Does the Presidential reference raise questions which the Supreme Court did not answer earlier?

On 13 May 2025, President Droupadi Murmu sought the Supreme Court’s advice on 14 questions in regard to assent of state bills by a Governor and the President under Articles 200 and 201 of the Constitution. The reference addresses various aspects of the recent judgement on the Tamil Nadu governor case where the Supreme Court had set aside the Governor’s decision to reserve 10 bills passed by the Tamil Nadu assembly for the President’s consideration. It held that all consequential steps taken by the President on the bills were void.

The Supreme Court then exercised its inherent jurisdiction under Article 142 to declare these Bills as deemed to have been assented on the date when they were presented to the Governor, considering the unduly long period they were kept pending. Curiously, the reference has carefully avoided any mention of the Judgement itself as if the President’s ‘doubts’ about the law on the subject have arisen independently. Although it may appear to be a legal strategy to answer criticism that the Union Government is using the reference route as an alternative to using the Court’s review jurisdiction, it has not been able to stop the critics from lifting the veil, to question its intentions.

The reference is broken down into two parts. The first part is a statement of legal facts and some prima facie assumptions which are shaped as concerns warranting the need of the Court’s advisory jurisdiction. The second part lists the questions which the President has referred to the Supreme Court. 

Prima facie assumptions

The reference begins by outlining the purpose of Articles 200 and 201. It then says that the provision does not stipulate a timeline for the Governor and President to act on a bill. The Tamil Nadu decision had prescribed timelines for granting assent on bills. This is followed by a debatable statement which says that the constitutional discretion exercised by the Governor and President is “essentially governed by polycentric considerations, inter alia being federalism, uniformity of laws, integrity and security of the nation, doctrine of separation of powers”. 

The President then puts forth her concerns: 

1. There are conflicting judgements of the Supreme Court as to whether the assent of the President under Article 201 is justiciable or not; 
2. States approach the Supreme Court under Article 32 instead of an original suit under Article 131 to raise federal issues involving the interpretation of the Constitution. Although the President does not name the States, it is obvious that Tamil Nadu, Kerala, Telangana and Punjab had approached the top court with similar issues against their Governors under Article 32.
3. The scope of Article 142 needs clarity in context of issues which are covered by constitutional or statutory provisions. 
4. Lastly, deeming assent of a President or Governor on a bill is alien to the constitutional scheme. It circumscribes the power of both functionaries. 

The first part then concludes by stating that the questions of law arising in the reference are required to be answered by the Court expediently as they are of public importance in view of the “prevailing circumstances”. An opinion of the Supreme Court under Article 143 is not binding on the Union or other functionaries. It carries persuasive value and is of merit to other Benches of the Supreme Court and constitutional functionaries. The Tamil Nadu Governor judgement acknowledges that the Court’s advisory opinion should ordinarily be accepted by the legislature and the executive. 

President’s 14 questions and answers

We examined each of the 14 questions posed by the President, in her communication to the Supreme Court. The Tamil Nadu Governor’s judgement answers most of them. We’ve inserted relevant excerpts (with light edits) from the judgement below: 

1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200?

The Governor has three options: grant assent, withhold assent or reserve the bill for the President’s consideration (Paragraph 169). The two provisos of the Article outline the procedure if a bill is withheld or reserved (Paragraph 170, 171). Once a withheld bill is reconsidered and sent back to the Governor, he has no option but to grant assent. (Paragraph 170) 

2. 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? 

The Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers. There are only three exceptions to this “general rule”. The exceptions are: If the Bill is such that would derogate the powers of the High Court, where the bill mandatorily requires the assent of the President before it becomes a law or is necessary for the purpose of securing immunity against the operation of some constitutional provision, or if the bill undermines the Constitution by placing the fundamental principles of a representative democracy in peril. (Paragraph 318) 

3. Is the exercise of constitutional discretion by the Governor under Article 200 justiciable?

Grant of assent by the Governor or the President, acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable. However, the withholding of assent or reservation of bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards. (Paragraph 434, Point XXIII) 

4. Is Article 361 an absolute bar to the judicial review in relation to the actions of a Governor under Article 200?

Rameshwar Prasad v Union of India (2006), leaves no doubt that the immunity enshrined in Article 361 of the Constitution does not preclude or prohibit the courts in any manner from looking into the actions of the Governor which by necessary implication would include his actions under Article 200 as well. (Paragraph 333) 

5. Can the Court through judicial orders impose a timeline on a Governor for the exercise of his powers under Article 200? 

Courts are well-empowered to prescribe a time-limit for the discharge of any function or exercise of any power which, by its very nature, demands expediency. (Paragraph 434, Point XII) 

6. Is the exercise of constitutional discretion by the President under Article 201 justiciable?

Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner. (Paragraph 434, Point XXIV) 

7. 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?

“Although we are cognisant of the fact that in discharge of his powers under Article 201, the President is expected to “consider” the bill and such “consideration” may be difficult to be bound by strict timelines, yet it cannot be a ground to justify inaction on part of the President.” (Paragraph 383). “Where no time for the exercise of a power has been stipulated, such power must be exercised in a reasonable time, so as to not render the subject matter nugatory or dilute the purpose sought to be achieved” (Paragraph 384). “It would be apposite for us to observe here that the idea of imposing timelines on the various stakeholders would not be antithetical or alien to the procedure that surrounds the discharge of constitutional functions under Article 201.” (Paragraph 389) 

8. 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?

“We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the Governor to refer bills to the constitutional courts for their advice or opinion thereupon. Under the scheme of the Constitution as we see it, there is only one possible way for the Governor to ascertain the palpable constitutionality of a bill, which is by way of reserving it for the consideration of the President who in turn is then expected to invoke Article 143”. (Paragraph 412)

9. Are the decisions of the Governor and the President under Article 200 and Article 201, 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? 

“….We are of the considered view that constitutional courts are not precluded from making suggestions or opining about the constitutional validity of a bill before the same becomes a law. This is because preventing a patently unconstitutional bill from being enacted saves not only public resources but also respects the wisdom of the legislature by providing the constitutional functionaries associated with the process of passage of a legislation, to review the bill and take appropriate actions…. The President’s recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government’s approach to bills reserved under Article 200.” (Paragraph 415) 

10. Can the exercise of constitutional powers and the orders of/by the President/Governor be substituted in any manner under Article 142?

“We are not exercising our power under Article 142 in a casual manner, or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor [Tamil Nadu] ….were all in clear violation of the procedure envisaged under the Constitution, that we have decided to declare the deeming of assent to the ten bills, considering it to be our constitutionally bounden duty.” (Paragraph 433) 

11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200?

“The conduct exhibited on part of the Governor, as it clearly appears from the events that have transpired even during the course of the present litigation, has been lacking in bonafides…. Article 142 empowers this Court to do complete justice and in the facts of the present case, more particularly, in light of the fact that the option of granting assent to the repassed bills was the only constitutionally permissible option available with the Governor, we deem it absolutely necessary and appropriate to grant that very relief by exercising our extraordinary powers.”(Paragraph 432) 

Author’s note: The Judgement impliedly answers this question by stating that the conduct of the Governor left them with no option to declare the “ten Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023.” Therefore, the Bench’s deemed assent is tantamount to the assent of the Governor under Article 200, making the law enacted by the state legislature as a law in force. (Paragraph 435)

12. In view of the proviso to Article 145(3), is it not mandatory for any bench of this Hon’ble 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? 

Author’s Note: The Judgement does not answer this question. The issue was not raised by the parties and the Attorney General while arguing in the Tamil Nadu governor case. However, one can infer that the Court would have dismissed such a plea in view of clear precedents. The Bench relied on previous decisions by larger Benches in Shamsher Singh v State of Punjab (1974) and MP Special Police Establishment v State of Madhya Pradesh (2004) which had established that the President and the Governor were only figureheads in the constitutional scheme, having limited areas of discretion. Read our article here: A substantial question of law. 

13. Do the powers of the Supreme Court under Article 142 limited to matters of procedural law or Article 142 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?

Author’s Note: The Judgement is silent on this question as the issue was not raised in the case. For relevant precedents to answer this question, read our story: Has the Supreme Court been trigger-happy with Article 142? 

However, it can be inferred that this question ignores the Court’s clear ruling that its use of Article 142 to deem Governor’s assent is not applicable in every case of Governor’s inaction. The Judgement implied that bills would not be automatically deemed to be assented if the Governor fails to adhere to the prescribed timelines laid down in the Judgement. Instead, the inaction on the bills would be open to judicial review where the Governor could justify the delay. 

According to Paragraph 240 of the Judgement: “The prescription of a time-limit into Article 200 does not fundamentally change the procedure which has been envisaged. While the reading in of a time-limit under Article 200 would have meant that there would be deemed assent upon failure of the Governor to comply with the said timeline, the prescription of a reasonable time period does not introduce any such mechanism or deeming fiction in Article 200”. 

In Paragraph 241, the Bench further distinguishes time-limits that are expressly prescribed and those that are judicially evolved: in the former, the consequence of deemed assent emanates from the provision itself whereas in the latter there could be no such consequence. The courts judicially reviewing the action or inaction can direct a decision to be taken within a time-bound manner, or in exceptional cases like the one at hand, deem the assent to have been granted under Article 142. 

14. Does 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?

Author’s Note: The Tamil Nadu Governor case is not a result of a dispute in law or fact that had arisen between the Union Government and the State which would require seeking original jurisdiction of the Supreme Court under Article 131. Rather, it was a writ of mandamus by the State Government, following the inaction on the part of the Governor in granting assent to the State bills. 

The answer to this question is implicit in Paragraph 434, Point XXIV: “Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action.” 

The inference, therefore, is that the State Government’s invoking Article 32 in this case is justified.