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N.KAVITHA RAMESHWAR ADVOCATE, MADRAS HIGH COURT         WHY THE GOVERNOR’S SILENCE IS NOT GOLDEN Be you ever so high, law is above you. This oft-repeated principle originally spoken by Thomas

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N.KAVITHA RAMESHWAR

ADVOCATE, MADRAS HIGH COURT

 

WHY THE GOVERNOR’S SILENCE IS NOT GOLDEN

Be you ever so high, law is above you. This oft-repeated principle originally spoken by Thomas Fuller, a 17th century English historian, essentially embodies the concept of rule of law. It is this cardinal principle on which stands our  constitutional edifice and which has been held by the Supreme Court to be part of the basic structure of the Constitution along with the supremacy of the Constitution, which are both inviolable and immutable. This is why constitutional functionaries placed even at the highest echelons of the system are bound by the rule of law and have to function within the four corners of the provisions of the Constitution of India.

On September 13, 2021, The Tamil Nadu Legislative Assembly passed the Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 (NEET Bill, 2021) which seeks permanent exemption of application of NEET to the admission to medical undergraduate courses in the State and to provide for admission on the basis of marks obtained in Class XII through the ‘normalisation method’ as was being done before 2017. The Bill has been sent to the Governor of the State and has been pending action by the Governor since then.

Understanding the constitutional perspective of the issue would sharply bring into focus the specific provision of Article 200 of the Constitution which envisages the powers of the Governor with respect to laws passed by the State Legislature. Under Article 200, when a State Legislature passes a bill, it is presented to the Governor of the State to (i) declare his assent to the Bill, (ii) withhold his assent to the Bill, or (iii) reserve it for the consideration of the President. In an ordinary case, the Proviso to Article 200 mentions the circumstances in which the Governor may after considering the bill withhold assent for the bill and remand it back to the State Legislature which may thereafter reconsider and re-send the bill to the Governor on which event, he may not withhold assent thereafter.

In cases where a law passed by the State Legislature falls within the fields of legislation as mentioned under the Concurrent List, Article 254 (2) comes into play.  Article 254 is an illustration of a scenario in which the Governor must necessarily reserve for consideration of the President a state law which is repugnant to the provisions of parliamentary legislation with respect to any of the matters covered under the Concurrent List as such repugnancy can be cured only by the assent of the President. It may be apposite to say that the role of the Governor would, in such a circumstance, be constitutionally circumscribed to sending the bill passed by the state legislature for the consideration of the President.

This leads us to the pertinent question in the present scenario as to the time frame within which the Governor may act under Article 200 of the Constitution. The phraseology employed in Article 200 is- “as soon as possible”, which would by necessary implication, mean a reasonable period. The reasonableness of such a period would once again depend upon whether the Bill before the Governor is one of declaring or withholding his own assent for a bill passed by the state legislature or whether he would like to reserve the bill for consideration of the President on his own discretion or by virtue of a specific provision whereby he would have to necessarily reserve the bill for consideration of the President. In a case where the Governor should have to apply his own consideration on whether or not he assents to a bill, the Governor would have more discretion to exercise his power whereas when the circumstance demands by way of the legal provisions only for reserving the bill for the consideration of the President, there cannot be undue delay in such an exercise. In the present case, The NEET Bill having been passed in September 2021 with unanimous political fervour and palpable public clamour, with repeated news reports on the pendency of the Bill with the Governor, one would expect the constitutional authority to act swiftly in accordance with the provisions of the Constitution, keeping in view that the State Legislature is the embodiment of the collective popular will and that the issue cannot brook delay.

There is no gainsaying the fact that once the bill has been reserved for the consideration of the President, he would independently apply his consideration and exercise his discretion on declaring assent to the bill or otherwise. While legal opinion is divided on whether or not the State Legislature has the legal competence to pass the NEET Bill, this whole exercise is reminiscent of the abolition of the Common Entrance Test for admission to professional courses in Tamil Nadu in 2006 by a State legislation which had obtained the assent of the President. In the case of Minor S. Aswin Kumar v. State of Tamil Nadu, the Madras High Court has by its judgement in April 2007 held that since the State had come up with the ‘normalisation method’ which ensure a level playing field for students of different boards of education for  admission into medical courses, the state had the legal legislative competence to abolish the common entrance test and that the exercise of the state legislative power under Entry 25 of the Concurrent list which includes medical education, subject to Entry 66 of the Union list, does not abrogate against the ‘determination of standards in higher education’ as specified in the Union List under Entry 66. In effect the Court had held that the method of admission to undergraduate medical courses, whether by way of an entrance test or by way of the marks obtained by the students in Class XII, would not in any way be prejudicial to the ‘determination of standards’ of higher education and that as such, the state legislature had the competence to legislate under Entry 25 of the Concurrent List. This judgement of the Madras High Court has also been confirmed by the Supreme Court in 2011 and the method of normalisation continues to be applied in the state. While the State has chartered out its plans, it remains to be seen if its political dream will reach the logical end, the constitutional way.

 

Key highlights of Constitutional provisions-

  • The Constitution provides for three Lists – fields/subjects of legislations- which are Union List, State List and Concurrent List.
  • Concurrent List contains subjects on which both Parliament as well as State Legislatures can legislate.
  • Entry 66 of the Union List-‘Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions’.
  • Entry 25 of Concurrent List-‘Education, including technical education, medical education and universities, subject of the provisions of Entry 63, 64,65 and 66 of Union List..’
  • Under Article 254, where there is a conflict between a State law and Parliamentary law in relation to a subject under the Concurrent List, the Parliamentary legislation will prevail.
  • This is subject to the exception under Article 254 (2) that the State law shall prevail in the State if the law receives the assent of the President.
  • Every law made by the State Legislative Assembly is sent to the Governor for his assent and in cases of the State law being in conflict with a Parliamentary law, the Governor must reserve it for the consideration of the President.
  • The Governor must do this “as soon as possible” under Article 200.
  • Since NEET has been made compulsory by Parliamentary law, the TN Act seeking to exempt application of NEET in the State, must receive the assent of the President to prevail in the State of TN.

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