Today, On 28th August, In the ongoing Presidential Reference before the Supreme Court, Centre told the Supreme Court that a Governor does not represent the Union of India but only the President, clarifying the constitutional position on gubernatorial authority during a key hearing on the scope of judicial review and Article 361.
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.
Today, During a Supreme Court hearing, the Centre clarified that the,
“Governor does not represent the Union of India.”
During the hearing on the Presidential Reference regarding the role of Governors in assenting to State bills, Solicitor General Tushar Mehta told the Supreme Court that two key issues needed clarity.
He said,
“I had to take instructions on two questions … Whether writ will lie on behalf of State government and then on the ambit of Article 361. The president says she would require assistance of your Lordships.”
He stressed that these questions cannot be left open.
The Solicitor General submitted,
“This has to be answered else the questions will keep arising,”
Explaining further, he said,
“Lordships never issues a mandamus to the Governor…. Court cannot say ‘Mr. President decide in 3 months, and if not, give reasons.’ And then telling the State that ‘if not, come to us.’ Article 32 does not lie, it is not justiciable and mandamus cannot be issued.”
He also clarified the role of State governments, stating,
“State government is repository of functions to protect the fundamental right of citizens. It cannot file a Article 32 plea by itself.”
The Solicitor General cited a past case, explaining that the Karnataka government had approached the Supreme Court under Article 32, but the court did not entertain it.
He pointed out that,
“Article 32 is to safeguard fundamental rights.. this court held that state cannot approach under Article 32.”
To illustrate his point, he asked,
“Suppose there is a law and order situation in some state, and the local police are unable to contain it. Can the central govt file a plea seeking deployment of paramilitary forces… To me, the answer is a No.”
He then raised another question,
“If assent is granted, can someone challenge the same and can direct that assent be taken away?”
In response, the Chief Justice said,
“But the validity of the law can be challenged. The question is when the governor sits over a bill passed by the legislature and keeps sitting over it. The word used was as soon as possible.. earlier it was six weeks and later made as soon as possible.. one of the members in the drafting committee stated as soon as possible it was immediately.. if this was the frame of constitution makers can we ignore that ?”
The Solicitor General maintained that,
“This court has held that this court will not issue mandamus to frame a law or implement a law. Article 361 becomes nugatory if this court accepts the power of the state government to file a writ.”
At this point, Justice Narasimha asked,
“can such a direction be issued under Article 141.. or there is no forum at all for this ?”
Chief Justice Gavai observed,
“Governor is the vital link between the state government and the central government. That’s what the framers had also envisioned.”
Responding, Mr. Mehta explained,
“We are on a constitutional scheme. What is envisaged is that there will be a person who will look at national policy vis-à-vis state policy. If this logic is used even CAG is appointed by the president..”
He added that,
“A multitude of considerations go into deciding whether to assent to a bill or not. Like if assembly passes a bill that only one language be used and no other.. it may be under list 2, but waiting for a year in such situations may prove beneficial.”
He reminded the bench of earlier rulings, noting that judicial pronouncements interpreting Article 361 were delivered in situations where the action of the President or Governor was not linked to Article 111 or Article 200/201 of the Constitution.
He explained that the Supreme Court had held that the government could respond on behalf of the Governor, and in practice, the secretary to the Governor was usually made a party so that the Court could call for the records from the Governor’s office to verify the material and procedure.
He concluded that neither Article 32 nor Article 226 was maintainable by the state or by a private individual in such cases since the issue was not justiciable.
When submissions began from those opposing the Presidential Reference, Senior Advocate Abhishek Manu Singhvi argued on Article 200. He said that the Governor and the President were only titular heads with no discretion in executive decision-making except in a very few matters.
He pointed out that strong material showed the Governor was bound by the Council of Ministers in each of the three options under Article 200, whether returning or referring a Bill to the President.
On the broader question of the Governor’s position, the Solicitor General maintained that the Governor did not represent the Union of India but represented the President.
At this point, CJI asked,
“How do you say he does not represent the Government of India. The government’s executive authority vests in the President.”
The Solicitor General reiterated that the Governor was the head of the State Executive as a representative of the President.
Justice Gavai referred to the history of the Constitution, observing that the Constituent Assembly debates described the Governor as a vital link between the Centre and the State. He recalled that during the debates on whether a Governor should exist, the resolution was finally adopted that the Governor must continue as this vital link between the Centre and the States.
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
Click Here to Read Our Reports on Assent To Bills
FOLLOW US ON YOUTUBE FOR MORE LEGAL UPDATES
