Today, On 3rd September, In the Presidential Reference hearing, Kapil Sibal told the Supreme Court that a Governor cannot examine the legislative competence of Bills, stressing that any discretion must strictly come from the Constitution and not through arbitrary delays that undermine state legislatures.
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.
The Supreme Court emphasized that its ruling on the Presidential reference regarding the powers of Governors over bills passed by State legislatures would be impartial, unaffected by the political party currently or previously in power.
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.
Senior advocate Kapil Sibal, appearing for West Bengal in the Supreme Court hearing on the role of Governors in giving assent to Bills, strongly argued that the Constitution does not allow Governors to block legislation indefinitely. He also said that Governors must act according to the Constitution and not create conflict with the elected government.
Kapil Sibal opened his arguments saying,
“The concept of discretion is alien to Article 200.”
He explained that discretionary power for the Governor does not apply when a Bill is sent for assent. He also pointed out that the same arguments were earlier rejected by three counsels, but the Solicitor General had repeated them in this case.
Sibal presented a hypothetical situation to explain the problem. He said, suppose a Bill is passed and sent for assent, the Governor withholds it, then the legislature passes it again and he withholds it again. This could lead to a never-ending cycle.
He said,
“Let us not interpret the Constitution to make it unworkable.”
He further pointed out that under Article 361, courts cannot issue mandamus to the Governor, and since the Governor cannot file affidavits, what matters is not the language but the objective.
Sibal was visibly annoyed when he saw advocates walking out in the middle of the hearing.
He remarked,
“If counsels do not sit till the end of hearing, they should heard at last.”
Chief Justice of India quickly reminded him,
“You have done it too.”
To this, Sibal responded,
“Only to seek adjournment.”
Sibal warned that Governors should not be allowed to misuse their powers to stall governance.
He said,
“Let us not fall into a trap in which the Governor becomes an impediment to the working of the Constitution.”
Responding to the Centre’s stand that political solutions, not judicial orders, could solve the issue of gubernatorial delays, Sibal disagreed.
Referring to Solicitor General Tushar Mehta’s ‘cup of coffee’ remark, Sibal said,
“It may not be three months, but Governor cannot withhold endlessly. The court has to say this. You have to find a solution not over a cup of coffee but through correct constitutional interpretation.”
Sibal underlined that Bills carry a presumption of constitutionality.
He said,
“Reference to President by Governors are rare.”
He explained that the legislature is not primarily concerned with deciding constitutionality, as that test arises only after a Bill becomes law. Once a law is enacted, it can be challenged by citizens in court, including on the grounds of violation of fundamental rights.
He also emphasised the limits of Governor-related power, saying,
“Governors’ discretion must be conferred by the Constitution.”
Sibal argued that unless a constitutional provision specifically gives such discretion, a Governor must act on the aid and advice of the Cabinet.
Recalling past constitutional cases, Sibal also referred to the Nebam Rebia case, saying it was the first time in history that the Supreme Court restored a dismissed government through mandamus because the Governor’s action was found completely unconstitutional.
Justice Nath, however, reminded him about the Kalyan Singh case.
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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