Today, on 11th September, in the Presidential Reference Row, CJI Gavai asks, “If one wing of democracy fails, would the Court be powerless and forced to sit idle?” He questions the Centre, stressing the judiciary’s role as custodian of the Constitution and protector of democratic principles.
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.
A Constitution Bench, led by Chief Justice of India BR Gavai and including Justices Surya Kant, Vikram Nath, PS Narasimha, and Atul S Chandurkar, was addressing a reference made by President Droupadi Murmu under Article 143 of the Constitution.
During hearing on the Governor’s powers under the Constitution, Solicitor General Tushar Mehta clarified that the Governor has the authority to return a Bill for reconsideration along with a formal declaration of withholding of assent.
SG Mehta explained,
“Governor returns a Bill for reconsideration accompanied with a formal declaration of withholding of assent.”
He added that the gubernatorial message sent along with the returned Bill under proviso 1 of Article 200 would clearly define the scope of reconsideration.
The Solicitor General further clarified that Bills reconsidered and sent back to the Governor for assent in the same year retain their original Bill number, whereas if the Legislature reconsidered the Bill the next year, the Bill number would change.
Addressing senior advocate Arvind Datar’s contention that the Governor has no discretion and must assent even if a Bill is void, SG Mehta firmly countered, stating,
“Governor can withhold Bills which are apparently unconstitutional.”
He also listed circumstances where a Governor may reserve a Bill for the President’s consideration, including when a Bill is capable of subverting the Constitution, undermines it, erodes democratic principles, has national implications, or impacts other States.
Elaborating on the role of the Governor as a check on the State Executive, Mehta said,
“While interpreting constitutional provisions, 200 and 201 in this case, the Court must consider extreme and dangerous circumstances which may arise in a nation’s future and prepare for them. Hence, a cautious approach must be taken by the Court. The Governor’s role as a check-and-balance on the State Executive must be upheld.”
Chief Justice B.R. Gavai emphasized the framers’ vision, stating,
“While the Constitution Framers were considering the position of the Governors, the expectation was it would be an existence in harmony.”
He added that normally, while appointing Governors, the States would be consulted.
SG Mehta stressed that withholding assent is an independent constitutional option.
He said,
“Withholding of assent by Governor is as an independent option. The constitutional design treats the Governor’s assent as a substantive stage in the making of law and not as a mere clerical endorsement,”
He further clarified,
“The process of assent cannot be meaningful if one participant is reduced to silence. Therefore, the assent stage must be understood as a structured opportunity for principled engagement.”
Addressing claims by opposing States that the assent powers are purely executive, SG Mehta rejected the notion, stating,
“Governor’s assent is a part of the legislative process. Assent is quasi-legislative or sui generis in nature. The claim of the Opposing States that the assent powers are executive in nature is fundamentally erroneous. While the executive may assist in making the Bill which may be moved before the Legislature, once the process is over, till the point in time of granting of assent, the process is of legislative character. It is for this reason that the Governor is held to be a part of the Legislature.”
On the Supreme Court’s oversight, Mehta added,
“Supreme Court cannot impose a one-size-fits-all time frame. Each case turns on its own peculiar facts. The SC cannot issue a mandamus on an act of the Governor done as a part of a legislative process.”
Justice Surya Kant clarified the Court’s limited role in guiding the Governor, stating,
“The Court cannot ask a Governor to take a decision under A. 200 in a particular manner, but the Court can very well ask the Governor to take a decision. In the latter case, mandamus can be issued.”
This discussion reaffirms the Governor’s crucial role as a constitutional check in the legislative process, highlighting that the assent stage is not merely procedural but a substantive safeguard designed to uphold the Constitution and democratic principles.
CJI Gavai also highlighted the Court’s proactive role, asking,
“Howsoever high an authority may be… I am a strong believer in the doctrine of separation of powers. I believe that judicial activism must not turn into judicial terrorism. At the same time, if one wing of democracy fails in the discharge of his duties, would the Court, which is the custodian of the Constitution, be powerless and forced to sit idle?”
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