Today, On 26th August, ASG strongly criticized the Supreme Court during the Presidential Reference hearing, saying constitutionality cannot be based on “what judges want it to be,” while opposing fixed timelines for President and Governors to decide on state bills.
New Delhi: The Supreme Court’s five-judge Constitution Bench led by Chief Justice of India B.R. Gavai is on Monday (August 26) continuing the hearing of the Presidential Reference on whether fixed timelines can be imposed on Governors and the President for giving assent to State bills.
The matter is being heard under Article 143 of the Constitution, after the Court’s earlier ruling in April 2025 in the case of State of Tamil Nadu v. Governor.
In that judgment, the Court had mandated timelines for the assent process by the President and Governors to prevent the misuse of “pocket veto.”
Senior Advocate Neeraj Kishan Kaul presented his arguments before the Constitution Bench, explaining the constitutional process for bills requiring presidential assent.
He pointed out that the proviso in this scheme is more of a consultative step, and it cannot be interpreted to mean that the President is bound to withhold assent.
Kaul also referred to Article 167 of the Constitution, highlighting how the duties of constitutional authorities must always be tested against constitutional principles. He explained that judicial review is an important safeguard, but it is subject to limits.
The Chief Justice asked a sharp question to highlight the problem,
“When the house has passed a bill..can the governor sit on it indefinitely? Suppose a bill is passed in 2020.. will the court be powerless if there is no consent even in 2025?”
When the hearing resumed, Senior Advocate Maninder Singh appeared for the State of Rajasthan. He strongly opposed the idea of setting any time frame for Governors to take a decision on Bills.
In a lighter note, Mr. Singh remarked,
“Solicitor General said he will leave some points to others taking the side of the government, but he ended up saying everything.”
To this, Chief Justice of India B.R. Gavai responded,
“You should have taken it up with the S-G.”
Mr. Singh further argued that substantial questions of law must always be referred to a larger Bench under Article 145(3). He pointed out that the earlier decision in the Tamil Nadu Governor case was delivered by a two-judge Bench, and matters of such importance should go before a minimum five-judge Bench.
He submitted that the assent of a Bill is “a full-fledged legislative act” and therefore cannot be confined within any strict time limits. Taking the court through earlier judgments, Mr. Singh reminded that the Supreme Court had already held that the judiciary cannot assume legislative functions.
According to him, by granting deemed assent or by fixing timelines for Governors and the President, the judiciary would in fact be overstepping its powers.
Additional Solicitor General K.M. Nataraj then appeared for Odisha and Uttar Pradesh, also defending the powers of Governors and the President. He asserted that both enjoy “absolute functional autonomy” with wide discretionary powers.
Stressing on the constitutional scheme, Mr. Nataraj said,
“Constitutionality cannot be what the judges want to be.”
He explained that there is no constitutional silence under Article 200.
The words used are clear, and the intention of the Constitution is equally clear, which allows wide discretion to Governors. Mr. Nataraj strongly argued that the judiciary cannot intervene to curb these constitutional powers.
In May, President Droupadi Murmu exercised powers under Article 143(1) to seek clarification from the Supreme Court regarding whether judicial orders could impose timelines on the President’s discretion when dealing with state assembly bills.
Background
The Presidential Reference followed the April 8 Supreme Court ruling which held that Governors cannot indefinitely sit on Bills passed by State legislatures. Though Article 200 does not mention a deadline, the Court said Governors must act within a reasonable time and cannot stall the democratic process.
The Court also held that under Article 201, the President must decide on Bills within three months. If delayed, reasons must be recorded and conveyed to the concerned State.
The exact words of the April 8 judgment were:
“The President is required to take a decision on the Bills within a period of three months from the date on which such reference is received and in case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the concerned State.”
President Murmu later sent 14 questions to the Court, asking whether the judiciary could impose such deadlines and whether the concept of “deemed assent” was constitutionally valid.
While the Centre backs the Reference, arguing that Governors’ powers cannot be curtailed by judicial timelines, both Kerala and Tamil Nadu have asked the Court to dismiss it as not maintainable.
These are the 14 key questions raised by the President:
- “What are the constitutional options before a governor when a bill is presented to him under Article 200 of the Constitution of India?”
- “Is Governor bound by the aid and advice of the council of ministers while exercising all the options available with him when a bill is presented before him under Article 200 of the Constitution of India?”
- “Is the exercise of constitutional discretion by Governor under Article 200 of the Constitution of India justiciable?”
- “Is Article 361 of the Constitution of India an absolute bar to judicially review in relation to the actions of Governor under Article 200 of the Constitution of India?”
- “In the absence of a constitutionally prescribed time limit and the manner of exercise of powers by Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by Governor?”
- “Is the exercise of constitutional discretion by President under Article 201 of the Constitution of India justiciable?”
- “In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by President under Article 201 of the Constitution of India?”
- “In light of the constitutional scheme governing the powers of President, is President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when Governor reserves a bill for President’s assent or otherwise?”
- “Are decisions of Governor and President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the courts to undertake judicial adjudication over the contents of a bill, in any manner, before it becomes law?”
- “Can the exercise of constitutional powers and the orders of/by President/Governor be substituted in any manner under Article 142 of the Constitution of India?”
- “Is a law made by the state legislature a law in force without the assent of Governor granted under Article 200 of the Constitution of India?”
- “In view of the proviso to Article 145 of the Constitution of India, is it not mandatory for any bench of this court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of Constitution and to refer it to a bench of minimum five judges?”
- “… the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?”
- “Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union government and the state governments except by way of a suit under Article 131 of the Constitution of India?”
READ- Questions referred by the President under Article 143 of the Constitution
Case Title: Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India | SPL. REF. No. 1/2025 XVII-A
Read Attachment- Questions referred by the President under Article 143 of the Constitution
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