Supreme Court to hear Presidential reference on President, Governor's powers on July 22

The Hindu

19-07-2025

The Supreme Court is scheduled to hear a Presidential reference on July 22, questioning whether the court can 'impose' timelines and prescribe the manner of conduct of Governors and the President while dealing with State Bills sent to them for assent or reserved for consideration.
A Constitution Bench comprising Chief Justice of India B.R. Gavai, and Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar will hear the matter.
Broadly, the Presidential reference has asked whether judicial orders can dictate by what time and in what manner the President and Governors should function under Articles 200 (which covers the process of grant of assent by Governors to State Bills), and 201 (when Bills are reserved by Governors for Presidential assent) of the Constitution.
'In the absence of any constitutionally prescribed time limit or manner of exercise of powers by a Governor, can time limits be imposed and manner of exercise of powers be prescribed through judicial orders? Can judicial orders impose timelines and manner of exercise of powers by the President under Article 201?' the Presidential reference has asked.
Deemed assent in T.N. case
The President's move to seek clarity under the top court's advisory jurisdiction arises from an April 8 judgment by a Supreme Court Bench of Justices J.B. Pardiwala and R. Mahadevan, in a petition filed by the Tamil Nadu government challenging the State Governor's delay in clearing 10 re-passed Bills, and his subsequent action to reserve them for consideration by the President.
The two-judge Bench had ruled that the Governor's action was illegal. This had led to the default cancellation of the President's decision to assent to one of the 10 Bills, while rejecting seven. and not considering two others.
The verdict, authored by Justice Pardiwala, had invoked Article 142 of the Constitution to deem that all 10 Bills had got assent.
The reference has now sought the court's opinion on the very 'contours and scope' of Article 142.
Questions scope of Article 142
'Can the Constitutional powers of the President/Governors be substituted by a judicial order exercising Article 142? Is Article 142 limited to matters of procedural law or does it extend to issuing directions contrary to or inconsistent with existing substantive or procedural provisions of the Constitution?' it asked.
Indirectly questioning the validity of the 'deemed' assent, the reference has asked whether a law made by a State Legislature could even 'be considered a law in force without the assent of the Governor'.
'Are decisions of the Governor and the President under Articles 200 and 201, respectively, justiciable at a stage prior to even the Bill in question becoming a law? Is it permissible for the courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?' the Presidential reference queried.
It said that the 'concept of deemed assent' of the President and the Governor, introduced in the judgment, was alien to the constitutional scheme, and worked to fundamentally circumscribe the power of the President and Governors. Vice-President Jagdeep Dhankar had called Article 142 a 'nuclear missile against democratic forces'.
'Governor violated Constitution'
In his judgment, Justice Pardiwala had explained that Article 142 was invoked only to do complete justice in public interest for the people of Tamil Nadu.
'We are not exercising our power under Article 142 in a casual manner or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor — first in exhibiting prolonged inaction over the bills; secondly in declaring a simpliciter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round — were all in clear violation of the procedure envisaged under the Constitution,' the judgment had reasoned.
Questions two-judge Bench ruling
The Presidential reference has also raised questions about a two-judge Bench of the Supreme Court pronouncing judgments on substantial questions of law regarding the interpretation of the Constitution without referring it to a minimum five-judge Bench as prescribed under Article 145(3) of the Constitution.
The reference has also touched on the basics of Article 200, asking the court to clarify the constitutional options before a Governor when a Bill is presented to him under Article 200.
The April 8 judgment had clearly specified that a Governor has three choices in this situation: assent, withhold assent, or reserve a Bill for consideration by the President. The court had underscored that a Governor could not indefinitely delay a decision on a Bill as it represented the 'will of the people'.
Again, the Presidential reference sought the court's opinion on whether a Governor was bound by the aid and advice tendered by the Council of Ministers under Article 200. The judgment had clearly stated that Governors, as a general rule, must abide by the aid and advice of the State Cabinet under Article 200 while deciding on Bills.
'Bar to judicial review'
The reference has raised doubts as to whether the 'constitutional discretion' of Governors and the President under Articles 200 and 201, respectively, was even justiciable. It maintained that there were 'conflicting judgments' of the Supreme Court.
'Is Article 361 of the Constitution [immunity given to President and Governors from legal action while in office] an absolute bar to judicial review in relation to the actions of a Governor under Article 200?' the Presidential reference asked.
Justice Pardiwala had dealt with this question while referring to the court's own past judgments. 'The immunity enshrined in Article 361 of the Constitution does not preclude or prohibit the courts in any manner from looking into the actions of the Governor which by necessary implication would include his actions under Article 200 as well,' the Supreme Court had held in its April 8 judgment.
The Presidential reference is dated May 13, the last working day of Justice Sanjiv Khanna as Chief Justice of India. The responsibility has now fallen to the current Chief Justice Gavai to form a Constitution Bench to consider the Presidential reference.