The finding of the Hon’ble Supreme Court in The State of Tamil Nadu v. The Governor of Tamil Nadu with respect to the constitutionally stamped avenues available to the Governor pursuant to Article 200 of the Constitution when a bill is presented to him appears to serve justice to the problem. However, does it equally render justice to the intentions of the draftsman of the constitution? This question assumes importance in the light hearing by the constitutional bench of the Supreme Court in In Re: Assent, withholding or Reservation of bills by the Governor and The President of India.
A Clear Proposition Needs No Interpreter
The substantive part of Article 200 offers only three options to the governor when a duly passed bill by the legislature is presented before him. Firstly, he can assent or secondly, withhold assent or thirdly, the governor can reserve the bill for the consideration of the president. Literal meanings of the words employed in the substantive part leaves no room for an ambiguity. In addition, the first proviso introduces an exception to the effect that the substantive part shall not prevent the governor from returning the bill to the legislature with a request to reconsider the same. Therefore, by virtue of substantive part of Article 200 and the first proviso, cumulatively, the Governor has four choices when a bill is presented to him. Whereas, the second proviso constitutionally earmarks a contingency in which the governor shall not assent to a bill and thereby imports a limitation to exercise of course of actions available to the governor when the proposed bill in his opinion if it became law, would derogate the powers of the High Court as to endanger the position which that Court is by the Constitution designed to fill. Import of literal plain interpretation gives a reasonable meaning which has to be presumed to be the meaning that the framers intended to give while enacting the provision. Despite, demonstrating absolute clarity, the Supreme Court decided to meddle with the words, background, history of Article 200 and reaffirmed the novel construction placed in State of Punjab v. Principal Secretary to Governor, wherein the first and second provisos were subjected to differential treatment to hold that the first is an explanation and second exception to the substantive part of Article 200, thereby, under article 200 the governor has only three options and the first proviso is not an independent course of action, whereas, the procedure contemplated in first proviso is to be satisfied if the governor decides to withhold the assent, i.e., return the bill for reconsideration. The Apex Court’s construction of the first and second proviso of Article 200 deepens the concerns towards the potential judicial tendency to substitute parliamentary amendment with shallow judicial constructions.
Government of India Act 1919
The historical background of Article 200 of the constitution establishes its affinity with Government of India Act 1919 and Government of India Act 1935. Perhaps, it is to be understood that the court failed to apply its judicial mind to section 12(1) of the Government of India Act 1919, which encompassed the first proviso to Article 200 in its substantive part, “ Where a Bill has been passed by a local legislative council, the governor, lieutenant-governor or chief commissioner may, instead of declaring that he assents to or withholds his assent from the Bill, return the Bill to the council for reconsideration, either in whole or in part, together with any amendments which he may recommend……” A bare perusal of section 12 would show that the act of return of bill for reconsideration was integrated to the substantive provision and it was not preceded by the conjunction “or” and therefore in the event of withholding it was incumbent to return the bill for reconsideration. Subsequent severing of the course for returning the bill from the substantive part and replication of the same in the proviso appended to the substantive clause manifest the intention of the legislature to provide independent character to the first proviso. However, the judgment is silent about the intention of the legislature while introducing the proviso instead of incorporating the same in the substantive part. The interpretation of the court that the recourse under first proviso is to be adopted if the governor decides to withhold the bill and thereby treating the first proviso as an integral part of substantive part buries the legislatures’ intention to distinguish the proviso from the substantive portion of Article 200.
Lacks fidelity to Language or History
Primarily provisos are canvasses employed by the draftsman to carve out exceptions to the general substantive part. The singular intention of the draftsman while crafting proviso is to project the instances of variations to the general rule. In hindsight, provisos are to be construed as exception unless otherwise it requires an alternate treatment. Therefore, it was incumbent upon the court to assimilate the first and second proviso to article 200 as exceptions to the substantive portion, since, the court has failed to portray any other constitutional compulsion that urge the court to invite other constructions.
Conclusion
The dual uncertified judicial yardsticks espoused to declare first proviso as explanation and second proviso as exception without any affirmative legislative or historic evidence result in watering down of the limitations on constructions that act as a brake against judicial dismemberment of legislatorial intentions.
About the author
Adv. Akhil George
