Today, on 11th September, on Day 11 of the Presidential Reference Row on Assent to Bills, the Supreme Court discussed the Governor’s powers regarding bills. The CJI asked, “No issue if Governor returns a Bill with a message, but can he indefinitely withhold?” Judgment has been reserved.
New Delhi: The Supreme Court’s five-judge Constitution Bench led by Chief Justice of India B.R. Gavai is 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.
A Constitution Bench, led by Chief Justice of India BR Gavai and including Justices Surya Kant, Vikram Nath, PS Narasimha, and Atul S Chandurkar, was addressing a reference made by President Droupadi Murmu under Article 143 of the Constitution.
During today’s hearing, Chief Justice Gavai stated,
“I publicly say that I am a strong believer in the doctrine of separation of powers and thought judicial activism has to be there, it should not turn into judicial [adventurism] but at the same time if one wing of the democracy fails in discharging its duties, would the Court – which is the custodian of Constitution – be powerless and sit idle.”
In response, Solicitor General Tushar Mehta, representing the Central government, asserted that the executive and legislature are also guardians of the Constitution.
He emphasized that issuing a mandamus concerning the legislative discretion of a co-equal constitutional authority, such as the Governor, would breach the principle of separation of powers.
Mehta further argued that the manner in which the Court rules on this case will significantly influence the governance of the country.
He remarked,
“The Constitution will have to be interpreted by the harshest of examples,”
To support his claim regarding the Governor’s authority to withhold assent, Mehta illustrated a scenario where a state legislature might pass a bill declaring that the state would no longer be part of the Union of India. He described such a bill as “shockingly unconstitutional,” justifying the Governor’s denial of assent.
Mehta noted that the trend of states, particularly the Delhi government, approaching the Court is a relatively recent occurrence and that historically, the system has functioned in harmony.
He also questioned the possibility of issuing a writ of mandamus to the Governor and the President, pointing out that individuals might petition for the Governor to refer a bill to the President, or conversely, to prevent the Governor from granting assent.
Mehta argued,
“There may be some MLAs who could file a separate petition to stop the Governor from granting assent… because at the time the bill was passed, the Chief Minister had majority confidence. If your Lordships possess the authority to issue a positive mandamus, you could also dictate that the Governor not refer it to the President, not return it to the house, and not withhold assent. Therefore, this exercise is non-justiciable,”
He then posed the question of whether it would be possible or permissible for the Court to address such situations. Justice Kant responded, noting a distinction between instructing the Governor to make a decision within his discretion and mandating him to act in a specific manner.
However, Mehta reiterated that the core issue remains whether one constitutional organ can issue a mandamus to another co-equal constitutional organ when there is discretionary power involved and no set timeline exists.
In his concluding remarks, Mehta contended that the Constitution Bench could declare the judgment in the Tamil Nadu case as incorrect. He referenced the 2G case to illustrate that while decisions are binding inter partes, the Court retains the authority to revise its interpretation of the law.
Attorney General for India (AG) R. Venkataramani contended that it is not the Court’s responsibility to enhance the interpretation of Article 200.
Venkataramani stated,
“Courts can and must read rights into constitutional provisions, but here it is not a matter of rights. It is a matter of the structural design of the Constitution,”
He further emphasized that the independent judgment of the Governor is an integral part of Article 200’s framework.
He argued,
“So the issue is whether Article 200 should remain free from restraints that were never imposed upon it. How will the Governor work under Article 200? My understanding is that the Governor has to evaluate the course of action independently within the four options given,”
Responding to this, the Chief Justice of India questioned,
“No issue if Governor returns a Bill with a message, but can he indefinitely withhold?”
The bench has reserved its judgment and risen for the day.
Earlier, On August 19, Attorney General for India R. Venkataramani raised concerns regarding the Supreme Court’s ruling from April, questioning whether the Court has the authority to amend the Constitution. He argued that the Court had portrayed the President as merely an “ordinary statutory authority.”
The following day, August 20, the Court noted that if a Governor is permitted to indefinitely withhold assent to bills passed by the State legislature, it would place the elected State government at the mercy of an unelected Governor.
During the hearing on August 21, the Court inquired whether it should remain passive while a Governor delays a bill for years. Similar remarks were made by the Court on August 26.
Earlier, On August 28, the Tamil Nadu government contended that allowing Governors to withhold assent to even money bills would effectively grant them the power of a “super Chief Minister” of the State.
Earlier, On September 2, the Court stated that its forthcoming decision regarding the Presidential reference on Governors’ powers over State legislature bills would remain unaffected by the political affiliations of the current or past governments. It also questioned the implications if the Governor and the President fail to adhere to the timeline established by the Court.
Additionally, On September 3, the governments of Karnataka, West Bengal, and Himachal Pradesh expressed that the Union government was attempting to “abrogate the fulcrum of Constitution” by challenging the Court’s ruling from April 11.
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?”
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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