Governor and President’s Powers | Day 5: ‘What can Court do if Governor refuses assent?’: SC asks Union
Presidential Reference on Powers of the Governor and PresidentJudges: B.R. Gavai J, Surya Kant J, Vikram Nath J, P.S. Narasimha J, A.S. Chandurkar J
Today, the Union continued its submissions before the five-judge Constitution Bench on the powers of the Governor and President while granting assent to bills. The Constitution Bench consists of Chief Justice B.R. Gavai and Justices Surya Kant, Vikram Nath, P.S. Narasimha and A.S. Chandurkar.
Solicitor General Tushar Mehta insisted that Article 200 conferred the Governor with an option to withhold assent on bills, without sending them back to the state assembly for reconsideration. He contended that decisions of the Governor and President under Articles 200 and 201 were not justiciable, and cautioned that prescribing timelines or curtailing discretion would amount to judicial amendment of the Constitution.
Yesterday, Mehta argued that the framers had deliberately retained discretionary powers for the Governor and that “withhold” meant the Bill “falls through.” He relied on colonial-era precedents and Constitution Bench judgements to support the claim. The Tamil Nadu Governor Judgement had held that the proviso to Article 200 stated that any withheld bill had to be sent back to the legislature.
On Day 3, Senior Advocates K.K. Venugopal and Abhishek Manu Singhvi, for Kerala and Tamil Nadu, had argued that the Reference was not maintainable and amounted to an intra-court appeal.
Mehta: Withholding assent is a complete constitutional act
Repeating his arguments from yesterday, Mehta submitted that Article 200 vests the Governor with four distinct choices. He argued that the Governor can make a “constitutional declaration” that he is granting or withholding assent, or reserving the bill for the President or sending it back to the legislature. According to him, withholding assent is a stand-alone option. “If he withholds because the Bill is patently unconstitutional or against the nation, the Bill falls through,” he stated.
Mehta maintained that the framers had consciously provided these options, drawing from the Government of India Act, 1935. He added that the ruling in State of Punjab v Principal Secretary to the Governor of Punjab (2023) wrongly curtailed this discretion, and that the Tamil Nadu Governor Judgement also departed from earlier Constitution Bench rulings.
SC: If the Governor sits on a Bill, are our hands tied?
Justice Narasimha said that even though they could not specify a time limit within which a Governor must act on a Bill, “there has to be a way the process works out.” Mehta responded that the text of Article 200 contained no such safeguard and that introducing one would amount to judicial legislation.
CJI Gavai asked, “If constitutional functionaries do not discharge functions without any reason, are the hands of this Court tied?” Mehta accepted the gravity of such a situation but argued that such impasses had to be resolved politically. In practice, he said, “Chief Ministers approach the Prime Minister and the matter is settled.” The Court, he submitted, could not assume the power to create timelines in order to remedy such cases.
Justice Kant pressed further and asked, “If an aggrieved state approaches, and according to you, judicial review is completely barred, what is the remedy?” Mehta reiterated that the Constitution entrusted these functions to Governors and the President as coordinate authorities, and that judicial review could not be used to supervise their discretion. The occasional abuse or delay, he argued, did not justify the Court importing new requirements. “Such impasse is solved,” he said, “but it will not confer jurisdiction to lay down a time limit even if there is justification.”
Mehta: Governor cannot be a showpiece
Mehta turned to the Constituent Assembly Debates yet again to buttress his arguments. He submitted that some members resisted the idea of conferring powers on a nominated Governor, while some others insisted that the office had to serve as more than a ceremonial post. Mahavir Tyagi, Mehta said, warned that “democratic trends are like a wild beast” and required machinery to keep it in check. In his words, the Governor had to remain “guardian of central policy on one side and the Constitution on the other. He is not just a showpiece.”
Pandit Thakur Das Bhargava similarly cautioned against making the Governor a mere dummy, stressing that “he will exercise very wide and significant powers,” particularly in situations when ministries are dissolved or a constitutional vacuum arises. Mehta submitted that Dr. Ambedkar himself had endorsed this approach, noting that the Constitution envisaged the Governor’s discretion being exercised sparingly but necessarily in certain exceptional circumstances, such as when no Council of Ministers is available to advise him.
Mehta: Tamil Nadu Bench misread precedents
Mehta argued that the Punjab Governor and the Tamil Nadu Governor judgements had selectively read precedents to restrain the powers of the Governor. He said that Shamsher Singh v State of Punjab (1974) had been noticed in the Punjab Governor Judgement but only in part. He said that key portions of the judgements had been given a go by.
In Shamsher Singh, a seven-judge Constitution Bench had held that the Governor is not an independent authority but a constitutional head, required to act on the aid and advice of the Council of Ministers. The Court had further clarified that the Governor’s discretionary power must rest on an express provision of the Constitution and cannot be treated as inherent.
He argued that paragraphs 151-152 of Nabam Rebia v Deputy Speaker (2016) paragraphs 151–152 laid down the “real law” on certain discretionary zones and that those paragraphs had also escaped attention in subsequent cases.
In Nabam Rebia, a five-judge Bench held that the Governor’s discretionary powers are confined to situations expressly provided in the Constitution, and that any exercise of discretion beyond the constitutional framework would remain open to judicial review.
Next, he relied on B.K. Pavitra v Union of India (2019) to argue that the Court had recognised the discretionary power of the Court. Mehta stated that the Court had, in crucial respects, misread or ignored the thread of precedent that recognised the Governor’s constitutional choices under Article 200. That, he submitted, was a reason for the Reference and a fuller Bench’s consideration was needed.
Mehta: No textual time limit for Governor
Mehta told the Court that Article 201 contains an express six-month limit for Houses when the President returns a Bill, whereas Article 200 contains no such textual limit. He argued that the Constitution, when it intended time limits, had provided them; where it had not, courts should not read them in. He criticised the Tamil Nadu Governor directions, as they asked Presidents and Governors to record reasons and invited states to approach courts if timelines were not met.
Mehta cautioned against expanding Article 142 to create “deemed assent” or to use it as a vehicle for rewriting the constitutional process. He noted that Article 142 has been used to do complete justice in exceptional cases but insisted that it cannot be used to amend the Constitution or to impose permanent timelines.
Bench: Court has insisted on reviewability of constitutional actions
Mehta argued that decisions under Articles 200 and 201 were legislative acts or plenary constitutional choices. They were largely outside ordinary judicial review. The CJI asked whether the Court’s hands were tied if constitutional functionaries failed to discharge duties, reminding that the Court is “the custodian of the Constitution.”
Justice Kant observed that if interpretative power vests in the Supreme Court, the Court must be capable of trying issues of law that affect constitutional function. Mehta sought to distinguish the interpretation of law from taking over core constitutional decision-making.
The Bench recalled other domains where the Court had insisted on reviewability of constitutional actors. CJI Gavai observed that “all have held that the Speaker is a tribunal and he is amenable to the jurisdiction of this Court. Right from Kihoto Hollohan v Zachillhu (1992), it has been held that he does not enjoy immunity.” Senior Advocate Kapil Sibal interjected to say, “For five years, I have been saying Speaker is a tribunal.” To this, CJI Gavai retorted, “We said we don’t want to create a situation of operation successful, patient dead.”
Kaul: Withholding and returning Bill are independent options
After the Solicitor General, Senior Advocate N.K. Kaul opened for Madhya Pradesh. He focused on the import of the “shall declare” phrase used in Article 200. He said the main body of Article 200 offers three options, each with finality and legal consequence: assent, withholding or reservation. The proviso, Kaul argued, is “more in the nature of preliminary option, as part of consultative process.” He contended that the proviso uses the phrase “as soon as possible” and that the framers had instilled an expediency in that consultative step.
The Constitution does not provide for it,” Kaul told the Bench. He rejected the suggestion that the proviso must be read as complementing the withholding power.
He added that the simple presence of multiple options in Article 200 shows the Governor had a choice and that choosing one course does not render other options otiose. Notably, the Tamil Nadu Governor Judgement had held that the Governor cannot exercise other options after one option has been exhausted. Tamil Nadu Governor R.N. Ravi had referred bills to the President after they were sent back and re-enacted by the state assembly.
Before concluding for the day, Justice Kant asked about the meaning of “shall declare”: whether it required a formal expression or whether it could be an implied act.
The Bench will continue to hear the matter on 26 August.