Gubernatorial procrastination is unreasonable
Introduction :
- A Bill passed by the State Assembly becomes law only after it is assented to by the Governor. The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent. In all democratic countries, similar provision exists in their constitutions.
- It may look a bit strange that the law-making body does not have the final say in the process of law making and the Bill it passes gets transformed into law only when the Governor assents to it. Thus, the Governor’s assent becomes the most crucial act in the whole law-making process.
The examples of Kerala and Tamil Nadu:
- But the Governor’s assent has, of late, become a controversial issue in at least two States — In Tamil Nadu, the Governor forwarded the Bill for exemption from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay, while in Kerala, the Governor publicly announced that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill.
- Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent. Therefore, the question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
Role of Governor in Bill Passing Procedure of State Assembly:
- Article 200 of the Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly. He may give assent or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself.
- In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it. This provision contained in Article 200 (proviso) unambiguously affirms the primacy of the legislature in the legislative exercise.
- The third option is to reserve the Bill for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
- The fourth option, of course, is to withhold the assent. But it is not normally done by any Governor because it would be an extremely unpopular action. The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.
- The fact that the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill shows that this power should be exercised by the Governor extremely sparingly and after very careful consideration of the consequences of such action.
Practices overseas
- In the United Kingdom, royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter. By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
- In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.
- The lesson to be drawn from these practices is that refusal of assent is a practice which is not followed in other democratic countries. And in some contexts, it is unconstitutional or the Constitution itself provides a remedy so that the Bill passed by the legislature could become law even after the refusal of assent.
- The Indian Constitution, however, does not provide any such remedy. The courts too have more or less accepted the position that if the Governor withholds assent, the Bill ends. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.
Issue of challenge
- In this context, a legitimate question that arises is whether the government of a State can challenge the refusal of assent by the Governor in a court of law. Article 361 of the Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings.
- It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill. It may be noted that the Governor while declaring that he withholds assent will have to disclose the reason for such refusal. Being a high constitutional authority, the Governor cannot act in an arbitrary manner and, therefore, will have to give reasons for refusing to give assent.
- If the grounds for refusal disclose mala fide or extraneous considerations or ultra vires, the Governor’s action of refusal could be struck down as unconstitutional. This point has been settled by a Constitution bench of the Supreme Court in Rameshwar Prasad case.
- Of course, the court will not be able to direct the Governor to act in a particular way. Invalidation of the refusal to give assent to a Bill on the ground of mala fide, etc. leaves such other options to him to exercise — as mentioned in Article 200.
Time period to give (or withhold) assent:
- It is claimed that since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything.
- This is illogical and militates against the constitutional scheme in respect of law making by the legislatures. Not fixing any time line does not and cannot mean that the Governor can indefinitely sit on the Bill that has been passed by an Assembly. Article 200 does not contain such an option. The Governor is required to exercise one of the options mentioned in that Article.
Conclusion:
- We must understand the purpose of giving options is for the authorities to exercise one of them and not to do something which is not an option at all. All constitutional authorities are required to act in a reasonable manner.
- Governors must act as per the spirit of the Constitutional framework and values, instead of using the legal loopholes to act contrary to popular mandate.
Calamity-prone — urban India’s worrying storyline
Context:
The recent floods in Bengaluru have paralysed the city’s tech spine. The point has been driven home with viral images of some of the city’s most influential people being rescued by tractor and lavish villas under water.
Urban flooding:
- Urban flooding is the inundation of land or property in a built environment, particularly in more densely populated areas (like cities), caused by rainfall overwhelming the capacity of drainage systems.
- Unlike rural floods (Heavy rain over a flat or low-lying area), urban flooding is not only caused by just higher precipitation but also unplanned urbanisation and concretisation of soil that prevents natural drainage of excess surface water during monsoon.
Recent urban floods in India:
Similar scenes have played out in Delhi (2013, 2021), Mumbai (2005, 2017), Chennai (2015, 2021), and Hyderabad (2020), leaving behind extensive losses to property and life. In terms of damages, Mumbai reportedly lost ₹14,000 crore between 2005 and 2015 while the figure for Chennai was an estimated ₹15,000 crore in 2015 alone. Added to this are the social and human costs.
| Urban flood due to the torrential rain in October 2022 in Hyderabad led to the death of over 50 people. An extreme rainfall event due to climate change can cover 80 to 90% of Panjagutta area, according to a research by BITS-Pilani researchers on impact of climate change on urban floods in Hyderabad. |
Addressing urban floods:
- These events are usually met with a slew of knee-jerk reactions and politically motivated accusations. More often than not, river/drain cleanup measures, anti-encroachment drives, and stormwater network projects are proposed by the administrators concerned to appease the public and the media.
- Dearth of climate mitigation measures in urban planning and the uncontrolled urban sprawl only make the next calamity more likely. Across India, 65% of urban settlements do not have a master plan. Where these exist, they usually do not address issues of environmental protection or talk of climate change mitigation.
- Despite the lack of capacity and bandwidth in State governments to undertake this exercise (report by NITI Aayog in 2021), powers to prepare master plans remain with State governments, with city governments reduced to ‘stakeholders’ without much authority. While some city administrations have developed drainage/flood mitigation plans, these do not have the statutory backing such as a master plan.
Flaws in action plans
- Over the last few years, city administrations such as Mumbai, Ahmedabad, and Nagpur (among others) have begun adopting climate action plans. The Mumbai plan is particularly ambitious, covering all aspects of the city’s environment — from flooding to air pollution — and aligns itself with the larger national goal of net-zero emissions.
- However, as the plan lacks any statutory backing, it does not prescribe any regulatory controls and comes across as a series of recommended measures that can be adopted by the authorities/citizens. This crucial flaw is likely to render it toothless.
- Finally, these plans are usually an expert-driven endeavour, without the critical element of public participation. This further reduces the plan’s credibility. The lack of civic consultations also results in a greater focus on proposals such as the removal of encroachments — which disproportionately affect the poor — instead of a focus on other mitigation measures that can be adopted.
Way forward:
- What is needed is the creation of a comprehensive climate action plan for all key Indian cities and to give these plans statutory backing by bringing them within the ambit of the city’s master plan.
- This would also institutionalise processes such as public consultations within the plan preparation process. Beyond giving it the credibility to withstand administrative and political opposition, consultations will be effective in highlighting issues of underserved neighbourhoods — which are often overlooked in media narratives and by decision-making bodies.
- Further, there is a need for an environmental protection agency to proactively tackle issues related to climate change.
- Government should also implement the proposed ‘sponge cities’ mission- an urban mission along the lines of the AMRUT, HRIDAY and Smart Cities Mission. The idea of a sponge city is to make cities more permeable so as to hold and use the water which falls upon it.
- Sponge cities absorb the rain water, which is then naturally filtered by the soil and allowed to reach urban aquifers. This allows for the extraction of water from the ground through urban or peri-urban wells. This water can be treated easily and used for city water supply.
- It should be complemented with an effective implementation of National Wetland Policy that prevents human encroachment on urban water bodies. This policy should include watershed management and emergency drainage plan.
Conclusion:
Mitigating urban floods will require long term vision including reducing, addressing and preparing for climate change and related extreme weather events.
