Governor and President’s Powers | Day 8: Governor part of legislature, but exercises no legislative power, the states of Tamil Nadu and West Bengal argue

Singhvi: Indefinite withholding of bill would “kill” it 

Singhvi started his submissions by pointing out that a bill cannot “fall through” when a Governor simply withholds assent i.e. without sending the bill back to the legislature for reconsideration. He pointed out that “falling through” is not a constitutional category and the Union relied on an incorrect interpretation of precedents to argue the contrary. 

He referred to the first proviso to Article 200, which states that a bill withheld by the Governor “may” be sent back to the legislature “as soon as possible”. The process of withholding, returning, reconsideration, repassage and assent was a “complete code in itself”, according to Singhvi. The Tamil Nadu Governor Judgement had stated that the process of returning a bill back for reconsideration is mandated if the Governor chooses to withhold assent. Singhvi submitted that a bill would only “fall through” if the legislature does not repass the bill. 

CJI Gavai inquired about the implications if a Governor chooses to withhold assent from a bill without returning it to the legislature. He asked what would happen to a bill under such a scenario. Singhvi replied that Article 200 clearly directs the Governor to either return the bill or reserve it for the President. He referred to Union of India v Valluri Basavaiah Chowdhary (1979) and submitted that a bill “falls through” only if the first proviso is followed. He then rejected the Union’s reliance on State of Bihar v Kameshwar Singh (1952) arguing that the judgement never dealt with the concept of a Bill “falling through.” When CJI pressed him further on whether a second return of a Bill was permissible, Singhvi answered categorically, “No. At any stage, unless the proviso is followed, it can fall through, but it does not mean the Governor is given an unknown power to withhold simpliciter.”

Singhvi warned that carving out a separate head of withholding would elevate the Governor to a “super-legislature, a super-Chief Minister.” Simply keeping a bill in limbo, he said, amounted to killing it — a power constitutionally reserved to the Cabinet Government through dissolution or lapse under Article 196. The only recognised discretion was under the second proviso to Article 200, which deals with the reservation of the bill for the President’s consideration.

Singhvi: Decisions of Governor and President open to judicial scrutiny

Singhvi submitted that the Court has consistently exercised judicial review against offices that have been conferred the “widest possible discretion” under the Constitution. He relied on Kihoto Hollohan v Zachillhu (1992), where the Court held that the decision of the Speaker of a legislative assembly is justiciable despite them being vested with final authority under the Tenth Schedule to adjudicate disqualification petitions. He then argued that the immunity granted to the Governor and President under Article 361 does not shield their official acts from judicial scrutiny. He observed that the President and Governors enjoy immunity from being personally answerable. He contended that the same principle applies under Article 200, and the mere presence of discretion cannot oust judicial review. 

He added that the Governor’s actions or inactions could be challenged like any other executive decision—on all available grounds, including mala fides. Immunity did not mean that mala fide conduct went unchecked. “Even in pardons,” he pointed out, “judicial review has been exercised wholesale..”

Reading extensively from S.R. Bommai v. Union of India (1994), Singhvi argued that judicial review had been recognised even for proclamations of President’s Rule under Article 356. 

Singhvi: Governor has no legislative power

Singhvi argued that the Governor has no legislative power, despite being part of the legislative process. CJI Gavai intervened, “He is also a part of the legislature… that’s their argument.” Singhvi responded that “Any argument by him exercising legislative power is constitutionally fallacious.” Referring to Nabam Rebia v Deputy Speaker (2016), he noted that the only exception was promulgation of ordinances under Article 213.

Singhvi objected to the Union’s claim that assent decisions were non-justiciable. “Even grant of assent can be subjected to judicial review,” Singhvi said, but only after the Bill became law, and only on vires grounds.

Singhvi: Indefinite delay on bills can be challenged as executive action 

Singhvi submitted that the deletion of a specific six-week limit in the draft Constitution and the retention of “as soon as possible” did not preclude courts from prescribing limits in contemporary circumstances. 

The Bench asked whether Parliament or courts could fix a definite limit. Singhvi responded that courts had intervened even without explicit timelines, citing Keisham Meghachandra Singh v The Speaker, Manipur Legislative Assembly (2020), where a three-month limit was imposed. “Just because the founding fathers did not envisage distortion today,” he said, “does not mean your Lordships cannot check it.”

Singhvi referred to A.G. Perarivalan v. State of Tamil Nadu (2022). He highlighted that the Supreme Court exercised its powers under Article 142 to release a convict in the Rajiv Gandhi assassination case, citing the Tamil Nadu Governor’s prolonged inaction on the convict’s petition for remission, which was approved by the state cabinet. Justice Vikram Nath asked what would happen if timelines were not followed. Singhvi said aberrations might occur, but general guidelines were constitutionally justified. CJI Gavai and Justice P.S. Narasimha questioned whether the Court could step into the Governor’s shoes and whether remedies lay in individual cases. Singhvi submitted that repeated inaction called for structural intervention, not case-by-case relief.

He produced charts showing delays in Tamil Nadu and Kerala, including one Bill pending for 1,257 days. He argued that reliance on “individual cases” would leave the problem unresolved. He submitted, “Too little, too late… it becomes a pocket veto, killing of Bills, a super-Chief Minister.”

Singhvi: No obligation on President to seek advice of Court on a reserved bill

Singhvi then addressed the eighth question of the Reference, which asked whether the President is required to seek the advice of the Supreme Court when a Governor reserves a Bill for the President’s assent. He submitted that there is no mandatory obligation on the President to approach the Court under Article 143. 

Singhvi then turned to questions 10, 11 and 13. These concerned with the usage of Article 142 to exercise the powers of the President or Governor; whether a law passed by the state legislature is in force without the Governor’s assent, and the scope of the Supreme Court’s powers when exercising Article 142. Notably, the Tamil Nadu Governor Judgement had exercised Article 142 to deem assent on 10 bills, effectively enforcing them as law without a formal assent from the Governor. Singhvi submitted that Article 142 had been misunderstood. He noted that it was one of the few Articles passed without any controversy in the Constituent Assembly.

CJI Gavai asked whether the Court could lay down a straightjacket formula for exercising the powers of the Governor under Article 142. Singhvi responded that the Court may have an implicit understanding of the limits. The real question, he stated, is whether any fetter exists on Article 142 itself.

Singhvi: No bar on states to seek relief under Article 32

On questions of jurisdiction, Singhvi clarified that challenges could be brought by states under Article 32. He argued that Article 131, which deals with original suits between the states and the Union, did not bar such relief because Governors were neither the Union nor the State Government. Otherwise, states would be remediless, he stated. 

Concluding his submissions, Singhvi reiterated that constitutional balance would be destabilised if Governors or the President were treated as immune to judicial review. “It will be antithetical to separation of powers,” he warned.

Sibal: Governor only bound by council of minister

Sibal opened his submissions by asking whether the nature of power exercised by the Governor is legislative or executive. He pointed out that the President always acts on the aid and advice of the Cabinet, and the Governor is equally bound by the Council of Ministers. He argued that functions like recommending President’s Rule under Article 356 are recommendatory in nature, with the Union Government, and ultimately the Court, being the final authority. Similarly, he said, that even powers to grant pardons under Article 161are to be exercised on ministerial advice. In that backdrop, Sibal argued that it would be an “unacceptable proposition” for the Court to hold that the Governor can withhold assent and thereby thwart the will of the legislature. If a law passed under the State List, embodying the sovereign will of the people, he submitted, is negated by a Governor withholding assent, then “for the first time in history, Mylords will hold that the will of the people need not be implemented.”

Sibal: Governor cannot hold back assent on “whim”

Turning to Article 200, Sibal insisted that the Governor has only two legitimate options- to return the Bill with a request for reconsideration or amendments, or to reserve it for Presidential consideration. He cannot indefinitely withhold assent. Even in returning a Bill, the Constitution requires him to act “as soon as possible,” which Sibal argued must mean “forthwith”. A Governor, he said, cannot hold back such legislative measures on his own whim. Justice Nath asked whether sending a bill to the President involves aid and advice. Sibal clarified that the Governor must apply his mind as to whether the Bill is repugnant, but this does not create an independent discretionary space. The very structure of Article 200, he argued, presumes constitutional amity and cooperation.

Sibal: Governor may misuse discretion if Court endorses it

Sibal rejected the Union’s suggestion that Article 200 confers discretion. He pointed out that the term is only in Article 163, which states that the Governor can exercise discretion only under the circumstances prescribed in the Constitution. Even there, he argued, the scope is circumscribed. He cited the Court’s decision in Nabam Rebia, where the Governor’s claim to act in his individual judgement was squarely rejected. He argued that Article 361’s true import is to protect Governors from personal attack, not to shield unconstitutional actions. He further submitted that no organ can cause a breakdown of constitutional machinery. Sibal warned against loose use of the term “discretion”. He stated that the Governor may misuse it if courts casually endorse it. Justice Nath asked whether a Governor’s declaration reserving a Bill for the President could be challenged. Sibal replied it cannot, but that does not create an unbridled veto.

The Bench will continue to hear the matter tomorrow.