Today, On 21st August, in the Presidential Reference Hearing, CJI Gavai strongly cautioned SG Mehta, stressing that while judicial activism has its role, it must never cross the line into judicial terrorism, reiterating the constitutional limits of judicial power in governance.
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 Constitution Bench hearing on the powers of Governors over state bills continued today, with Solicitor General Tushar Mehta addressing the court.
As the Bench assembled, SG Mehta began his submissions.
He remarked,
“Of late, Milords.. You cannot take voters for a ride.. Voters ask what is due.”
During hearing on constitutional issues regarding the imposition of timelines for governors and the president to act on bills from state assemblies, Chief Justice of India B.R. Gavai remarked that,
“Judicial activism should never become judicial terrorism or judicial adventurism.”
This statement was made in response to Solicitor General Tushar Mehta, who argued that experienced elected officials should not be undermined.
The bench, 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.
Mehta expressed anticipation for senior advocate Kapil Sibal‘s input, noting Sibal’s significant experience in governance and public life.
Mehta emphasized that elected representatives are now directly accountable to voters, who are more informed and engaged than in previous decades. He stated that the act of “withholding assent” by a governor is a complete constitutional function under Article 200.
Earlier, On Wednesday, the Supreme Court ruled that governors cannot send bills back to the president for consideration after they have been approved by the state assembly for a second time.
The court indicated its willingness to exercise advisory jurisdiction regarding the presidential reference amid preliminary objections from the Tamil Nadu and Kerala governments.
In May, President Droupadi Murmu sought clarity from the Supreme Court under Article 143(1) on whether judicial orders could establish timelines for presidential discretion on state assembly bills.
The Centre argued that imposing fixed deadlines on governors and the president would lead to one branch of government overstepping its constitutional boundaries, resulting in “constitutional disorder.”
Previously, on April 8, the Supreme Court had stipulated that the president must decide on bills reserved by governors for her consideration within three months of their receipt.
In her five-page reference, President Murmu posed 14 questions to the Supreme Court regarding the powers of governors and the president under Articles 200 and 201 in relation to state legislature 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