(i) The advice negatively impacts the federal structure of the country;
(ii) The subjective satisfaction of the Governor, at the initial stage and later of the President, is immune from judicial challenge; and
(iii) The plenary powers of the State Legislatures can be thwarted by executive fiat, through the Governor or the President, by unduly delaying implementation of the will of the people.
Under our Constitution, the State Legislature has plenary powers to legislate on subjects which are exclusively in its domain, as set out in List-II of the Seventh Schedule. If a Bill is passed by the State Legislature in respect of a subject matter within its exclusive domain, the Governor or the President withholding such a Bill is anathema to the country’s federal structure. Take a Bill where the State Legislature seeks to amend a statute by taking away the Governor’s power to appoint Vice Chancellors to universities. Since that power is conferred by the Legislature, it has the plenary power to take away that right. The Governor cannot have the discretion to withhold assent to such a Bill. Yet, the advice on the Presidential Reference allows the Governor to do so. The executive power of the Governor cannot, as a matter of law, thwart the people’s will reflected in state legislation. In fact, the first proviso to Article 200 stipulates that the Governor may, as soon as possible, after a Bill is presented to him, either assent to the Bill or suggest amendments thereto; and if the House or Houses reconsider the Bill and present it again to the Governor with or without amendments, the Governor cannot withhold assent therefrom. There is no constitutional space for the Courts to advise otherwise. However, the Court, in its advice to the President, seems to have held that even if the Legislature returns the Bill, the Governor can still withhold assent, or reserve it for the President’s consideration, contrary to the first proviso to Article 200 referred above. This is yet another blow to the country’s federal structure.
