Governor and President’s powers | Judgement Summary

Maintainability of the reference

Parties opposing the Reference had argued that its timing—a month after the Tamil Nadu Governor—made it evident that it was an appeal in disguise. Further, they claimed that the Reference aims to undo and set aside the Judgement in Tamil Nadu Governor. They argued that a Presidential Reference cannot overrule a judgement of the Court. 

The Constitution Bench upheld the maintainability of the Reference. The Court noted that there have been 15 references in the past, all of which were hooked on a factual matrix that was prevalent at the time. The Presidential Reference on the powers of the Governor and the President had a unique character as it dealt with constitutional functionaries, which the Court described as a “functional reference”. Further, the advisory opinion notes that Tamil Nadu Governor had created a “state of doubt” and “confusion” as it varied from decisions rendered by larger benches. Therefore, there was an “institutional responsibility” of the Court to provide an authoritative opinion. 

Addressing arguments that the Reference was an appeal that seeks to overrule Tamil Nadu Governor, the opinion stated that an advisory opinion can “overrule, if necessary”, according to In re: Special Courts Bill (1978). However, it clarified that the current Reference does not require the Court to vacate or set aside Tamil Nadu Governor. It added that the Attorney General and the Solicitor General had, in fact, clarified that the Reference was meant to settle the law for the “future” and not overrule existing precedents. 

Lastly, the Court held that a reference, if found maintainable, can still be returned unanswered. In doing so, the Court stated that it will not answer Questions 12 and 14 as they were irrelevant. These questions pertained to the composition of benches when interpreting substantial questions of law and the jurisdiction of the Court to hear cases between the states and the Union. Question 13, concerning the power of the Supreme Court under Article 142, was described as “broad” and impossible to answer in a “comprehensive and definitive manner”. 

Options available to Governor 

The Union government had argued that a Governor has four options when presented with a bill: grant assent, reserve it for the President, withhold assent, or withhold it and send it back to the legislature for reconsideration under the first proviso to Article 200. They had argued that the use of the phrase “may return the bill for reconsideration” suggests that the first proviso is separate from the act of withholding assent—the Governor is not mandated to send the bill back every time it is withheld. 

States opposing the Reference had argued that there are only three options: grant assent, reserve it for the President, or withhold it and send it back to the legislature. In simple words, the first proviso qualified the act of withholding assent. Each time an assent is withheld, it should be sent back to the legislature. 

The Court found the states’ argument in tune with the “constitutional ethos” and the “constitutional structure”, agreeing that the Governor has three options. The Bench concluded that the proviso was not an exception but a way to limit the options of the Governor. Such an interpretation, the opinion said, would result in a “dialogue process” between two institutions. 

Relying on several precedents, the Court held that an interpretation which goes against the principle of federalism—which it acknowledged as a basic feature of the Constitution—and whittles down the power of the states cannot be sustained as “dialogue, reconciliation and balance, and not obstructionism is the essence of constitutionalism” in the Indian Republic. 

However, in a major departure from Tamil Nadu Governor, the judges found that a Bill which was sent back to the legislature for reconsideration can be reserved for the President. In Tamil Nadu Governor, the Court had held that a Governor has no option but to grant assent to a Bill once a legislature has reconsidered it and sent it back. 

The advisory opinion, on the other hand, states that the Governor can exercise any of the two options: grant assent or refer it to the President. Notably, in Tamil Nadu Governor, the state had argued that the Governor had reserved reconsidered bills for the President, resulting in an indefinite delay. The opinion explained that the options were necessary as a safeguard against the “tagging of amendments” which a legislature may insert when sending a bill back. It is the “constitutional function” of the Governor to decide whether the Bill “ought to be assented to, or if its amended form affects such inter-state, or federal aspect of the country, requiring the attention of the President.” 

Discretion of the Governor 

The Union government and states favouring the Reference had argued that the Governor enjoys discretion under Article 200. Meanwhile, the parties opposing it had stated that the Governor is a formal head and was incapable of acting except on the aid and advice of the Council of Ministers. They had argued that the Governor only has discretion when it comes to reserving a Bill for the consideration of the President. 

The opinion found that the Judgement in Nabam Rebia had conferred discretionary powers on the Governor. Further, the judges categorically noted that the view in Tamil Nadu Governor was not the “right” one. Relying on precedents, the opinion held that the Governor has discretion to act in circumstances which are not explicitly stated in the Constitution. 

The opinion went on to hold that the Governor must exercise discretion under Article 200. It grounded the reasoning in the second proviso of Article 200 which deals with the procedure of reserving a bill for the President. The Court stated that the Governor is the sole authority when it comes to reserving a bill, and if such an act is limited by the aid and advice of the Council of Ministers, it would disable the President and the Governor from their duty to “protect and defend” the Constitution. 

It added that the Council of Ministers have a role to play in the passing of a bill. It would be unlikely that they would advise the Governor to reserve a bill to the President. The Bench clarified that the Governor cannot simply withhold a Bill without returning it to the legislature. Therefore, any discretion on reserving a bill for the President or returning it to the legislature does not mean that the Governor has “unfettered powers”. In the Court’s opinion, confining the Governor and President to a “perfunctory role” which is comparable to the Crown of England “oversimplifies” the complex scheme of the Constitution. 

Timelines on discharging functions 

One of the key questions in the Presidential Reference was concerned with the prescription of timelines. In Tamil Nadu Governor, the Court imposed timelines on the Governor and the President to assent to bills. The Union and states favouring the Reference had argued that the Court cannot implicitly read a timeline within Article 200. The parties opposing the Reference had stated that the question of timelines was settled in Tamil Nadu Governor, arguing that the phrase “as soon as possible” under Article 200 conveyed a sense of urgency. 

The Court noted that the only “temporal aspect” under Article 200 is where the Governor is required to return a withheld bill “as soon as possible”. The other instance is where the President instructs the Governor to return a bill to the legislature with her comments—in this situation, the state legislature is bound to reconsider the bill based on the President’s comments and return it within six months. The Court held that the phrase “as soon as possible” cannot translate into the strict imposition of timelines. 

The Court then held that Tamil Nadu Governor erroneously imposed timelines, based on a misreading of Keisham Meghachandra Singh v Speaker, Manipur Legislative Assembly (2020). In that case, a timeline was imposed on a Speaker to decide disqualification petitions. The advisory opinion stated that the Speaker has a quasi-judicial function which cannot be “equated with the gubernatorial function.” 

Further, the Court held that the reliance on circulars by the Home Ministry in Tamil Nadu Governor to impose a timeline cannot be sustained. The Home Ministry’s circulars “cannot be incorporated by way of judicial interpretation in such a manner, so as to apply as a constitutional fetter.” 

Critiquing Tamil Nadu Governor, the Court found that the Judgement prescribed a one-size-fits-all timeline which ignores the nature and complexity of a bill. 

Deemed assent 

After concluding that there is no prescribed timeline under Articles 200 and 201, the Court stated that there cannot be a “deemed assent” to a bill. As there is no timeline, there cannot be an expiry of the timeline. In turn, there cannot be a deemed assent due to the expiry of the said timeline. 

While Tamil Nadu Governor stated that the expiry of timeline is just to open doors for judicial review and does not automatically deem assent, the advisory opinion takes note of the Judgement’s reliance on Article 142 to deem assent. This, the opinion stated, erroneously opens the doors to a judicial remedy that is contrary to the Constitution. It held that the usurpation of the Governor’s function was antithetical to the spirit of the Constitution and the doctrine of separation of powers. It added that Article 142 cannot supplant constitutional provisions. 

Justiciability of the functions of the Governor and President 

The Court did not agree with the Tamil Nadu Governor holding that all actions of the Governor—assent, reservation and return of bill—are justiciable. The advisory opinion stated that the dialogic process under Article 200 and 201 is not adjudicatory or an exercise of executive power, so as to make it subject to judicial review. 

Such an interpretation would become a “ground of challenge”, where parties could contest a substantive grant of assent, arguing that it should have been reserved for the President or sent back with certain comments. In simple terms, to assess if a bill should be granted assent or not would require a consideration of the text of a bill before it becomes a law. For instance, the opinion states, if a Bill is reserved for the President, a judicial review would require the Court to ascertain whether it affects the powers of the High Courts, which is a ground under which the Governor can reserve the bill.

The Court held that such a judicial review is “unheard of” and “unfathomable”, and would “shatter the permeable walls that maintain” the separation of powers. While judicial review is a part of the basic structure, it is “not an unbridled scope that can negate or destroy the separation of powers doctrine.” The only route where a bill can be considered by the Court before it becomes a law is through a Presidential Reference under Article 143. Further, it clarified that the President is not required to seek the advice of the Court under Article 143 on every occasion that a bill is reserved for their consideration. 

Limited judicial intervention 

The Court then addressed concerns relating to the indefinite withholding of bills. The advisory opinion acknowledged that an unchecked discretion to impede the legislative process would be against the constitutional spirit. Therefore, the Court held that prolonged, unexplained, indefinite inaction on bills will invite limited judicial scrutiny. It held that constitutional courts can exercise limited judicial review if the Governor “chooses not to act under Article 200” and frustrates the legislative process. 

In such an instance, the Court can grant a “limited direction to the Governor to take action.” This can be done by scrutinising records on what has transpired and passing a reasonable direction to act within a time limit without making any observations on the merits of the discretion enjoyed by the Governor. 

It added that while the Governor has complete immunity under Article 361, that provision does not preclude the Court from examining the “validity of the action.” The limited judicial review cannot be overcome under the pretext of Article 361 as the “constitutional office of the Governor is definitely subject to the jurisdiction of the court.”