Nature of Powers under Article 200: Discretionary or Not?
According to Article 200, there are three alternatives with the Governor when a bill is presented for his assent after being passed by the State Legislative Assembly/Council which are, (i) to assent to the Bill or (ii) to withhold assent or (iii) to reserve the Bill for the consideration of the President. As per the first proviso
to this Article, if the Governor withholds the assent, s/he has to return the bill “as soon as possible” for reconsideration by the State Assembly, with a message which may include suggestions. The second proviso provides a Governor the power to not assent but reserve a bill if s/he opines that if the proposed bill becomes law, it may derogate from the powers of the High Courts.
A. Power to withhold the Bill
For the exercise of the three alternatives, Article 200 provides that “… shall be presented to the Governor and the Governor shall declare either that he…”, i.e., it uses the phrase “shall declare”. The first proviso reads as “Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill…”. In the State of Punjab v. Principal Secretary to the Governor of Punjab and Anr (Punjab Governor Case), the Hon’ble Supreme Court took a detailed view of the nature of power under this proviso. It observed that the first proviso follows the second option (withholding of assent) in the substantive part, therefore, the enabling expression “may” has been used in the first proviso. It held that “the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso.”
The substantive part of the Article uses the phrase “shall declare” but the first proviso contains the word “may” which on the preliminary reading, gives the impression that the power to withhold is discretionary. Here, the author argues that the phrase “shall declare” makes it mandatory for the Governor to act promptly as the course of action given in the first proviso which uses the “may” as an enabling expression only.
Further, while interpreting the constitutional provisions, referring to the Constituent Assembly Debates becomes significant. The Constituent Assembly deleted the phrase “in his discretion” from several constitutional provisions that empowered the Governor to exercise his discretion after the Governor was decided to be a nominated authority rather than an elected one. Article 200 was one such provision where the phrase “in his discretion” was used regarding the withholding of the assent, and the same was subsequently deleted. Hence, under Article 200, a Governor needs to act on the aid and advice of the council of ministers while withholding the assent.
B. Reservation of the Bill for President’s Consideration
The power to reserve a bill for the President’s consideration remains one such area where the Governor can exercise his discretion. This position of law has also been acknowledged by the ‘Sarkaria Commission Report on Centre-State Relations’. In the Punjab Governor Case also, the Court observed that reserving a bill is a mandate where the Governor has no option but to reserve it for the consideration of the President.

Structural Gaps in Article 200 & Misuse of Powers by the Governors
A. The phrase “as soon as possible” in the first proviso
The major gap in the structure of Article 200 is the usage of the vague term “as soon as possible” regarding the power to return the bill for reconsideration by the State Assembly. It does not prescribe a particular time limit within which the Governor needs to exercise his powers under this Article. In the absence of a time limit, there is a scope for the misuse of this provision by the Governors to withhold the bills indefinitely causing a constitutional deadlock.
In landmark judgements like Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative , and the recent cases in 2023, Punjab Governor Case and State of Telangana v. Secretary to Her Excellency, The Hon’ble Governor for the State of Telangana & Ors, the Supreme Court has taken the position that the constitutional language is not surplusage, but rather the expression “as soon as possible” used in Article 200 is constitutionally significant, and therefore, the Governor cannot withhold assent to a Bill indefinitely but must return it within a reasonable time.
However, despite such observations by the court from time to time, the Governors continue to withhold the assent for an indefinite period against the aid and advice of the Council of Ministers in several states such as Tamil Nadu, Kerala, Telangana, Punjab, etc. As discussed previously, withholding assent is not a discretionary power of the Governor, and hence not acting on the aid and advice while withholding the assent violates Article 163(1) of the Constitution. The Governor is a nominee of the Central Government, whereas the legislature is duly elected by the common people. Such actions on the part of a Governor veto the functioning of the legislature that represents the will of the people, which has also been highlighted by the Supreme Court.
The author believes that in the light of such unconstitutional delays, guidelines are required to set a particular time limit within which the Governor needs to exercise his power under Article 200 to avoid arbitrary use of the power. However, certain exceptions can be made for unforeseen situations and the bills might also be categorised depending upon the subject matter of the bills while also allowing the Governor an ample amount of time to decide.
B. Reserving a bill for the President’s Consideration
The second major loophole is that Article 200 also does not specify if a Governor can reserve the Bill for the President once it has been readopted by the State Assembly. In the ongoing case of the State of Tamil Nadu v. Governor of Tamil Nadu, the Governor had withheld the assent for ten bills and reserved two bills for the consideration of the President after readoption by the State Assembly. The CJI, while referring to Article 200 of the Constitution, observed that once the Governor withholds the assent, then he cannot reserve it for the President.
Further, various provisions in the Constitution provide for bills based on different subject matters to be reserved for the President’s Consideration. There remains a gap to be misused by the Governors in Article 200 which they, as alleged, might often also use for personal interests. An example of it includes the withholding of Bills where the Chancellor (i.e., the Governor) is being deprived of his power regarding the selection of the Vice-Chancellors in various state universities.
The author argues that this position of law as to what categories of bills can be reserved and under what conditions; and whether any bill after readoption can be reserved for the President’s consideration also needs to be settled to avoid misuse of the discretionary power, via guidelines.

Constitutional Amendment by the Legislature or Guidelines by the Supreme Court?
While the author advocates the drafting of guidelines, the question arises whether the Supreme Court has the required authority to do so.
A. Is the Supreme Court Empowered to lay down the guidelines?
The Supreme Court has used Article 32 in various cases¹ for a much wider purpose, i.e., to lay down general guidelines. The Court derives such power² by reading Article 32 with Articles 141 and 142. These guidelines have the effect of law to fill the vacuum until the legislature steps in to fill in the gap by making the necessary law. Therefore, the Supreme Court has the power to lay down the guidelines to regulate the exercise of powers under Article 200 as well.
B. Guidelines by the Supreme Court: Temporary Solution to the Current Scenario
Some people advocate the introduction of a constitutional amendment to deal with the structural gaps in this Article in depth. The author agrees that an amendment will provide for a permanent solution, but this process is rigorous and time-consuming, requiring a particular majority of the Parliament. Moreover, in the absence of legislation at present, till the time, the legislature comes up with an amendment, the court might lay down the guidelines to address the issue to provide an interim solution, i.e., issue guidelines to ensure time-bound assent to the bills and regarding reserving the bills for the President’s consideration.

Conclusion
Withholding the bills for indefinite periods without providing reasons; or reserving a bill for the President’s consideration when not required, highlights the decisions being shaped by the political/personal gains and jeopardises the interests of the people. The arbitrary exercise of powers regarding assent to the bills by an important constitutional authority cannot be accepted and, laying down the guidelines under Article 200 becomes of paramount importance.
Judicial overreach concerns may arise, and guidelines might not be a permanent solution.But considering the delay that might occur in the process of a constitutional amendment and the increasing misuse of existing loopholes, guidelines by the Supreme Court are important. Guidelines by the Supreme Court would have an effect of law until an amendment is brought and therefore, act as a temporary solution to the current scenario and avoid misuse of power thwarting the law-making process. However, the author believes that the legislature should address this issue and simultaneously, make efforts to bring a constitutional amendment to ensure a permanent solution.