Presidential reference: Elected government can't be at 'whims of Governors', remarks SC

New Delhi, Aug 20 (IANS) The Supreme Court on Wednesday remarked that allowing a Governor to withhold assent to Bills without returning them to the state Assembly would place the functioning of an elected government at the "whims and fancies" of a Governor.

A Constitution Bench, headed by Chief Justice of India (CJI) B.R. Gavai, was hearing the reference made by the President under Article 143 of the Constitution in the aftermath of the apex court verdict in the Tamil Nadu Bills case.

President Droupadi Murmu, in May this year, had asked the Supreme Court to report its opinion on constitutional options available to a Governor when a Bill is presented to him under Article 200 of the Constitution.

Before the 5-judge special Bench, also comprising Justices Surya Kant, Vikram Nath, P.S. Narasimha and Atul S. Chandurkar, Solicitor General Tushar Mehta, representing the Union government, argued that a Governor could permanently withhold assent to a Bill without sending it back to the state legislature for reconsideration.

SG Mehta submitted that under Article 200 of the Constitution, the Governor has four options – to grant assent, withhold assent, reserve the Bill for consideration of the President, or return the Bill to the Assembly.

The Solicitor General, the second-highest law officer of the Union government, added that if a Governor withholds assent, there is no obligation to return the Bill to the state Assembly for reconsideration.

At this, CJI Gavai said: "Would we not be giving total powers to the Governor to sit in appeal? The government elected with the majority will be at the whims and fancies of the Governor", suggesting that such an interpretation of the Governor’s powers could allow him to indefinitely stall legislation.

When the Solicitor General referred to the Constituent Assembly debates on the importance of Governors in India’s federal structure, the Supreme Court asked whether the high office had, in practice, lived up to the Constituent Assembly’s vision of maintaining harmony with elected state governments.

"You are entitled to read the debates, but see whether expectations have been met," CJI Gavai told Mehta, pointing out that the exercise of Governors’ discretionary powers in the past had triggered several rounds of litigation.

Stressing that constitutional interpretation cannot be based on the "worst examples", the law officer argued that the Governor’s power to withhold assent is meant to be exercised rarely and sparingly, only in extraordinary situations such as when a Bill is unconstitutional, repugnant, or violative of fundamental rights.

The 5-judge special Bench will continue hearing the matter titled "In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India" on Thursday.

In April 2025, a two-judge Bench of the Supreme Court, using its inherent powers under Article 142 of the Constitution, resolved a standoff between the Tamil Nadu government and Governor R.N. Ravi over the delay in granting assent to Bills passed by the Assembly.

It ruled that Governor Ravi's refusal to approve 10 Bills in Tamil Nadu was both "illegal and arbitrary" and set a three-month deadline for Presidential and gubernatorial approval of Bills passed by the legislature for a second time.

"The President is required to take a decision on the Bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received," said a Bench of Justices J.B. Pardiwala and R. Mahadevan.

If there is no decision within this time frame, states are entitled to file writ petitions seeking a writ of mandamus against the President, the Justice Pardiwala-led Bench clarified.

The apex court used the powers for the purpose of declaring the 10 withheld Bills as deemed to have been assented to on the date when they were presented to the Governor after being reconsidered by the state legislature.

It held that once a Bill is returned, re-passed by the legislature, and presented again to the Governor, it is not open for the Governor to reserve it for the President’s consideration.

Additionally, the President is now under an obligation to provide reasons for their decision, which must be communicated to the state government.

Further, it suggested that the President should consult the Supreme Court on Bills involving Constitutional issues.

The judgment, apparently, brought Presidential actions under judicial review by favouring a three-month deadline for granting assent to Bills, promoting the President to make a reference under Article 143 of the Constitution.

Article 143 provides that the President may invoke the advisory jurisdiction of the Supreme Court on matters of public importance or constitutional interpretation.

In the reference, President Murmu asked the apex court: "Is the Governor bound by the aid and advice tendered by 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?"

Further, the Presidential reference questioned if the exercise of constitutional discretion by the Governor on Bills is justiciable when Article 361 of the Constitution puts an absolute bar to judicial review in relation to gubernatorial actions.

"In the absence of a constitutionally-prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?" the President asked the top court to consider and report its opinion thereon.

--IANS

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