New Delhi | The Supreme Court on Thursday ruled that the governor has discretion while exercising options under Article 200 for referring a bill passed by the state assembly to the president for consideration, or for returning it to the legislature with his comments and is not bound by aid and advice of council of ministers.

In its unanimous verdict, a five-judge Constitution bench headed by Chief Justice B R Gavai, however, held that the governor has no option to withhold a bill simpliciter.

The bench also comprising Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar said, "...the Governor has no option to withhold a Bill simpliciter. Therefore, it is not that the discretion so conferred, allows a situation wherein the Governor could frustrate a Bill in perpetuity."

"The three clear options that he has, is to grant assent, withhold assent and return the Bill to the legislature for reconsideration, or reserve the Bill for consideration of the President. He can exercise his discretion in choosing any of these three options, having given due regard to the aid and advice tendered by the Council of Ministers, and keeping in mind his duty – to protect and defend the Constitution,” the bench said.

Answering the presidential reference in which President Droupadi Murmu has sought opinion of the top court, the bench said it is conscious that a government run within the four corners of a written Constitution, must be responsible.

"Having already held that the Governor does not have powers simpliciter to withhold, we find that the Governor has discretion in the context of referring a Bill for the consideration of the President, or for returning the Bill to the Legislature with his comments.

"We do not think that this interpretation confers any unfettered powers on the Governor. In fact, it does not in any way deviate from the concept of a responsible constitutional government," it said

Referring to the 2016 verdict of a five-judge Constitution bench, the top court said it was in agreement with the view affirmed in the Nabam Rebia case that Article 200 of the Constitution confers discretionary powers on the governor and does not find any "compelling reason" to deviate from this position.

It said that the April 8 verdict in Tamil Nadu case which fixed timelines for the governor and the president to accord assent to bills passed by assembly and prompted the presidential reference, the bench said the view on discretionary powers of governor expressed in it were based on a partial reading of earlier judgments of apex court.

In its 111-page verdict, the bench said that the Constitution does not explicitly state in which provisions discretion is contemplated for the governor to exercise and this court has read discretion into the function of the governor under the Constitution by way of its judgments.

"Our usage of the word 'function' is done so deliberately, in contradistinction to 'power' because a function carries with it, implicitly, a constitutional obligation. Thus, we are of the considered opinion that the Constitution requires the Governor, in exercise of his 'function' use 'discretion' in certain circumstances, given the manner in which our constitutionalism is practised, or worked," it said.

Referring to various provisions in the Constitution on lawmaking, the bench said the act of 'having been reserved', is a function that can be performed by the governor alone, to the exclusion of others and it is neither in the hands of the legislature nor the executive.

"The Governor is the sole authority to reserve a Bill for the consideration of the President under Article 200. For a moment, if it is assumed that there is no discretion, then even if advice is tendered contrary to the written text of the Constitution, the Governor will be bound by such advice.

"If that be so, the Governor and the President ultimately fail in their duty to protect and defend the Constitution because the President's power of assent is hinged on the Governor's power to reserve the Bill for the consideration of the President," the bench said.

It said the role of the president in protecting and defending the Constitution – in binding the Union as a cohesive unit – is crucial and the president will be unable to exercise his functions, until the governor a priori reserves the bill for his assent.

"It is unlikely that the Council of Ministers – without whose support the Bill could not have been passed by the Legislature – will advise the Governor, to return a Bill to the Legislature, or refer it to the President, under Article 200, thus frustrating the operation of numerous provisions of this Constitution, including the President's powers. In such a scenario, it is unfathomable to hold that the Governor is not conferred with discretion, under Article 200,” it said.

The top court said a scenario wherein the council of ministers would tender aid and advice to the effect that the governor must return a bill for reconsideration, or reserve it for the president's assent, is not conceivable. Rather, the converse is inevitable, that is if the governor was bound by the aid and advice of the council of minister, all bills would be granted assent, rendering the option of referring to the president, or returning with comments, nugatory, it said.