Dr. Justice A. K. Rajan, L L D
Constitution of USA
Under Article 1 section 7, of the Constitution of U S A, every Bill passed by the Congress (House of Representatives and the Senate) should be presented to the President; if he approves and sign it will become law: if not, he shall return it with his Objections, to that House in which the bill was originated, and that house shall reconsider it. If, after such Reconsideration, two thirds of that House pass the Bill, it shall be sent, together with the objections, to the other House, which shall likewise reconsider the objections. If that House also passes by two thirds of that House, it shall become a Law. In that case the approval of the President is not required. If, any Bill was not returned by the President within ten Days (Sundays excepted) after it was presented to the President, the Bill shall become a Law, as if the President had signed it. The President cannot ‘return’ the bill to the House once the house was adjourned.
Thus, in USA, a Bill passed by the two houses may become law in any of the three ways:
i) by approval of the President, which must be done within ten working days after its presentation.
ii) even without the approval of the President, if the President fails to return the bill within ten working days.
iii) despite such disapproval, if the bill was passed again by ‘two -thirds’ of both Houses, it becomes law immediately.
‘Vetoing’ any Bill:
When the House is in session, if the President, neither approves nor return the Bill, that Bill will become ‘law’, without the approval of the President. If the President ‘returns’ the Bill to the House, within ten working days, it is said the President has “vetoed” the Bill.
Kinds of VETO:
When the President cannot return the Bill to the House due to adjournment of the house, after the ten working days it ceases to be a valid Bill. This is called ‘pocket veto’. Where the President returns a bill passed by the Congress it is President’s Veto. Where the Congress on return of the Bill repasses with two third majority in both the houses of Congress it is ‘Congress veto’.
Indian Constitution: Bill passed by Parliament
Under the Indian Constitution, assent to Bills, passed by Parliament, is specified under Article 111 thus: “When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent there from”. [emphasis supplied]
In the proviso it is stated that the President may, return the Bill (except a Money Bill) as soon as possible, to the Houses with a message requesting that the Houses may reconsider the Bill or any specified provisions thereof. When a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom.
Bills passed by a State Legislatures:
Assent to Bills passed by a State Legislatures specified in Article 200, thus: “When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent there from or that he reserves the Bill for the consideration of the President”.
There are two Provisos. The first proviso is similar, in all aspects, to the proviso to Article 111. The second proviso reads: “Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill”.
A mere reading of the second proviso makes it clear that this proviso would be attracted only where a Bill curtails the powers of the High Court. That is the Governor is bound to reserve any Bill for consideration of President only where such a Bill endangers the position of High Courts. In any other situation the Governor is not bound to reserve any Bill for consideration of the President.
“Bill reserved for consideration” — by the President:
Article 201 of Constitution of India relates to assent of the bill reserved for consideration of the President. “When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent there from”.
“Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration”.
The proviso to Article 201 goes beyond the scope of the second proviso to Article 200. The words ‘where the Bill is not a money Bill’, could mean all kinds of Bills; it cannot be given a restricted meaning, as only Bills that endangers the position of High Courts.
Procedure under 1935 Act and Constitution of India are similar:
Articles 111 and 200 are similar to Section 32 (1) and 75 respectively, to Government of India Act 1935. The GoI Act reads “When a Bill has been passed…….it shall be presented to the Governor General and the Governor General shall in his discretion declare either that he assents …..or that he withholds assent…..or that he reserves ….for signification of His Majesty’s pleasure:”. Both sections contain provisos similar the provisos in Articles 111 and 200. [In Section 75, Governor and Governor-General are used for the phrases, Governor General and His Majesty.]
‘withholding’ is ‘veto’
The word ‘withhold’ means ‘refuse to give’, ‘keep back’, or ‘refrain from granting’. That is ‘veto’ power. Veto is a Latin word which means, negativing bills passed by the legislature.
Under the GoI Act 1935 the Governor or Governor General can withhold assent. That was when India was a British Colony and the sovereignty was vested on the King of England and therefore ‘veto’ was understandable. But under the Constitution of India, sovereignty is vested on the ‘People of India’. The legislatures viz. Parliament and the Assemblies are the representatives of the ‘People of India’ or of the ‘States’ therein. According to the text of Articles 111 and 200, the President or the Governor can withhold any Bill presented for assent. That means they have the power to veto any Bill passed by the legislatures.
Ante thesis of democracy.
‘Parliament’, as per Article 79, ‘shall consist of the President and two Houses to be known as the Council of States and the House of the People’. Legislature of a State, as per Article 168, ‘shall consist of the Governor, and’ one or two Houses, as the case may be. That is, President and the Governor are part and parcel of the Parliament or the State legislature respectively. Therefore, it is ante thesis to say that one part of the legislature can refuse to accept the decision taken by the other part. It is difficult to perceive, how the word ‘withhold’ escaped the attention of the drafting committee. May be, the framers were confident that conventions would take care of those aspects.
Views of the text-book writers
V.N. Shukla’s text book on Constitution of India, contains the following sentences. “In law the Governor can refuse to give his assent to a Bill, i.e., he can veto a Bill. ………….But, in the form of Government set up under the Constitution it would be politically impossible for a Governor to refuse his assent to a Bill, after it has been passed by the Legislature, because he acts in this matter, as in all other public matters, on the advice of the Cabinet, and no Bill could pass through …the Houses and come before the Governor for his assent”.
Wade and Phillips, in the book on Constitutional Law, states that “The veto could be exercised on ministerial advice and no Governor would wish to veto Bills for which it was responsible or one for the passage of which it had afforded facilities through the ministry. Therefore, under the Indian Constitution a Governor cannot veto any Bill passed by the Legislature, because he is also a part of that Legislature. Further they record that though the Crown can veto any Bill passed by Parliament, in England no Bill passed by the Parliament was vetoed. That is, the word ‘withhold,’ found in Articles 111 and 200 do not have any real meaning. They are ‘brutumfulmen’: the Latin phrase means, “meaningless thunderbolt: an empty threat: an ineffectual legal judgment”.
Views of the Supreme Court
In Shamsher Singh Vs State of Punjab [AIR 1974 SC 2192] the Supreme Court has laid “The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his functions conferred on him by or under the constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion”.
In Hoechst Pharmaceuticals Ltd. vs State of Bihar [AIR 1983 S C1019] it was held as follows: “The constitutional position of a Governor is clearly defined. The Governor is made a component part of the Legislature of a State under Art. 168 because every Bill passed by the State Legislation has to be reserved for the assent of the Governor under Art. 200. Under that Article, the Governor can adopt one of the three courses, namely: (1) He may give his assent to it, in which case the Bill becomes a law; or (2) He may except in the case of a ‘Money Bill’ withhold his assent there from, in which cases the Bill falls through unless the procedure indicated in the first proviso is followed i. e. return the Bill to the Assembly for consideration with a message, or (3) He may “on the advice of the Council of Ministers” reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Art. 201. …… A Bill which attracts Art. 254 (2) ………. has necessarily to be reserved for the consideration of the President”.
The above ruling is clear that there is no scope or duty for the Governor ‘to consider’ the Bill which attracts Article 254(2). Where there is no scope for the Governor ‘to consider’ such a Bill, the Governor’s role is only, to forward such a Bill, without any delay, to the President. In the book by Durga Das Basu, it is stated, relying on the judgment of the Supreme Court, that: “Indeed, in matters where reservation is compulsory, the Governor is prohibited from giving his assent”. Where there is a prohibition to assent, there is no scope for ‘consideration’.
In Nebam Rebia vs Deputy Speaker [13th July 2016] the SC has held that “……………………..except in specified matters , executive functions of the Governor whether relating to governance issues or issues pertaining to the Legislature are required to be performed by him on the aid and advice of the Council of Ministers and the Rules framed by the House. No discretion is available to him in these matters since he is bound by the advice given to him by the council of ministers and Article 163 of the Constitution is in respect of matters provided for by or under the constitution not relatable to the council of ministers and the Judiciary”.[emphasis supplied]
to be continued….
