Today, on 10th September, In the ongoing Presidential Reference Row, the Centre told the Supreme Court that the Governor is not a servant of the government but an independent constitutional office, exercising implied discretion to uphold and defend the Constitution in crucial circumstances.
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.
As the crucial hearing in the Presidential Reference case resumed after lunch break, Solicitor General Tushar Mehta, appearing for the Centre, began his rejoinder.
He told the Supreme Court,
“My argument is not the high-pitch one that a Governor has the power to sit endlessly over a Bill. Governor has ‘four’ options under Article 200.”
During the proceedings, Chief Justice of India B.R. Gavai quoted senior advocate Gopal Sankaranarayanan, saying that since the matter is a reference, there was no question of a rejoinder.
Senior advocate Kapil Sibal acknowledged that this point was technically correct but also argued that the issue was complex.
Justice Nath observed that the matter was voluminous, highlighting that there are 25,000 pages of written submissions.
The Solicitor General then clarified the importance of the matter by stating that a Presidential Reference is not merely an opinion.
He told the Bench,
“You are interpreting the Constitution while giving the opinion.”
Moving further, the SG said that the Governor’s assent is crucial and not just a formality.
“The opposing States have argued that the Governor has no discretion. He is bound by the advice of the Cabinet. So, they are saying a Governor is only a ‘postman’ with two differences, i.e., his car has a beacon and he has a bigger house. This is a fundamentally flawed argument.”
He also strongly opposed the States’ submission that the Governor’s decision could be judicially reviewed.
According to him,
Governor may not have the right to vote in the House, but he is an essential component of legislature. The journey of the Bill, before it becomes law, culminates with the Governor’s assent under Article 200.”
The SG further explained the Governor’s constitutional role, arguing that,
“The Governor has implied discretion, and this flows from his duty to preserve protect and defend the Constitution.”
He emphasised that the Governor is not a subordinate office.
He said,
“The Governor uses his implied discretion to uphold and defend the Constitution. The Governor is not a servant of the government; he is an independent constitutional office without which there can be no legislation in the State,”
He further added,
“A Governor is not subservient to the Government of India.”
The SG also described the dual role of the Governor.
He submitted,
“Governor is not only a Constitutional Head of the State bound by the aid and advice of the Cabinet. Normally, he has to act within the aid and advice of the Cabinet. He is not a super CM. The second role is to function as vital link between the State and the Union Govt. In certain circumstances, he is a special emergent situation, he may act as the special representative of the Union Govt.”
When the CJI asked,
“Is that during the period of Emergency?”
The Solicitor General responded,
“In certain circumstances, he is duty-bound to refuse assent. The State legislature would never allow him to do so.”
Explaining further, the SG pointed out that sometimes the Governor must take an independent stand.
He submitted,
“Sometimes there are circumstances that the Governor must refuse assent to Bills to protect the Constitution.”
For this, he referred to the example of Punjab in 2016.
He recalled,
“The Bill, had it become law, would have affected cooperative federalism, relationship with a neighbouring country. There are instances when a Governor has to be a neutral umpire when the interests of the Union and State Govts are in conflict.”
With these submissions, the Solicitor General underlined that the Governor is not a ceremonial figure but an active constitutional authority who can, in certain circumstances, refuse assent to safeguard the Constitution.
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
