to the anti-NEET bill.
It is significant to mention that under the Constitution, the last option is not in the nature of a veto as the Governor is bound to accord his assent if the bill is re-presented to him regardless of his views. This is because the powers of the Governor are only nominal wherein his sole responsibility is to record his intent as stipulated under Article 200. This responsibility is devoid of any law-making power. The power to frame legislation remains firmly vested in the Legislative Assembly – it being the repository of legitimate democratic will.
Thus, as the subject matter of “medical education” fell under the Concurrent List, the anti-NEET bill was required to receive the assent of the President, without any constitutional obligation incumbent on the Governor to record his views – much less to return it – lest it be void as the NEET is a product of the National Medical Council Act, 2019 viz Parliament enacted law.
Absence of Written Instructions: Taking a leaf out of the colonial legacy
In returning the anti-NEET bill for reconsideration by the Legislative Assembly, the Governor of Tamil Nadu opined that the bill was “unsound” and cited judicial precedent in support of the NEET. Notwithstanding the actions of the Governor to act as a “super-legislature”, there are doubts regarding the basis on which the bill was returned.
Ordinarily, the assent of the Governor is the final step in clearing legislation concerning entries under the State List. However, when laws are framed by the Legislative Assemblies concerning entries under the Concurrent List, they must necessarily receive the assent of the President (and not the Governor) to become law. This is clearly borne out by a combined reading of Article 200 and Article 254. Hence, it is the President alone who has the competence to assent to any legislation concerning the Concurrent List in order for it to become binding law.
In these circumstances, the role of the Governor is restricted to merely facilitate (either by assenting or reserving such legislation for the President) communication of such legislation to the President. Moreover, the withholding of assent by the Governor is immaterial as he is bound to accept the bill if it is represented to him for his assent. The present controversy in Tamil Nadu has shed light on the relevance of codifying conventions as there is nothing explicitly stating that the Governor is bound to reserve a bill pertaining to the Concurrent List for the assent of the President. In matters of administration, interpretation of laws should hardly act as a substitute for clear obligations defined in the Constitution.
During colonial rule and specifically under the Government of Indian Act, 1935, the conduct of the Governors of Provinces was informed by an Instrument of Instructions (as prescribed under Section 53 and 54) which laid down the mechanism of gubernatorial functions. The aid of an Instrument of Instructions for Governors was left out of the Constitution as it was felt to be unnecessary in Independent India. The makers of the Constitution dispensed with a written set of instructions and left the conduct of Governors in certain circumstances “entirely to convention”. The debates in the Constituent Assembly also made clear the nominal nature of the functions of the Governor wherein it was ultimately accepted that the Governor was hardly to have “any discretion at all”. It is this background which supplies the restrictive nature of Article 200 and the basis for arguing that the Governor of Tamil Nadu ought to have assented to the anti-NEET bill.
Reigning in Imagined Legislative Powers
Despite being a constituent of the “Legislature”, the role of the Governor is executive and does not become legislative when a legislation is sent for his consideration. As stated earlier, the limited function exercisable by the Governor under Article 200 is limited to three options without any scope to apply his “legislative mind”. In Amar Singhji vs. State of Rajasthan, the Supreme Court affirmed this position and ruled out the possibility to interpret the Governors’ function in declaring his intent as “legislative” when presented with a bill.
Legislating requires cogitating by representatives without any “super legislature” to guide it or supplant its views as the power of legislating remains firmly vested in the Legislature and not with the Governor. In these circumstances, it is evident that any legislation (pertaining to an entry under the Concurrent List) must be sent to the President. However, the controversy in Tamil Nadu has shown that there is a perceptible gap regarding the conduct required from a Governor when presented with a bill pertaining to a concurrent list entry for consideration under Article 200.
While the makers of the Constitution deliberately chose convention and propriety to be the guiding the conduct of the Governor, there is sufficient scope for ambiguity. The experience in Tamil Nadu has shown that it may be prudent to develop an alternative in codifying gubernatorial conduct. This is as opposed to allowing the discretion of a Governor to assume disproportionate and unintended significance in the process of legislating. Not doing so would dilute the efficacy of legislating and create an unintended conflict between the Governor and the Legislative Assembly.