Today, on 21st August, in the Presidential Reference Row, the Supreme Court, on Day 4, asked: “When a Governor sits on Bills for four years, what happens to the democratic set-up of the government and the will of the legislature’s two-thirds majority?”
New Delhi: The Supreme Court heard the Presidential Reference concerning the power of Governors and the President to grant assent to bills and whether courts can step into this constitutional space.
The bench,led by CJI Gavai, which included Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar, heard Mehta reference various Supreme Court rulings concerning the powers of governors as the hearing entered its third day.
CJI Gavai-led bench discussed the Centre’s objections on having a “time-bound programme” for assent, deemed assent and related issues.
CJI Gavai pointed out,
“Consider the situation in which the Governor merely sits on Bills for four years. Then what happens to the democratic set-up of the government, what happens to the will of the two-third of the majority of the legislature of a particular State?”
In response, Solicitor General Tushar Mehta questioned,
“Can inaction on the part of the judiciary, compel the President to take action in a pending case?”
He stressed that,
“It cannot be that every problem has a solution only at the doors of this court, and political and democratic solutions are not solutions.”
The CJI, however, clarified that the Court was not dealing with abstract matters and said,
We are not acting hypothetically, we have had petitions from multiple States.”
CJI Gavai questioned,
“If particular function is entrusted to the Hon’ble Governor and if for years together he withholds it, will that also be beyond that scope of judicial review of this Court when this Court has set aside the constitutional amendment itself which had taken power of judicial review that ‘no amendment should be called into question by this Court’? It has been found to be hitting at the Basic Structure of Constitution. With those judgments, can we say that howsoever highest the constitutional authority may be and if it does not act, still the Court would be powerless?”
In defense, Solicitor General Tushar Mehta, representing the Central government, argued that such issues are best resolved through the political process.
He stated,
“There are certain problems which are not solvable by judiciary. There are to be solved by political democratic process. When such a thing happens, we have to expect and accept that there are constitutional functionaries who are responsible and responsive because they are answerable to people every day and at least five years.”
CJI Gavai countered that the Governor is not accountable to anyone. Mehta responded by saying that the Governor occupies a vulnerable position, as the Chief Minister can appeal to the Prime Minister or the President.
He added,
“Such things do happen. When Governor sits over it, the political process takes over. Governor can be called back. Some other person can go as Governor. Why cannot we trust other constitutional functionaries?”
The Supreme Court is currently considering a Presidential reference that challenges its earlier ruling from April, which set timelines for the President and the Governor to act on bills.
This earlier decision held that the Governor’s inaction under Article 200 (concerning assent to bills passed by the State Legislature) is subject to judicial review.
Earlier, On Tuesday, the Court examined the maintainability of the reference. During the proceedings, Attorney General for India R. Venkataramani challenged the Supreme Court’s ruling from April, questioning whether the Court has the authority to alter the Constitution. He argued that the verdict treated the President as merely an “ordinary statutory authority.”
Earlier, On Wednesday, the Court expressed concern that allowing a Governor to indefinitely withhold assent to bills passed by the State legislature would leave the elected State government vulnerable to the whims of an unelected Governor.
This remark followed Solicitor General Tushar Mehta’s assertion that the Governor, under Article 200 of the Constitution, can withhold assent to a bill, causing it to “fall through” without an option to return it to the legislature.
Chief Justice Gavai commented,
“Would we not be giving total powers to the Governor to sit in over appeal? The government elected with the majority will be at the whims and fancies of the Governor,”
Today, Solicitor General Mehta argued that the Court should not impose a timeline for Governors and the President to clear bills.
He questioned if one constitutional authority could impose a time limit on another, stating,
“Wherever the Constitution has thought it appropriate, the timeline is provided.”
Mehta criticized the Court’s reliance on the Punchi and Sarkaria Commissions for imposing a timeline and asserted that the Court cannot modify or supplement statutory language.
He referenced the case of P. Ramachandra Rao v. State of Karnataka, where the Supreme Court ruled that time limits for criminal trials could not be mandated.
He explained,
“In case of decisions of the nature which Governor or President takes, they are polycentric decisions. They are not ticking the boxes that ‘yes, complied with…’. They may choose to call the Chief Minister, they may take some other consultative process to ensure there is no impasse. There may be several reasons for delay,”
SG Tushar Mehta added,
“Every problem in this country may not have a solution here (in court),”
Justice Narasimha pointed out that if the Court is unable to set a time limit, there should still be a mechanism to ensure the process functions effectively.
“The question is, isn’t there an outer limit at all? Can the Constitutional interpretation be left to a vacuum… Though you can’t specify a time limit, at the same time, there must be some way in which the process works out. Can it be a situation where not acting on a bill which is sent to the Governor itself is a full stop, no further? Is it?”
SG Mehta acknowledged the Court’s frustration over the lack of a timeframe but maintained that it cannot assume the authority to impose one. He noted that the Court does not frequently encounter cases of inaction in this context.
Mehta further argued,
“The remedy lies with the Parliament… The practical answer is the political answer. Suppose a particular Governor is sitting on a bill, there are political solutions. Solutions are taking place, and it is not everywhere that the State is advised to rush to the Supreme Court. The Chief Minister goes and requests the Prime Minister. The Chief Minister goes and meets the President… such impasse is solved,”
He urged the Court to recognize that these issues have persisted for decades and emphasized that political statesmanship often plays a crucial role in resolving such impasses.
He stated,
“Therefore, while I acknowledge this might be an uncomfortable argument, I am asserting that not every issue in this country can be resolved here. Some challenges require solutions that must be sought within the system,”
Mehta further emphasized that justification cannot grant jurisdiction.
He continued,
“The separation of powers, I am saying without mincing words, must be a two-way street,”
Solicitor General Tushar Mehta noted that CJI Gavai remarked that if a wrong exists, a remedy must also be available. Mehta responded by saying that not all issues in the country can find resolution in the courts.
CJI Gavai questioned,
“As the custodians of the Constitution… this Court is a custodian of the Constitution. If a constitutional authority, assigned specific functions, chooses not to perform those duties without valid reasons, should we accept that the Constitutional Courts are powerless?”
Mehta reiterated that each branch serves as a guardian of the Constitution and that the Court cannot engage in legislative actions. CJI Gavai then inquired whether the Court should not explore constitutional debates to discern the intent behind the enacted provisions.
When Justice Kant stated that the power of interpretation resides with the Court, Mehta responded by asserting that the Court cannot impose a timeline.
He remarked,
“Adding words or amending the constitution itself is something else,”
Justice Narasimha pointed out that taking an extreme view cannot serve as a reason to argue that the Court should take no view at all.
The Apex Court remarked,
“As guardians of the Constitution, this Court serves as its custodian. If a constitutional authority entrusted with specific duties refuses to fulfill those responsibilities without valid justification, can Constitutional Courts truly remain powerless and say, no, we are powerless?”
Mehta argued that the Court cannot dictate how a constitutional authority should exercise its power. He contended that the actions of the President and Governor regarding bills are non-justiciable, citing precedents that affirm the non-justiciability of assent given to bills.
At this point, Chief Justice Gavai highlighted the issue of the Governor withholding assent indefinitely.
Justice Kant added,
“Here the question is of the decision-making process and not the decision taken ultimately, that process can be examined by the Court within the ambit of judicial review.”
Mehta expressed concern that this could lead to multiple challenges regarding the powers of the Governor and President under Articles 200 and 201 of the Constitution. He argued that such matters might be best resolved in the political arena.
Justice Narasimha remarked that this could lead to a constitutional impasse. Mehta reiterated that not every stalemate could find resolution through the judiciary.
Mehta stated,
“The Court would be holding its hands that it is non-justiciable,”
CJI then remarked,
“Under Article 200, if we hold that the Governor has an unlimited power to withhold for time immemorial, what is the safeguard for a duly elected legislature? Suppose a legislature, elected by a 2/3rd majority, unanimously passes a bill. If the Governor does not exercise the proviso, it effectively renders the legislature completely defunct… The Act is always subject to challenge…”
CJI Gavai discussed the functioning of the separation of powers, emphasizing that it assumes every issue will ultimately find resolution through the courts, suggesting that political or democratic solutions are inadequate.
Indicating that the Court is addressing real, pressing matters rather than hypothetical scenarios. He noted,
“We are having petitions from at least four States,”
Regarding the President’s inquiry about the Court’s authority to adjudicate on the contents of a bill, CJI Gavai remarked that there might not be any disagreement among the parties or counsel on this point.
He added,
“We will have to leave all other work and only devout ourselves to giving advice to the Hon’ble President.”
On the topic of deemed assent in the Tamil Nadu case, Mehta questioned whether the Court could replace another constitutional authority.
He argued,
“Deemed assent would mean your lordships substituted your lordships as the Governor and your lordships declared that the assent is deemed to have been granted.”
He also stated that Article 142 of the Constitution cannot be employed to amend the Constitution.
When asked if the Constitution limits the Supreme Court’s jurisdiction to resolve disputes between the Union and State Governments solely through a suit under Article 131, CJI Gavai acknowledged the challenges faced in Article 131 suits, noting the difficulties in framing issues, particularly in the West Bengal case, while highlighting the numerous petitions received under Article 32.
Senior Advocate Kapil Sibal suggested that the question should not be addressed “in this fashion.”
CJI Gavai agreed that it could be postponed for later consideration.
Mehta insisted that the question was framed by the President, declaring, “I cannot withdraw.”
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- Judgement of the Supreme Court in The State of Tamil Nadu v Governor of Tamil Nadu
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