Introduction:

In the matter titled IN RE : ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR AND THE PRESIDENT OF INDIA | SPL.REF. No. 1/2025, the Supreme Court of India is currently hearing a Presidential Reference that raises fundamental questions on the role of Governors and the President in granting assent to Bills passed by State Legislatures. The reference has assumed special significance after the Supreme Court’s two-judge bench decision in the Tamil Nadu Governor’s case, where the Court, invoking Article 142, declared “deemed assent” to certain Bills which had been kept pending by the Governor for years. During the hearing on August 19, 2025, a Constitution Bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice AS Chandurkar engaged in a robust constitutional dialogue with the Attorney General for India R. Venkataramani. The Court openly remarked that the Tamil Nadu judgment might have been intended to “handle an egregious situation” created by prolonged gubernatorial inaction, but raised concerns about its implications as a precedent. The reference, therefore, is testing the contours of constitutional checks and balances between the judiciary, the executive, and constitutional authorities like Governors, especially when they delay or withhold assent to Bills without justification.

Arguments Supporting Judicial Intervention:

On behalf of those who support the Tamil Nadu judgment and the broader principle of judicial intervention, it was argued that the Constitution cannot be held hostage by a Governor’s inaction. Governors, being constitutional authorities, must act within the framework of the Constitution, which envisages their role as largely ceremonial in legislative processes. The petitioners and supporting counsel emphasized that when a State Legislative Assembly has debated and passed a Bill, reflecting the will of the people, the Governor is bound either to grant assent, withhold assent with reasons, or reserve the Bill for the President. Prolonged silence or indefinite withholding of Bills undermines the democratic process and strikes at the heart of federalism. The Court was reminded that Article 200 of the Constitution prescribes specific courses of action for the Governor, and none of them authorizes indefinite inaction. Thus, when Governors fail to act, it amounts to a constitutional breach. Supporters of judicial intervention contended that the Supreme Court, as the “Sentinel on the qui vive,” cannot allow democracy to be paralysed by executive inaction. Citing paragraphs 431 to 433 of the Tamil Nadu judgment, they argued that the Court rightly exercised its powers under Article 142 to prevent constitutional abuse and to ensure complete justice. They emphasized that the invocation of Article 142 was not casual but based on a detailed finding of bad faith, prolonged delay, and disregard for constitutional duties. In such extraordinary circumstances, the judiciary has a duty to protect the supremacy of the Constitution by declaring deemed assent to the Bills, thereby preventing obstruction of legislative will by a non-elected authority.

Arguments Opposing Judicial Substitution of Governor’s Role:

The Attorney General for India, R. Venkataramani, appeared before the Constitution Bench and advanced detailed submissions opposing judicial substitution of the Governor’s role. He argued that however undesirable the Governor’s conduct may be, the Court cannot constitutionally step into the shoes of the Governor and perform a function specifically entrusted to that office. The AG acknowledged that in the Tamil Nadu case, facts such as Bills pending since 2020 were “factually correct” and deeply concerning. However, he contended that the solution cannot lie in the Court assuming gubernatorial powers. Instead, the Court must limit itself to reminding the Governor of his constitutional duties or, at most, directing expeditious decision-making, but not declaring assent on behalf of the Governor. He stressed that Article 142 cannot be used to fundamentally alter constitutional design. By declaring deemed assent, the Court risked creating a precedent where, in any future case of delay or perceived mala fides, litigants could demand judicial substitution of executive discretion. This, according to the AG, could open floodgates to “mind-boggling fact situations” where courts would be compelled to enter executive domains. He pointed out that constitutional authorities are distinct creatures of the Constitution, and even when they err, the remedy lies in constitutional processes rather than judicial usurpation. The AG also raised concerns about the judgment’s “disquieting features,” such as its strong language against the Governor’s conduct and its reliance on factual assessments which, in his view, may not be generalized as law. He maintained that while courts can censure and direct, they cannot constitutionally declare assent, as doing so collapses the separation of powers.

Court’s Observations and Approach:

The Constitution Bench, while not issuing a final ruling yet, made a series of oral observations that reflected both sympathy for the Tamil Nadu bench’s predicament and caution about precedent-setting. Justice Surya Kant observed that the Tamil Nadu judgment appeared to have been a reaction to an extraordinary fact situation, namely the Governor’s prolonged inaction dating back to 2020. He acknowledged that the observations in paragraph 432, which questioned the Governor’s bona fides, were in direct response to paragraph 431 noting the Bills’ prolonged pendency. Justice Narasimha pointed out that paragraphs 432 and 433 of the Tamil Nadu judgment must be read as handling an “egregious situation” rather than laying down a sweeping principle of law. In this sense, the judgment might have been context-specific rather than a general precedent. The Chief Justice of India, BR Gavai, however, stressed that the Court could not ignore the fact that Governors, in some cases, have failed to give due deference even to judicial pronouncements, which raises serious constitutional concerns. The bench pressed the Attorney General to explain what the “constitutionally permissible recourse” would be if Governors indefinitely withheld assent. The judges pointed out that simply sending the matter back to the Governor might be ineffective if the Governor continues to remain intransigent, leaving the Court helpless and democracy paralysed. The AG responded that even then, the Court must resist assuming the Governor’s functions, as otherwise, “no lines can be drawn” on judicial power.

The bench also engaged in a deeper exploration of Article 142, noting that while it empowers the Court to do “complete justice,” it cannot be invoked casually to override constitutional structures. At the same time, they recognized that prolonged inaction by Governors undermines both constitutional morality and the principle of federal governance. Justice Narasimha described the Tamil Nadu decision as a “reaction to facts” rather than a “laying down of precedent,” suggesting that the Constitution Bench might distinguish between the two. The Court also made it clear that in deciding the Presidential Reference, it would not be reviewing or overruling the Tamil Nadu decision but would be articulating a general view of the law to guide future cases.

Emerging Constitutional Tension:

This reference highlights a recurring tension in India’s constitutional framework: the balance between legislative will, gubernatorial discretion, and judicial intervention. The Governor’s role, though constitutionally significant, is intended to be exercised with restraint and within the limits prescribed by Article 200. Prolonged withholding of Bills disturbs the delicate balance of federalism by allowing a nominated constitutional functionary to obstruct the will of an elected legislature. On the other hand, judicial overreach into executive functions threatens the principle of separation of powers. The Supreme Court, in grappling with this dilemma, is navigating uncharted territory where neither complete judicial passivity nor absolute judicial substitution seems tenable. The Court’s emphasis on being a “Sentinel on the qui vive” underscores its willingness to check constitutional transgressions, yet its caution about precedent reflects awareness of long-term systemic implications. The eventual outcome of this reference will likely redefine the limits of Article 142 and clarify whether courts can ever declare deemed assent or must always stop short of entering the Governor’s constitutional shoes.

Court’s Indicative Position:

Although the hearing remains ongoing, the oral observations suggest that the Constitution Bench is leaning towards recognizing the Tamil Nadu decision as an extraordinary response to an extraordinary situation, rather than a binding precedent for all future cases. The Court appears inclined to clarify that while Governors cannot indefinitely delay Bills and must act within the bounds of the Constitution, the judiciary cannot ordinarily substitute their functions. At the same time, the Court may emphasize that in egregious situations involving mala fide conduct or gross inaction, it retains the power to step in under Article 142, but only as a last resort. This nuanced position would reconcile the need to prevent abuse of gubernatorial power while preserving the structural balance of the Constitution. The case, therefore, is not only about one Governor or one State but about setting constitutional guardrails for the future.