Supreme Court Advisory Role Triggered on President’s Reference, Says SG Mehta

The Solicitor General of India today told the Supreme Court that the reference made by President of India Droupadi Murmu over the opinion sought by her on the court's order imposing timelines for deciding on bills is necessitated on account of the genuine functional difficulties that have arisen for the President and the Governors across the country appointed by Her.

"All of 16 references have been made by the President to the Supreme Court till date..this is the first time where the President has considered that there is a constitutional functional problem and how will the President act..", the SG told court today.

Arguing that the reference is not a lis to be decided, SG Tushar Mehta further told court 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.  

It has further been submitted that the present Presidential Reference under Article 143(1) does not invite the Court to “sit in appeal” over State of Tamil Nadu vs. Governor of Tamil Nadu, and rather, it seeks independent questions of constitutional law of considerable public importance arising out of Articles 200, 201, 142, 143, 145(3) and 361. "The fourteen questions framed by the President are specific, precise, and confined to the constitutional architecture of Governor’s and presidential action vis-à-vis Bills (Articles 200–201), justiciability, timelines, and the ambit of Articles 142, 145(3), 361, and 131", court has been told.

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, Supreme Court of India has been told by the Central government 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.

"The powers under Articles 200 and 201 of the Constitution, being high plenary constitutional functions, are not to be exercised mechanically but as a solemn constitutional responsibility....the absence of any express time limit in Articles 200 and 201 is a deliberate and conscious constitutional choice. The interpretation of these Articles must follow the plain meaning of the words therein and clear constitutional text reflecting demonstrative intent of its framers and therefore, cannot be strained to read in limitations which are not provided for. Importing timelines would negate their very purpose", the Centre has stated.

Arguing that a timeline hampers the Governor’s or President’s ability to safeguard constitutional compliance, it has been submitted that any judicial direction of imposition of any timeline would amount to an amendment to the Constitution. It is further submitted that recommendations of the Sarkaria Commission, National Commission to Review the Working of the Constitution, and other bodies advocating timelines, cannot control constitutional interpretation. The recommendations, always remain suggestions only for the actual amending body and cannot override existing constitutional text.

"Articles 200 and 201 confer wide discretion on the Governor and President to consider the Bills without any time-bound compulsion, and the absence of timelines is a deliberate and conscious constitutional feature. There is no procedure prescribed under the constitution to import such limits without effectively amending the Constitution which is a function reserved exclusively for the constituent power of the Parliament under Article 368", Court has further been told.

On the Supreme Court's powers under Article 142 to pass orders for doing complete justice, Centre has stated that is not a supervening judicial power which can override the constitutional provisions or run contrary to them. "The Apex Court, even under Article 142, is bound by constitutional provisions and principles. One organ of the State cannot arrogate to itself the core functions vested under the Constitution to another organ. Such arrogation, would create a situation where one organ could elevate itself above the other in absence of similar power in the remaining organs, and would strike at the core of democratic governance", the written submissions state.

Today, 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.

The Supreme Court’s decision of April 8th has also been questioned in view of the proviso to Article 145(3) of the Constitution of India. The President has asked if is it not mandatory for any bench of the Supreme 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.

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 19, 2025

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