Courts cannot ask Governor to assent to Bills: Maharashtra govt before SC

The Maharashtra government on Tuesday told the Supreme Court that assent to a Bill cannot be given by the court.

"Assent to a law has to be given either by Governors or by President", Senior Advocate Harish Salve, representing Maharashtra government, submitted before a five-judge constitution bench hearing the Presidential Reference. 

Court was further told that President or Governor cannot be answerable to any court for the exercise and performance of the powers and duties of their office or for any act done or purporting to be done in the exercise of those powers.

"Article 200 does not give any preconditions for the Governor to give assent, withhold or reserve Bills. Then, how is it possible to make a judicial decision on his bonafide?", Salve said before court.

The CJI Gavai led bench was further told that Article 200 does not set out a time limit in which the Governor has to exercise his discretion because the Governor has to take a considered decision on the future course of action in a manner which would be consistent with the constitutional balance between the different institutions, while maintaining due deference to the wisdom of the legislature of the State. 

On August 19 the Supreme Court began hearing the reference made by President Droupadi Murmu. During the hearing the Supreme Court of India said that judicial activism must remain, but it should not turn into judicial terrorism or judicial adventurism. "I have always deprecated judicial overreach... I have always said judicial activism must remain, but it should not turn into judicial terrorism..," CJI BR Gavai said.

Earlier court was told by the Central Government that there are political solutions that can be adopted to resolve the dispute when a Governor is sitting on a Bill. Solicitor General Tushar Mehta told a CJI BR Gavai led constitution bench hearing the Presidential Reference on timelines for deciding bills, "Such solutions are taking place and it is not everywhere that state is advised to rush to the Supreme Court.. The Chief Minister goes and requests the Prime Minister..the Chief Minister goes and meets the President..there are delegations which go and say please talk to the Governor and let him take decision one way or another....telephonically they are sorted out..".

Supreme Court has also questioned whether withholding of bills by the Governor would leave the elected government at the whims and fancies of the Governor. In response, the Solicitor told court that once the Governor withholds a Bill, it falls through. "Governor is not just a postman..an individual who is not directly elected is no lesser than an individual who is directly elected..", the SG added.

Court was told that the office of the Governor is not an asylum for retired politicians and has its own sanctity. Solicitor General Tushar Mehta while making his submissions on the President's reference took court through the process of appointment of Governors as envisaged by the Constituent Assembly. SG added that the Constituent Assembly had examined that Centre will have to play a role in the governance of provinces and that is how the role of the Governor is fixed.

During his submission, SG also told court that President of India Droupadi Murmu has sought the opinion on the court's order imposing timelines for deciding on bills on account of the genuine functional difficulties that have arisen for the President and the Governors across the country appointed by Her. Arguing that the reference is not a lis to be decided, SG Tushar Mehta had further told court yesterday that the questions under reference are precise, specific and seeks exercise of the plenary high constitutional power of the President invoking the advisory jurisdiction of this Hon’ble Court.

The President is said to have requested authoritative guidance on constitutional questions that either have arisen or are likely to arise across jurisdictions and the objection that the Reference “sits in appeal” is misconceived as advisory jurisdiction is being invoked strictly within its constitutional contours.

In its written submissions, Centre has submitted that as timelines are conspicuously absent in Articles 200 and 201 of the Constitution which deal with the exercise of discretion by the Governors and President to grant assent on Bills, any judicially imposed timeline would create an interpretative confusion and functional problem for constitutional functionaries.

At the beginning of the Constitution Bench hearing, the Supreme Court heard parties on maintainability of the special reference case taken up over the opinion sought by President Droupadi Murmu on its order imposing timelines for the exercise of discretion by the Governor and the President under Articles 200 and 201 of the Constitution of India to decide on bills.

A five judge bench of the Supreme Court of India comprising CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar had recently issued notice to the Union of India and all the state governments in a special reference case which was registered on July 19 by the court's own motion titled, "IN RE : ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR AND THE PRESIDENT OF INDIA vs.".

In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the Governor and the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion, President Murmu has asked by way of reference.

On 8th of April, the Supreme Court held that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency and it is not open for the Governor to reserve a Bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso. The top court added that once a bill is returned to the Governor after reconsideration by the State legislature, it must be assented to without delay. The Governor cannot reserve such a bill for the President’s consideration, as per the constitutional scheme under Article 200.

In this backdrop, President Murmu has asked if in light of the constitutional scheme governing the powers of the President, is the 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 the Governor reserves a Bill for the President’s assent or otherwise? “Are the decisions of the Governor and the 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?”, the President has asked.

Case Title: In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India

Case Number: Special Reference Case No. 1 of 2025

Hearing Date: August 26, 2025

Bench: CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar