About The Author
This article is written by Ananditha S R ,4th year BA LLB student at Government law college Thiruvananthapuram .
The Hon’ble Supreme Court in Re: assent, withholding or reservation of bills by the governor and the president of India1, has settled a constitutional dispute regarding the powers of the Governor and President under Article 200 and 201 of the India Constitution, putting an end to the tussle that prevailed between the Governor and the State Government especially in the opposition ruling States.
In the situation of Constitutional deadlock that resulted from the inaction on the part of the Governor by withholding the bills presented before it for an unexplained and prolonged period of time, the State of Tamil Nadu approached the Hon’ble Supreme Court to have a solution to this Constitutional deadlock. A division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan gave its judgement in State of Tamil Nadu v. Governor of Tamil Nadu1, wherein the Hon’ble Court held that a prolonged and unexplained delay in giving assent was against the Constitutional principles. The Hon’ble Court fixed certain timelines within which the Governor and the President had to exercise its discretion conferred under Article 200 and 201.
In exercise of powers conferred under Article 143(1) of the Constitution of India, the President of India has on 13th May, 2025 referred fourteen questions relating to interpretation of powers of the Governor under Articles 200 and 201 along with certain ancillary questions for opinion of the Supreme Court. The reference was heard by a Constitution bench headed by the Chief Justice of India, Justice B R Gavai. This presidential reference was an aftermath of the decision rendered by the division bench of the Hon’ble SC inState of Tamil Nadu v. Governor of Tamil Nadu3.The Hon’be SC pointed out that unlike the previous 15 Presidential references, the present reference was in the nature of a “functional reference”, which is fundamentally different from the earlier references. It strikes at the root of the continuation of our republican and democratic way, and the Constitution’s federal character. The reference raises significant questions of public importance on Constitutional law relating to the interpretation of Articles 200, 201, 142, 143, 145(3) and 361.
The reference raised 14 queries. They were answered by the Court as follows :
1) Constitutional options before the Governor upon the presentation of a Bill
Article 200. Assent to Bills
When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the . House or Houses shall reconsider the Bill
accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
The Hon’ble SC observed thus: “the first proviso is not an exception that creates a fourth option, it is rather a qualification to the substantive part of Article 200, limiting the full play of the word “withholds” employed therein.”
Interpreting Article 200, Hon’ble Court held that this Article grants three options to the Governor when a bill is presented before him/her:
● Assent to the bill
● Reserve the bill for the consideration of the President
● he may withhold assent therefrom and return the Bill to the legislature with comments,
and if it is passed with or without amendment, he shall not withhold assent therefrom,
which can be exercised only if the Bill is not a Money Bill.
This interpretation taken by the court binds the first proviso to the substantive part of Article .This qualifies and limits the power of the Governor to “withhold the bill”. This prevents the withholding of the bill simpliciter by the Governor and thus the interpretation aligns with the Constitutional ethos.
“The first proviso which repeats the verb ‘withhold’ indicates that the word “withholds” in the substantive part is not without qualification.”
The second proviso limits and qualifies the word “assent”, which impliedly limits the option of the Governor to even withhold and return the Bill but obliges the Governor to mandatorily reserve the Bill for consideration of the President in case the Bill derogates from the power of the High Court. The Hon’ble SC interpreted both the provisos as limiting and qualifying the powers of the Governor under Article 200 rather than creating further options.
As to the nature of Indian concept of Federalism, the Court observed that Federalism in India does not resemble neither the strict separation of powers envisaged in the US Constitution nor the unitary system followed by the United Kingdom. No one description – federal, quasi federal, federalism with unitary bias, pragmatic federalism, cooperative federalism or asymmetrical federalism, captures the nature of Indian federalism in its entirety, but each contributes to its unique feature. To permit the Governor to withhold a Bill without following the dialogic process in the first proviso to Article 200, would be a derogatory to the principle of ‘Federalism’ envisaged in the Constitution of India.
2) Whether the Governor is bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India
The Hon’ble SC held that, the Governor is conferred with three options, as discussed in the first question, i.e. grant assent, withhold return the bill for reconsideration or reserve the bill for reconsideration of the President. The Governor has the power to choose any of these options ‘in his discretion’, having due regard to the aid and advice of the council of ministers and his duty towards protecting and defending the Constitution of India. The Hon’ble Court did not approve the findings of the division bench in State of Tamil Nadu v. Governor of Tamil Nadu3, on this matter. The Court held that the conclusion arrived at in State of Tamil Nadu (supra) that the only instance that contemplates discretion of the Governor was the second proviso to Article 200 was based on the partial reading of Samsher Singh v. State of Punjab4 and Anr5 and therefore cannot be relied upon as good law. The Hon’ble Court read discretion into the ‘function’ of the Governor.
“Our usage of the word ‘function’ is done so deliberately, in contradistinction to ‘power’ because a function carries with it, implicitly, a constitutional obligation.” Therefore, in exercise of his ‘function’, the Governor exercises his ‘discretion’ in certain circumstances, which carries with it an obligation to act in accordance with the principles of the Constitution.
3) Options of the Governor under Article 200 after the Legislative Assembly presents the
Bill to the Governor after reconsideration under the first proviso
The Hon’ble SC Court dealt with the options available to the Governor after he had exercised his discretion of withholding his assent and sent the bill to the State legislature with a message for reconsideration. When the bill is returned to the Governor, he has the following two options:-
● Grant his assent
● Refer it to the President for his consideration.
In coming to this conclusion, the Court interpreted the phrasing “shall not withhold assent therefrom” in the first proviso. The second proviso only sought to curtail the option of ‘withhold the assent and return the bill with a message to the legislature for reconsideration’. This power to reserve a Bill for the President’s consideration, is irrespective of whether the Bill is returned by the Legislature in its amended or unamended form.
“Therefore, we are of the firm opinion that the reading of Article 200, which recognises both options – to grant assent, or reserve the Bill for the President – further strengthens, and increases the potential for the dialogic and consultative process that our Constitution values at its core, rather than retracting from it.”
4) Re: Questions 5, 7, 10 and 11 relating to the prescription of time limits on the Governor
and the President for exercising their discretion under Articles 200 and 201, and the
issue of deemed assent
The Hon’ble Court held that the phrase “as soon as possible” cannot be interpreted as to impose a strict timelines on the Governor for the exercise of his discretion under Article 200.
“That the Constituent Assembly chose, at one place (i.e., the proviso to Article 201) to explicitly impose a definite timeline (for the Legislature to reconsider the Bill so returned), but no such imposition is made on the other functionaries of the Governor or the President, is significant. Implicit in this distinction, is also the institutional respect that the Constitution contemplates, and affords, to the constitutional functionaries of the Governor, and President.”
The Hon’ble Court did not approve the timelines laid down for exercising the discretion conferred on the Governor under Article 200, in State of Tamil Nadu v. Governor of Tamil Nadu, the failure of which would render the inaction of the Governor subject to judicial review. The court held that Articles 200 and 201, has to be interpreted in such a way as to provide “a sense of elasticity, for constitutional authorities to perform their functions, keeping in mind the diverse contexts and situations”. The imposition of timelines would be strictly contrary to this elasticity. As to the concept of ‘deemed consent’, the Court held that deeming clauses are absent in Article 200 and 201. The concept of deemed assent of pending Bills by the Court in exercise ofjurisdiction under Article 142, is virtually a takeover of the role and function, of a separate constitutional authority.
5) Justiciability of the functions exercised by the Governor and the President under Article 200 and Article 201 respectively.
The division bench in State of Tamil Nadu v. Governor of Tamil Nadu, that the exercise of functions under Article 200 and 201 are justiciable, prescribing an elaborate regime delineating the nature and grounds for justiciability. The Hon’ble SC Court held that this conclusion was erroneous. The Hon’ble SC quoted certain precedents as – State of Bihar v. Kameshwar Singh5, Hoechst Pharmaceuticals Ltd. v. State of Bihar6, Bharat Sevashram Sangh v. State of Gujarat7, Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.8 , and B.K. Pavitra v. Union of India9. The ratio in all these cases made the discretion of the Governor and the President acting under Article 200 and 201 not justiciable. The Court held that, the judgement in State of Tamil Nadu v. The Governor of Tamil Nadu was bound by these earlier decisions. On this ground, the Court held the conclusion arrived at in the above case as erroneous.
“The discharge of function by the Governor and President under Articles 200 and 201 respectively is thus, non-justiciable.”
Article 200 and 201 contemplates a “dialogic process” which cannot be subjected to judicial review. The Court substantiated its findings by pointing out that, to determine whether a Bill has been correctly accorded assent or not, the primary document must be brought before the Court’s consideration which is the Bill, anterior to the stage of it becoming a law. This is against the Constitutional principles as Judicial review of a legislation is premised on the fact that it will be considered by the Court, only after it has been made into law – i.e., assented by the Governor or
President as the case may be, and brought into force. This has the effect of destroying the “separation of power” doctrine. Therefore, relying on this reasoning, the Hon’ble Court held that the discharge of the Governor’s or President’s functions under Articles 200 and 201 respectively, is not justiciable.
6) What relief is constitutionally permissible, when faced with inaction of the Governor under Article 200, thus frustrating the legislative process and the will of the people, expressed through such a Bill that is left pending.
The Hon’ble Court held that while the merits of the discretion exercised under Article 200 cannot be looked into by the Court, an “inaction that is prolonged, unexplained and indefinite” can be subjected to judicial scrutiny. “Our constitutional scheme works, only if it is worked”. The legislature that represents the people’s will is effective only if the Governor duly exercises his/her discretionary function conferred under Article 200. Thus where the Governor chooses to not act under Article 200, resulting in prolonged pendency in Bills without initiating the dialogic process that the Constitution envisions, thus frustrating the outcome of the Legislature’s functions and efforts -Constitutional Courts can exercise limited judicial review. The Court is empowered to grant a form of limited direction, to the Governor, to take action.
7) Whether Article 361 serves as an absolute bar to judicial review in relation to the actions of a Governor under Article 200 of the Constitution.
Relying on the Constitution Bench decision in Rameshwar Prasad (VI) v. Union of India11, the Hon’ble SC held that Article 361 affords to the Governor complete immunity, such that he is not answerable to any court for exercise and performance of powers and duties of his office. But this does not preclude the Court from examining the validity of the action, including on the ground of mala fides. This limited judicial review as discussed in the previous question cannot be overcome on the pretext of Article 361, which offers personal immunity to the Governor.
CONCLUSION
The Indian Constitution is replete with examples that demonstrate the careful balancing of functions and powers between constitutional functionaries, to preserve India’s federal character. This is a landmark judgment that upholds the federal principles of our Constitution. The Court also observed that it is the elected government that should be in the driver’s seat. Even though the time limits prescribed by the division bench is struck down, the Hon’ble Court has upheld the limited judicial review in case of an ‘inaction’ on the part of the Governor.
CASE DETAILS:-
SPECIAL REFERENCE NO. 1 of 2025
IN RE: ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR
AND THE PRESIDENT OF INDIA.
