Imposing deadlines on Governors will create functional hurdles, Centre cautions Supreme Court
The 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.
Solicitor General Tushar Mehta, in his submissions has further said that the high plenary positions of Governors and President fall within an exclusive zone and while they are political positions, they are also representations of democratic will.
"Governors, are thus not to be treated as alien/foreigner in the federating units of the Union. Governors are not just emissaries of the Centre rather representatives of the entire nation in each and every federating unit. They represent national interest and national democratic will in the States as part of the larger Indian constitutional brotherhood. The gubernatorial assent is a high prerogative, plenary, non-justiciable power which is sui generis in nature. Although the power of assent is exercised by the person at the apex of the Executive, however, the assent itself is legislative in nature. This blended and unique nature of assent, clothes it with a constitutional character whereby no judicially manageable standards exist. Thus, despite the expanding contours of judicial review, there are some zones like assent that remain non justiciable...", the SG has further stated.
Stating that Article 200 uses four different verbs - assent, withhold, reserve and return, Court has been told that each word confers different power and has a different meaning. The power of assent can be exercised in discretion and shall be exercised if the situation so demands, it adds.
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.
Notably, on Monday, August 19, the Supreme Court will be hearing 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.
Tamil Nadu and Kerala have filed applications before the Supreme Court in Special Reference Case No. 1 of 2025, seeking a direction to return the Presidential Reference dated May 13, 2025, as unanswered.
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 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.
“Do 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?,” Murmu has further sought clarification. Supreme Court has been asked to clarify if 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.
Acting on a writ petition filed by the Tamil Nadu state government, a bench of Justices JB Pardiwala and R Mahadevan held in case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months, it said.
In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months; in case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month, the bench had said.
"When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built," the top court’s bench had said.
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
Bench: CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar