The Supreme Court’s retreat from holding Governors accountable

Faced with prolonged delays on the part of the Governor in assenting to bills, the state of Tamil Nadu moved the Supreme Court. This unfolded even as several other Opposition-ruled states saw bitter confrontations between elected governments and Governors, such as in Kerala and West Bengal. 

In this wider context, in April 2025, in State of Tamil Nadu v The Governor of Tamil Nadu, a two-judge Bench led by Justice J.B. Pardiwala placed guardrails on the exercise of the discretionary powers by Governors and President under Articles 200 and 201, respectively, when it came to assenting or withholding assent to bills. 

As I have argued elsewhere, the court mined its rich administrative law to hold that the Governor’s power to assent cannot be exercised based on irrelevant considerations, must adhere to the principles of natural justice and should be exercised without mala fides. As a safeguard against prolonged inaction by the Governors in assenting to bills, the Bench also laid down timelines as standards for judicial review. 

In laying down these timelines, the Bench sought to provide objective standards to measure the unreasonableness of the delay, and even left room for Governors and the President to exceed such timelines where they could justify the reasons for delay. A ‘deemed assent’—in the two-judge Bench’s own admission—would not always follow.

In the wake of this decision, President Droupadi Murmu—at the prompting of the executive—referred a list of questions to the Supreme Court. In November 2025, a five-judge Bench of the Court responded to this Reference in an advisory opinion. 

In this article, I argue that, through this opinion, the Supreme Court has retreated from the advancements made by the two-judge Bench in Tamil Nadu Governor. The only point of convergence between the two judgements is the finding that Governors do not have the option to withhold assent simpliciter, i.e., withhold by way of a pocket veto, without returning the bill to the assembly for reconsideration. 

That apart, the Reference does little to alleviate the problems of prolonged inaction by Governors. 

Governors not bound by advice of Council of Ministers 

The Reference Bench found that the Governor is not bound by the aid and advice of the Council of Ministers when it makes one of three choices: assent to a bill; withhold it and return to the assembly; reserve it for the President’s consideration. The five-judge Bench provided no meaningful standards to guide the Governor’s discretion in discharging these crucial constitutional functions. In doing so, the advisory opinion carved out wide discretionary powers for Governors, arguably enabling them to override the elected legislature’s will, without being bound by any guiding standards. 

In TN Governor, the two-judge Bench’s approach had been to outline the limited scenarios for the exercise of such discretion; in all other instances, the Governor was to be bound by the aid and advice of the Council of Ministers. The Bench had relied on the principles of democratic accountability to justify the constraints on the unelected Governor being bound by the elected legislature’s will. Those constraints stand removed after the advisory opinion. 

Timelines and “limited mandamus”

The sharpest point of divergence remains the imposition of timelines by the two-judge Bench for the exercise of powers by the Governors and President. As noted previously, these timelines were never meant to be rigid impositions—they were meant as standards for judicial review if an aggrieved state government was to challenge the prolonged inaction in assenting to bills. So, instead of leaving the enquiry into what constitutes an “unreasonable delay” or “prolonged inaction” to the discretion of each successive bench, the two-judge Bench laid down objective standards in the form of timelines. Importantly, the Judgement clarified that these could be breached if the Governors or the President were able to justify the delay. 

The Reference bench, however, has misread the laying down of the standards of judicial review as a “virtual takeover” of the Governor’s office. The anxiety over a “virtual takeover” remains grossly overstated and is based on a misreading of what the timelines were meant to achieve. 

Further, the advisory opinion makes the actions of the Governors and President under Articles 200 and 201 non-justiciable to begin with, save for where the delay was prolonged or unreasonable. In how to deal with such delays, the Bench laid down a more amorphous standard. Having held that no timelines can be prescribed, it instead paved the way for what it called a “limited mandamus” or “limited directions” where the delay by the Governor was found “unreasonable” or constituting “prolonged inaction”. 

No clarification was forthcoming about what this curious writ remedy “limited mandamus” meant. Effectively, it is up to each bench to define the reasonableness of the delay. By doing this, even as it sounded the note of caution against “virtually taking over” the Governor’s function, the Bench in the Reference has retained the Court’s own expansive discretion to interfere in future cases. This new regime of issuing directions based on facts is susceptible to varied directions by a polyvocal court. 

Now, there is no objective or meaningful basis to measure whether prolonged inaction was unreasonable. The consequence of the Reference verdict is that wide discretionary powers—both of Governors and the Court itself—remain unchecked. 

Reserving bill for President in ‘second round’ 

Another crucial point of departure is on the question of whether the Governor can reserve the bill for the President’s consideration in the ‘second round’: that is, after having returned the bill to the assembly and after the assembly having repassed the unamended bill and sending it to the Governor. The two-judge Bench categorically held that if the assembly re-passes the bill without any material changes, the Governor has no option but to grant assent.

The advisory opinion removes this hurdle. It held that the Governor can choose to reserve a bill for the President’s reconsideration, even in the ‘second round’. So, a Governor needn’t reserve the bill for the President in the first instance and may instead choose to return it to the assembly. If the assembly stands its ground, the Governor can still frustrate the legislature by sending the bill to the President in the second round, even though the Governor had the option to do that in the first round itself. 

In its anxiety to not “virtually takeover” the office of the Governor, the Bench arguably paves the way for unelected Governors overriding the legislature’s will. 

The elusive dialogic process

The Reference Bench justified its conclusions through the repeated mention of the fact that the scheme of Articles 200 and 201 envisage a ‘dialogic’ process between the Governor, the President and the state legislature. The Court’s role, apparently, is to merely facilitate this dialogue. It is an open question whether such a description does justice to the reality of the dynamics between the Governor and the government in several states, especially Opposition-ruled ones. 

The premise of the benefits of the dialogic process need not be countered in constitutional theory alone. We will recall that even as the two-judge Bench was hearing the pleas of the state of Tamil Nadu, it put its proceedings on hold and requested the Chief Minister to meet the Governor for a ‘dialogue’ to amicably resolve differences. That endeavour was in vain.

The Court was asked to define the constitutional limits on the discretion of the Governor and President only when the dialogic process had failed. Surely, it is no justification to refuse to perform that task, by relying on the rear-looking argument that the process is meant to be a dialogue in the first place.

It is this circular logic that the Bench in the Reference seems to have endorsed. The two-judge Bench had sought to avoid it by prescribing timelines as guiding, non-binding standards of judicial review. Now, unfortunately, the Reference Bench’s retreat leaves the constitutional crises around assent to bills worse off than what it found.

Pranav Verma is an Assistant Professor (Law) at the National Law School of India University, Bengaluru.