Today, on 9th September, in the Presidential Reference Row, Karnataka told the Supreme Court that discretionary powers of Governors are constitutionally limited, stressing that ultimate sovereignty lies with the people and governance in a parliamentary democracy functions only through Cabinet responsibility and legislative supremacy.
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 the hearing, Senior Advocate Gopal Subramanium, appearing for the State of Karnataka, told the Supreme Court that in India’s constitutional system, real power always belongs to the people and their elected representatives.
He said,
“Ultimate sovereignty lies with the people. Parliamentary democracy is the expression of the collective, manifested through the Legislature. The Executive emerges from the Legislature and is answerable to it. Government is never severed from popular consent. The ultimate responsibility to make the law lies with the Legislature.”
Explaining the constitutional framework, he submitted,
“The President and the Governor are titular heads, bound by the aid and advice of the Council of Ministers. This is the fundamental idea of governance in India and has been seconded by the Supreme Court.”
He stressed that this principle directly affects how Article 200 should be understood.
Article 200 deals with the Governor’s power to give assent to Bills passed by the State Legislature.
Subramanium said,
“Principle has direct bearing on the constitutional interpretation of Article 200.”
Clarifying the role of the President, he added,
“Whether the functions exercised by the President are those of the Union or personal to the President, it is not the President’s satisfaction that is determinative, but that of the Cabinet.”
He further emphasised,
“The true repositories of real power in a parliamentary democracy are the Legislature, in its role as the representative of the people.”
Countering the Centre’s claim that the President and Governors act as defenders of the Constitution because of their oath of office, he argued that they cannot act against Cabinet advice.
He said,
“The President and Governors are only “titular heads” and would not be defending the Constitution, but subverting it by acting against the aid and advice of the Council of Ministers and by denying the essence of Cabinet responsibility.”
Pointing to the real nature of governance, he stated,
“In constitutional law, the ‘functions’ of the President and Governor and the ‘business’ of Government belong to the Ministers and not to the Head of State. The ‘aid and advice’ of Ministers are terms of art which, in law, mean – in the Cabinet context of our constitutional scheme – that the aider acts and the adviser decides in his own authority, and not subject to the power of the President to accept or reject such action or decision, except, in the case of Governors, to the limited extent permitted by Article 163. Even then, the Governor’s discretion, remote-controlled by the Centre, has limited play.”
He warned that giving unfettered powers to Governors would destabilise democracy itself.
He said,
“Unfettered discretion to Governors would undermine democracy,”
He added,
“Allowing the Governor the power to exercise discretion in all his functions would render national elections a numerical exercise in expensive futility. A dyarchy would be established, with two parallel authorities exercising parallel powers.”
On the meaning of “aid and advice”, he pointed to the importance of the 44th Constitutional Amendment, which had clarified the President’s role.
He said,
“The proviso made it clear that the President may require the Council of Ministers to reconsider such advice – either generally or otherwise – but shall act in accordance with the advice tendered after such reconsideration.”
He reiterated this by noting,
“Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.”
According to him, this shows that the “44th Amendment reinforces Cabinet supremacy.”
On the question of discretionary powers of Governors, he made it clear that such powers are very limited.
He said,
“Discretionary powers of Governor are Constitutionally limited,”
He added,
“There are instances where the President employs the Governor as her delegate, such as under Article 356. There are also statutory provisions that empower the Governor to act outside the aid and advice of the Cabinet—for example, the now-repealed Section 197 of the CrPC, which dealt with sanction for prosecution.”
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
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