Judicial Activism should not turn into Judicial Terrorism: SC during Presidential Reference hearing
The Supreme Court of India today said that judicial activism must remain, but it should not turn into judicial terrorism or judicial adventurism. Chief Justice of India BR Gavai made this remark while hearing submissions made by Solicitor General Tushar Mehta during the Presidential Reference on the issue of timelines for deciding Bills.
"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.
When the CJI questioned SG Mehta on Article 200 being totally beyond judicial review, the SG responded saying, that the provision is not justiciable. "The constitutional comity under our constitution means respect of one organ for another, no hierarchical system..there are checks and balances, your lordship has power of judicial review over legislative decisions, but when it comes to constitutional plenary power, justiciability should be denied..", the SG said.
Furthering the discussion, the CJI said, "We will never interfere how a district is to be administered, but suppose a particular function is entrusted to the Governor and for years he withholds it, will it be outside scope of judicial review..if the highest constitutional authority does not act, still will the court be powerless..".
Responding to this, the SG stated, "The solution lies in the political sphere..such cases do happen and such cases are solved through that democratic process..your lordships are the custodians but there are certain problems which are not solvable by the judiciary.. they are to be solved by political democratic process...There are political functionaries who are responsible and responsive. They are answerable to the public everyday and atleast every five years..".
Solicitor also made submissions on judicial restraint and referred to Aravali Golf Club vs. Chander Hass judgment. "Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State must have respect for the other...", he read out from the judgment before court.
Earlier today 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..".
Yesterday, Supreme Court had 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.
Supreme Court has also been told Supreme 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 sought 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.
"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.
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.
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 21, 2025
Bench: CJI BR Gavai, Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar