Solicitor General Tushar Mehta Today (Aug 20) told the Supreme Court that the Governor’s office carries “sanctity” and cannot be treated as a political shelter. The Constitution gives the Governor independent powers, but the court questioned whether such powers could override elected governments.
NEW DELHI: The Supreme Court today heard detailed arguments on the powers of Governors in India, with Solicitor General (SG) Tushar Mehta stressing that the post carries constitutional sanctity and should not be seen as a shelter for political figures.
During the hearing before a five-judge bench led by Chief Justice of India (CJI) Gavai, the Solicitor General referred to the Constituent Assembly debates.
He explained how the office of the Governor was framed in the Constitution and its purpose.
SG Mehta told the court:
“What is the significance and sanctity attached to the office of the Governor, that we come to know from the constituent assembly debates..it is not an asylum for retired politicians..it has its own sanctity..”
He added that the framers of the Constitution had long discussions on why Governors were needed and why they must hold certain powers.
Quoting from history, he said:
“Section 46 of the Government of India Act, 1915 is pari-materia to Article 155 of the present Constitution..initially the idea was that Governor should also be an elected person, but that idea was rejected by framers of the Constitution…”
At this point, a lively exchange took place in court:
- SG Mehta: “All power is from constitution”
- CJI Gavai: “what if power to withhold the bill comes power to reject”
- SG Mehta: “I will address this question but for later mylord.”
- CJI Gavai: “you say if bill is lacking something.. governor need not excercise powers under the proviso and bypass”
- SG Mehta: “That is extreme ..we are burdened by the facts of TN facts, we like it or not.”
Explaining further, the Solicitor General said:
“If a state bill conflicts with a central law, the Governor is obligated to send it to the President for review.”
To this, Justice Narasimha responded:
“A formal declaration of the decision is required in every instance.”
SG Mehta agreed:
“Correct, if the Governor withholds assent, he must officially declare it.”
The Chief Justice intervened with a sharp question:
“So, under your interpretation, if he withholds assent, the bill is simply finished?”
Justice Narasimha pressed further:
“Are you arguing that once assent is withheld, the bill cannot be returned to the assembly for reconsideration?”
The CJI expressed concern:
“Doesn’t this then grant absolute power to the Governor? This would leave a democratically elected government vulnerable to the Governor’s personal whims.”
The CJI also asked:
“So, are you suggesting that if a Governor believes a bill is deficient, he is not obligated to use the option of sending it back for reconsideration? He can simply bypass that entire step?”
SG Mehta clarified:
“That is not my argument. The scenario you are describing is an extreme situation, which was specifically imagined in the Tamil Nadu case.”
He explained further:
“A bill might contain provisions that are repugnant to central law, violate fundamental rights, or are otherwise deemed undesirable by the Governor.”
Justice Narasimha pointed out a key issue:
“The term ‘withhold’ appears in two parts of the article. If your argument is that ‘withhold’ means the bill is terminated, then that same definition must apply to its first use in the proviso as well. You cannot have two different meanings for the same word in the same article.”
To this, SG Mehta smiled and said:
“i will explain. I can see your lordships smiling”
CJI Gavai responded humorously:
“I always smile. I did not say anything. We can’t say.”
SG Mehta added:
“your smile is an indication”
And the CJI laughed:
“what to do if God has gifted me with a smile..”
Later, the Solicitor General referred to previous court rulings:
“A three-judge bench, led by Chief Justice DY Chandrachud, made a ruling in the Punjab Governor case. This ruling interpreted the word ‘withhold’ in a way that is interconnected with the power to return a bill (the proviso). However, this decision was made without giving due consideration to the precedents set by larger, more authoritative benches of five and seven judges.”
He added another important note:
“Please note this as a separate point: when a Governor refers a bill to the President under Article 201, the Constitution itself provides a specific time limit for the process.”
Justice Nath raised a doubt:
“So, does this mean the process of the President considering and returning the bill could continue indefinitely, for as long as the President wishes?”
SG Mehta replied:
“My interpretation is thi, the Governor’s power is exercised in many contexts—executive, legislative, and quasi-judicial. Nowhere, either in the text or the context of the Constitution, can we conclude that ‘withhold assent’ means a temporary pause until the bill is reconsidered. If the framers had intended to link these powers, they would have done two things: first, they would have qualified the word ‘withhold’ by connecting it to the first proviso (the return power), and second, the first proviso itself would have stated that a withheld bill must be reconsidered. Since they did neither, the power to withhold assent must be understood as an independent and final power, separate from the power to return a bill for reconsideration.”
He summed up firmly:
“If the Governor intends to withhold assent, the bill is effectively terminated. This decision must be made immediately; if the Governor instead opts to return the bill to the legislature, he forfeits the option to withhold assent thereafter.”
Justice Nath then asked:
“What is the precise constitutional meaning of ‘withhold’? Why was this specific term chosen? Were there any debates in the Constituent Assembly about this word? They could have used simpler terms like ‘assent’ or ‘do not assent’.”
SG Mehta responded:
“The term ‘withhold’ was directly adopted from the Government of India Act, 1919, and the Government of India Act, 1935. There is no record of a debate on it in the Constituent Assembly. These options—assent, withhold, return, reserve—are all independent powers. We must interpret them without focusing only on recent extreme cases where assent was withheld without proper thought. For example, a Governor might withhold assent if a bill concerns a matter completely beyond the state’s authority, like atomic energy.”
The CJI pointed out another possibility:
“In such a case, the Governor could also send the bill to the President.”
But SG clarified:
“That option is for repugnancy with central law. I am referring to a bill that is completely outside the legislative domain of the state altogether.”
Explaining the broader context, SG Mehta said:
“There are political parties in the state which is similar to same party as in the centre.. we are not saying governor can kill the bill. Political parties will keep changing. I am on the constitutional interpretation of the term ‘withhold’.”
CJI Gavai agreed:
“We are also not concerned who is in power, we are on governor power.”
Mehta continued:
“Mylord there are situation where governor has to withhold e.g. where Bill removes reservation, or one State legislature preventing another State residents from entering the State, e,g, one state hospital was flooded during COVID, barricades were created to withhold people from coming to the State, or state legislature mandating use of one language or legislature excluding class of people from voting on sex, race, etc”
CJI responded:
“I had heard that case, I know.”
He added:
“Is this power to withold is not allowed in other cases.”
To this SG replied:
“In case of High court, governor is bound to send to consent of president in others he is not.”
The CJI then raised another question:
“However, if the Governor does not send the bill back to the legislature, and the house does not pass it again within six months, the bill will lapse.”
But SG Mehta clarified:
“If the Governor returns a bill, but is then told he cannot exercise any independent judgment afterward, what exactly is he supposed to do? His role is not merely to be a postman. He represents the authority of the Union. A figure who is not directly elected is not constitutionally inferior to one who is; their roles are simply different.”
He emphasized once more:
“Mylord governor is just not a postman. He is appointed by president as agent of the union. He has a role to play as appointed by the president and president is an elected head.”
The SG concluded with a strong remark:
“two judge bench in TN replies on three judge in Punjab judgment which talks view that withhold has to be read with first proviso which is erroneous and is in ignorance of other judgments.”
The hearing ended with the bench announcing that it will resume again at 2 PM.
YESTERDAY’S HEARING IN APEX COURT
Governor vs President Powers Clash in Supreme Court | Union Warns of “Constitutional Disorder” Over Bill Assent Deadlines
The Supreme Court continued hearing on Day 2 (Aug 19) of the Presidential Reference regarding the powers of Governors and the President in giving assent to state bills.
The courtroom witnessed intense exchanges as top lawyers debated whether the Court can prescribe strict timelines for granting assent, or if such judicial directions would create a “constitutional disorder.”
Senior Advocates K.K. Venugopal and Abhishek Manu Singhvi argued that the Reference itself was not legally maintainable, warning that it attempted to reopen issues already settled in the Tamil Nadu Governor case.
On the other hand, Attorney General R. Venkataramani and Solicitor General Tushar Mehta said that the President’s query was advisory, not appellate, and that the Supreme Court had the power under Article 143 to clarify doubts on constitutional questions.
They were supported by senior lawyers Harish Salve, N.K. Kaul, and Maninder Singh.
Venugopal: Reference Bypasses Review
Venugopal began by stating that the Reference, in “substance and effect,” was simply a review filed by the Union Government and therefore not maintainable. He stressed that eleven out of fourteen questions raised had already been answered in the Tamil Nadu Governor judgement.
He referred to Article 200, noting that it does not provide any strict time limit for Governors to act. He cited earlier rulings, including the Telangana Governor case (2023), the Punjab Governor case (2023) and the Tamil Nadu case, which interpreted the phrase “as soon as possible.” He pointed out that only the Tamil Nadu ruling went so far as to impose fixed deadlines.
When Chief Justice of India (CJI) pressed him on whether those earlier benches had the required five judges under Article 145(3), Venugopal admitted they were benches of only two and three judges.
The CJI asked,
“So a five-judge Bench is bound by two judges?”
to which Venugopal replied,
“Unless you overrule it.”
He also reminded the Bench that while judgments under Article 141 are binding law, an opinion under Article 143 does not carry the same authority.
Singhvi: ‘This is an appeal, however nicely you couch it’
Appearing for Tamil Nadu, Singhvi argued that neither Article 143 nor an advisory opinion could replace review or curative powers as recognised in Rupa Hurra v Ashok Hurra (2002). He warned that Tamil Nadu was the only state to get relief from the Court on this issue and no intra-court appeal could be allowed.
He stated that all questions in the Reference were already answered in the Tamil Nadu judgement, except questions 11, 12 and 14, which deal with unassented state laws, Article 145(3), and Union-State disputes under Article 131.
Quoting from the Cauvery Water Dispute (1991), he cautioned:
“Reopening a settled matter would cause a very serious subversion of Supreme Court integrity.”
He added,
“This is an appeal, however nicely you couch it….the entire concept of stare decisis will be completely subverted.”
Justice Narasimha intervened, saying,
“The adjudicatory decision stands on a completely different footing than advisory.”
Singhvi replied that while theoretically different, in practice the two overlapped, since once an advisory opinion is given, it is followed.
Justice Nath remarked,
“This is not right, you are presuming we will nullify the two-judge judgement.”
CJI Gavai clarified,
“We are expressing view of law and not the decision in Tamil Nadu.”
Reiterating, Singhvi said Article 143 does not give appellate powers, and warned:
“If your Lordships can find a way to not disturb the Tamil Nadu decision, I have no problem.”
Justice Narasimha added that even if relied on later, its binding nature could still be questioned.
Venkataramani: Tamil Nadu judgement rewrote Constitution
Attorney General R. Venkataramani attacked the Tamil Nadu judgement, calling it a “departure” from precedent. He argued that the Court entered the legislative field.
“The Court virtually said ‘leave it to us’, we will solve the issues and provide answers. That is not the constitutional scheme,”
-he said.
He stressed that Articles 200 and 201 form part of the Constitution’s basic structure, meant to check non-compliant laws. By imposing timelines and limiting Governor’s discretion, the judgement “rewrote” the Constitution.
He asked,
“Can the Court, under the guise of interpretation, take pen and paper and amend the Constitution?”
He argued the ruling
“virtually robbed the Governor and President of their application of mind.”
Criticising the use of Article 142, he said,
“Inherent powers cannot be exercised to build a new edifice where none exists.”
On the Court’s action of granting deemed assent to Tamil Nadu bills, he remarked:
“The Supreme Court cannot step into the shoes of the authority.”
Mehta: President seeking clarity, not appeal
Solicitor General Tushar Mehta insisted that the Reference was not an appeal but a genuine constitutional query.
“The President is seeking clarity on what to do when faced with a constitutional problem. What should the President or Governor do?”
-he asked.
He noted that even past judgements could be reconsidered in a reference.
“If this Court holds that the Tamil Nadu judgement is not correct law, that is not appellate power… it is an exercise of inherent powers,”
-he said.
Justice Kant reminded that the proceedings remained strictly advisory.
Mehta said the Tamil Nadu ruling had caused confusion:
“Am I bound by the three-month deadline? By directions under Article 200? Or should every State now rush to this Court?”
He traced Articles 111, 200 and 201 back to the Government of India Acts of 1915 and 1935, explaining that timelines were deliberately dropped by the Constituent Assembly.
“The idea was never to bind the highest constitutional functionaries. They are expected to discharge duties in accordance with law,”
-he argued.
On the special role of the President, Mehta said they swore to defend the Constitution, not just uphold it, and this could not be curtailed by judicial deadlines.
Other Senior Advocates
Senior Advocate N.K. Kaul pointed to the 2G case, noting that views on law can always be modified.
Harish Salve argued that under Article 141, Supreme Court judgements bind all courts but not the Supreme Court itself.
He warned against “putting the cart before the horse” when the Bench had not even answered the constitutional questions yet.
Maninder Singh added that the Court could still address the issues during the reference without technically overruling anything.
Read/Download Supreme Court’s Order of Day 2 (Aug 19):
Background of the Case
On 13 May 2025, President Droupadi Murmu invoked the Supreme Court’s advisory jurisdiction under Article 143 of the Indian Constitution. This article empowers the President of India to seek the Supreme Court’s opinion on matters of public importance involving legal or factual questions.
The reference includes 14 questions concerning the constitutional powers of the Governor and the President under Articles 200 and 201, particularly in relation to granting or withholding assent to state legislation.
This significant constitutional development comes after the Supreme Court’s landmark ruling in State of Tamil Nadu v. Governor of Tamil Nadu (2025).
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?”
Tamil Nadu Governor Case: A Constitutional Milestone
In 2023, the Tamil Nadu government approached the Supreme Court to challenge the indefinite delay by Governor R.N. Ravi in giving assent to 10 bills passed by the State Assembly. After repeated non-communication, the assembly re-passed the bills, which were later reserved for Presidential consideration.
On 8 April 2025, the Supreme Court of India ruled that the Governor’s delay was “illegal” and “erroneous.”
The Court interpreted Article 200 and clarified that the Governor’s powers are restricted to:
- Granting assent,
- Withholding assent,
- Reserving the bill for the President’s consideration.
Importantly, the Court emphasized that once a bill is re-enacted by the state legislature, the Governor must grant assent, and cannot exercise an absolute veto.
Judicial Timelines and Accountability Introduced
The judgment established strict timelines for the Governor and the President:
- Within 1 month: If withholding or reserving a bill on the advice of the Council of Ministers.
- Within 3 months: If done against ministerial advice.
- Within 1 month: If the State Assembly re-passes the bill.
A 3-month deadline was also laid down for the President’s decision under Article 201. Any violation of these timelines is now subject to judicial review, enhancing transparency and accountability in the constitutional process.
The Court, invoking Article 142, went a step further to deem assent on the 10 pending bills, effectively nullifying the President’s prior assent to one of them. While the ruling was hailed for upholding legislative efficiency, critics raised concerns over a potential breach of the doctrine of separation of powers.
Presidential Reference Under Article 143: Seeking Clarity
In the wake of this ruling, President Murmu sent a formal reference to the Chief Justice of India, raising constitutional questions such as:
- Is judicial intervention valid when Articles 200 and 201 don’t prescribe timelines?
- Can the Governor or the President’s discretion under these articles be subject to judicial review?
- Does the Supreme Court have the authority to “deem assent”?
This marks a significant step in clarifying the scope of constitutional discretion and the role of judicial oversight in executive functions.
CASE TITLE:
Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India
SPL.REF. No. 1/2025 XVII-A
READ- Questions referred by the President under Article 143 of the Constitution
READ- Judgement of the Supreme Court in The State of Tamil Nadu v Governor of Tamil Nadu
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