The Supreme Court Today (Aug 20) asked if harmony between governors and state governments, as imagined by Constitution makers, is truly working today. Heated exchanges between CJI, Solicitor General, and senior lawyers brought humour and sharp constitutional debates.
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NEW DELHI: The Supreme Court on Wednesday turned the spotlight on one of the most sensitive questions in India’s federal structure – whether the balance between governors and state governments is functioning in the spirit envisioned by the framers of the Constitution.
A five-judge Constitution Bench headed by Chief Justice BR Gavai raised this issue while hearing the Presidential Reference on the timelines for governors and the president to act on bills passed by state legislatures.
Chief Justice Gavai reminded the court of the Constituent Assembly’s vision:
“You are entitled to read the Constituent Assembly debates, but see whether the expectations they had were met or not. They envisioned two power centres – one, the chief minister and, two, the governor.”
The bench, also including Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar, heard detailed arguments from Solicitor General Tushar Mehta and senior advocates.
At one point, in lighter exchanges, CJI observed,
“Mondays to Fridays we have 17 Supreme Courts (17 benches).”
To this, the Solicitor General jokingly added,
“On the lighter side there are 32 Supreme Courts – the judges themselves,”
Prompting senior advocate Kapil Sibal to quip,
“No, no.”
The courtroom broke into laughter before the Solicitor General clarified,
“On a lighter note.”
On a more serious note, CJI questioned the scope of gubernatorial powers:
“You are saying the power of the governor is such that discretion can be used… but we have seen recent examples where governors have used discretion leading to so many litigations.”
Defending the system, SG Mehta said India’s democracy is resilient:
“Indian democracy is a mature democracy and this democracy has worked efficiently under the Constitution of India. I have seen it work perfectly during the COVID period. A few minor aberrations here and there cannot change it.”
He further added,
“Constitutional interpretations cannot be based on aberrations or some of the worst cases.”
Mehta illustrated his point with a personal example:
“I have seen chief ministers calling the prime minister at 2 am and 3 am during Covid and it was done. Such nicely democracy is working.”
He warned that interpreting the Constitution based on unusual or extreme cases could set a wrong precedent:
“It would be wrong to take constitutional interpretation on some aberrations; hard cases always lead to laying down bad laws.”
At this point, Justice Surya Kant disagreed, countering:
“Hard cases lead to good laws.”
Mehta, choosing humour over escalation, replied:
“I better not respond to that.”
The arguments highlight the ongoing clash of perspectives – whether governors’ discretionary powers are being misused, or whether occasional controversies should not be used to undermine the strength of India’s democratic framework.
The Supreme Court, while reserving its role to purely legal interpretation, made clear that the issue is not about isolated disputes like the recent Tamil Nadu case but about clarifying constitutional expectations for the future.
The court’s final advisory opinion will have a deep impact on Centre-state relations, the federal balance, and the working of Indian democracy itself.
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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