Governor and President’s Powers | Day 9: Executive heads cannot exercise legislative powers, states opposing the Reference argue

Sibal: If there is a conflict, Governor must return the bill to the legislature 

Sibal submitted that while in theory, the President could withhold assent in case of entrenchment, violation of fundamental rights, or lack of legislative capacity, in practice, they were typically challenged in courts. 

Sibal stated that only in the rarest of rare cases can the Governor decide not to act. CJI Gavai questioned whether conflict with central legislation would necessitate the Governor to withhold assent to a state bill. Sibal responded that there is always a presumption of constitutionality.

Justice Surya Kant probed further. He questioned whether the Governor is required to apply his mind to determine if such a conflict exists. Sibal clarified that a formal declaration was not necessary. The act of sending back a bill indicated that assent was withheld. He stressed that the contours, such as reasons for sending the bill back, are not necessarily subject to judicial review. He further explained that if the legislature disagrees with the Governor and the bill reaches the President, it must ultimately be passed if the President grants assent. There was no need to grant Governors discretionary powers for the same. “Let us not interpret the Constitution to make it unworkable,” he said.

Sibal: Constitution stresses immediacy

Sibal submitted that phrases like “as soon as possible” and “forthwith” were evidence of the urgency embedded in the Constitution. He warned that granting the Governor blanket discretion could render governance unworkable. Referring to Government of NCT of Delhi v Union of India (2023), he submitted that delays were justified only in extraordinary situations, like natural disasters. 

CJI Gavai added that similar considerations could arise in law and order crises. Sibal, however, disagreed. He warned of consequences if the Governor withholds a bill on grounds of unconstitutionality and a state passes it again. Sibal questioned who would defend the Governor in the event of litigation. 

Referring to S.R. Bommai v. Union of India (1994) and Article 163, Sibal stressed that the Governor generally must act with the aid and advice of the Council of Ministers. He can exercise discretion only when the Constitution permits. He also relied on Nabam Rebia v Deputy Speaker (2016) to clarify that there are only three situations where a Governor may exercise personal discretion: 

1. when mandated by a provision of the Constitution itself, 
2.  when the Governor is assigned functions under enactments made under the Constitution that require independent discretion, and 
3. where the Governor is impliedly required to act in his own discretion. 

Outside these situations, Article 200 does not confer discretionary power on the Governor. CJI Gavai observed that Article 371H provides some discretion. Sibal, however, responded that it is limited to maintenance of law and order, and cannot extend to general legislative assent under Article 200.

Sibal: Comparing Articles 111 and 200

Justice Narasimha questioned whether the Court was being asked to “supply” to the constitutional text to hold that the President has no option but to give assent. Sibal replied that refusal is impermissible since that is the only way permitted by the constitutional scheme. 

Justice Vikram Nath pointed out the contrast between Articles 111 and 200. The former provides that the President “shall not withhold assent” if a bill is repassed. Article 200 allows a Governor to either assent, withhold assent, or reserve a bill for the President’s consideration. 

Sibal submitted that Article 200 was framed in such a way because nobody imagined a situation where the Governor would delay granting assent for such a long time. He argued that the makers of the Constitution could not have contemplated such an impasse. Therefore, when the language is silent, interpretation must ensure workability.

Sibal said that even if one assumes that when a Bill is placed before the President, there is some element of space for the Union Government to advise against assent, the only consequence of such a refusal would be litigation. “Does the Constitution contemplate such a situation?” he asked rhetorically.

Sibal added that the Constitution is a “living document” which must provide answers to questions of governance. Therefore, disputes on governance must be resolved “constitutionally and not over a cup of tea.” Justice Narasimha questioned what prevented the Governor from referring a bill directly to the President?” Sibal answered that once the legislature has passed a Bill, the Governor’s only role is to clear it. The Union Parliament may have its own views, but the Governor cannot stand in the way of legislative will.

Sibal stressed that this was a matter of immediacy, where no open-ended discretion could be tolerated. He added that if the Governor failed to act, the Court had no option but to “make an architecture” ensuring that the will of the people was not subjected to the “whims and fancies” of an unelected head of State.

Sibal: Repugnancy, judicial oversight, and legislative capacity

Sibal elaborated on Article 254, observing that Parliament has a constitutional route to address repugnancy. He added that bills lacking legislative competence may still be granted assent and corrected later through judicial or parliamentary processes. He noted hypotheticals involving foreign policy, cautioning that courts cannot address speculative situations. Justice Kant emphasised that the proviso to Article 254 serves as a secondary filter, independent of the President’s assent. 

Sibal concluded that the President must give assent and any litigation arising from repugnancy or constitutional capacity will follow judicial processes. The Governor cannot act as a bottleneck or exercise personal discretion beyond constitutional mandates.

Subramanium: The Cabinet system imposes limits on the Governor

Subramanium, appearing for the State of Karnataka, submitted that the Cabinet form of government is the foundation of the Constitution and that the Governor is only a titular head. He submitted that the reference seriously encroaches upon an acknowledged principle that the “democratic organ which enjoys executive power is the cabinet form of government.” It is in this form of governance that the role of the Governor or President must be determined, he said. He recalled Dr. Ambedkar’s words in the Constituent Assembly that conferring any plenary discretion on the Governor would undermine the collective responsibility of the House. 

He categorised gubernatorial functions into executive, neo-legislative and those explicitly nominated for discretion and stressed that high constitutional functionaries enjoying plenary powers are “completely antithetical to the Constitution.” Referring to Kesavananda Bharati v State of Kerala (1973) and Rai Sahib Ram Jawaya Kapur v State of Punjab (1955), he argued that real powers vest in the Cabinet, and that India’s Constitution, though federal in structure, is modelled on the British parliamentary system where executive policy is formulated by the Cabinet so long as it enjoys the confidence of the legislature.

Subramanium: Aid and advice are the constitutional mandates

Subramanium then turned to the centrality of ministerial advice in all gubernatorial action. The aid and advice, he said, was crucial as neither the President nor the Governor, he said, participates in the affairs of the House. When a Bill is returned or a message is sent, it is always on the advice of the Council of Ministers. He cited A. Sanjeevi Naidu v State of Madras (1970) to reiterate that “the government means the Governor aided and advised by his Ministers”

He referred to Articles 77 and 166, and submitted that the rules of business themselves establish the link between the Governor and the executive, ensuring constitutional accountability. Drawing a contrast between the President and the Governor, he pointed out that while the President is subject to impeachment, the Governor merely holds office at the President’s pleasure and bears no personal responsibility. Ordinances, too, as explained in Rustom Cavasjee Cooper v Union of India (1970), are not a matter of presidential discretion but are promulgated solely on the satisfaction of the Council of Ministers.

According to Subramanium, the Cabinet form of government is part of the Constitution’s Basic Structure. Therefore, any theory of implied discretion of the Governor would amount to its abrogation. Referring to U.N.R. Rao v Indira Gandhi (1971), he reminded the Court that even after the dissolution of Parliament, the Council of Ministers must continue because their aid and advice were central to the constitutional democracy. A change in the form of government would be unconstitutional. Subramanium further submitted that though the words “discretion” and “satisfaction” occur in the Constitution, they are never meant to be personally exercised. The rules of business are themselves products of ministerial advice.

Sharma: Governors are not Viceroys

Sharma, appearing for the state of Himachal Pradesh, argued that the Presidential Reference seeks to reopen settled questions of law and raises issues on the foundations of constitutional governance. 

He identified four areas of focus: federalism and state autonomy, the constitutional role of the Governor and the President, justiciability and discretionary powers. He noted that the doctrine of separation of powers is not abstract but lies at the very core of the Constitution. The legislature, he said, is sovereign in law-making, and courts are the final arbiter of interpretation, ensuring the survival of Indian democracy, unlike other nations that became independent at the same time. 

Stressing that the Constitution grants no discretion to the President or the Governor, he recalled that provisions in the draft which permitted delay in assent were consciously deleted by the framers to prevent obstruction. 

Like others, Sharma reiterated that the President and Governors could act only on the advice of the Cabinet and cannot alter a single line in their addresses. “Our Governors are not Viceroys,” he declared, stressing that they have no independent legislative role

Sharma explained that even ordinance powers were not plenary legislative powers but short-term measures subject to legislative approval at the earliest opportunity. Any claim of discretionary gubernatorial power would undermine state autonomy. He added that states must not be belittled by gubernatorial obstruction or reduced to municipalities. “Legislatures are positioned in a manner which has to be protected and respected,” he concluded.

The Bench will continue hearing the case on 9 September.