Kerala Governor Rajendra Vishwanath Arlekar is upset with the Supreme Court verdict on April 8 that fixed a time-limit for governors to give assent to bills passed by state legislatures.

In an interview with Hindustan Times on April 12, Arlekar called the time-limit prescription "judicial overreach", and argued that such a change in law, a constitutional amendment, fell within the competence of the Parliament and not the courts. He even said that the court setting a deadline for governors was "not implied in the Constitution".

The April 8 ruling of the SC said that if assent to a bill is withheld, the governor has to return the Bill to the Assembly within three months. If the governor wants to reserve the bill for the President's consideration, it has to be done before three months.

Deception of 'as soon as possible'
It was the directive "as soon as possible" in Article 200 of the Constitution (which deals with the assent of bills) that seems to have presented governors the legal loophole to veto bills passed by the state assemblies, and also claim complete immunity from judicial scrutiny.

When a Bill comes before them, Article 200 offers governors three choices: give assent or withhold assent or reserve for President's consideration. If it is the second option (withholding of assent), the Article says that the Governor "may, as soon as possible after the presentation to him of the Bill for assent, return the Bill" back to the Assembly for reconsideration.

In practice, a phrase that was originally intended as an urgency alert, allowed governors to sit on bills indefinitely. In Tamil Nadu, Governor R N Ravi withheld assent for 12 bills passed by the Assembly but he did not bother to return these bills to the Assembly for reconsideration, as is required under law. University laws passed by the Kerala Assembly, too, have met the same fate under former governor Arif Mohammad Khan.

Now, Governor Arlekar says that it is fine to tell governors that they should not keep bills pending but legally untenable to set them a deadline. However, a close look at the evolution of the assent law would reveal that, contrary to Arlekar's claims, governors too have been asked to stick to a schedule.

Ambedkar's intervention
In fact, in the draft of Article 200, it was not "as soon as possible". There was a specific deadline. "Not later than six weeks," it had said.

It was the chairman of the Constituent Assembly, B R Ambedkar, who got the "not later than six weeks" replaced with "as soon as possible". Ironically, Ambedkar found six weeks too long and wanted governors not to waste time. So, to infuse urgency, he made it "as soon as possible". Interestingly, Ambedkar was sharply criticised for conflicting reasons. One for wanting to push governors too hard, and the other for setting an indeterminate period for governors to act.

"If we leave it exactly as Dr Ambedkar would have it, it leaves no margin. 'As soon as possible' means immediately. It may leave no breathing time to the President/governor," said Naziruddin Ahmad, a prominent Muslim voice in the Constituent Assembly. Ahmad toned it down, suggested "as soon as may be"; his way of saying "as soon as reasonably possible".

H V Kamath's argument was prescient. "In human nature, if you will permit me to say so, unless there is a compelling sense of duty or service, there is always a tendency to procrastinate," he said during the Constituent Assembly debate on May 20, 1949. Kamath wanted a specific time limit prescribed. Ambedkar prevailed.

The two-judge Supreme Court verdict, too, felt that the Amdedkarite expression 'as soon as possible' imposed a "sense of urgency upon the Governor and expects him to act with expediency if he decides to declare the withholding of assent."

Governor's waning discretion
Further, a time-limit for governors seems logical as Independent India wanted less powers for the governor, a colonial leftover.

Under the Montagu-Chelmsford Act, 1919, the Governor of a province and the Governor General of India (both Britishers) enjoyed both absolute and pocket veto. The governor was under no compulsion to give his assent to a bill. He could also veto a bill without giving any reasons.

(Though the post-Independence Article 200 makes it mandatory for governors to tell why a bill has been withheld, the Tamil Nadu governor and the former Kerala governor, as if invoking rights contained in the 1919 Act, had refused to do so.)

What's more, the Governor general (the Crown's representative) can let a bill lapse by just not acting on it for six months.

It was on a later piece of British legislation, Article 75 of the 1935 Act, that Article 200 was modelled on.

In the 1935 Act, the provincial legislature had no choice but to reconsider the bill they way the governor wanted it to be. Article 200 turns the tables. It gives the legislature the last word. Once the bill returns after reconsideration, with or without the changes proposed by the governor, Article 200 says "the Governor shall not withhold assent therefrom."

But there is an equally significant departure from the 1935 Act. The expression "in his discretion" found in Article 75 of the 1935 Act has been omitted from Article 200. During the Constituent Assembly debate on July 30, 1949, Ambedkar said: "In a responsible government, there can be no room for the Governor acting on discretion."

Are governors above law?
Governor Arlekar's disapproval of the SC verdict stems from his understanding that a constitutional amendment is the prerogative of the Parliament.

However, the SC made it clear that the time-limit it has introduced was not a constitutional restraint. "There is no clause that says that if it is not done within the time prescribed, the assent will be deemed to be given," the SC said in its April 8 verdict.

In short, there will be no consequence for the governor if he fails to meet the deadline. However, unlike before, his failure to meet the deadline will be subjected to judicial review. Till now, under the cover of the "as soon as possible" clause, governors had effectively kept themselves out of the reach of the courts. Not any more.