SC Line On Latest Reference

 

 

A FIVE-JUDGE Bench of the Supreme Court consisting of out-going Chief Justice Bhushan R. Gavai, the Chief Justice designate, Justice Surya Kant, Justice Vikram Nath, Justice Padmighantam Sri Narsimha and Justice Atul S. Chandurkar have answered on November 20, 2025, the Presidential Reference seeking answers to 14 questions clarifying as to whether Governor’s powers, mainly regarding constitutional breadth of discretion granted to an incumbent, extends to protecting an indefinite or prolonged inaction of the Governor under Article 200. To this the Supreme Court’s answer is while the action taken by the Governor under Article 200 cannot be looked into by Courts, but inaction which is prolonged, unexplained and indefinite, will certainly invite limited judicial scrutiny. Though, the Courts cannot interfere in the procedure of a Bill’s passage and embark on its merit review, however, the consequent question that arises- as it did before this Court in the decision State of Tamil Nadu v. Governor of Tamil Nadu (2025) 8 SCC 1 - is what redressal lies, when no decision is forthcoming from the Governor under Article 200?

 

In other words, what relief is constitutionally permissible, when faced with Governor’s inaction under Article 200, thus frustrating the legislative process and the will of the people expressed through such a Bill that is left pending. To permit a reading of the Constitution that enables or even allows, unchecked discretion to potentially bring bills passed in furtherance of people’s will, to a procedural impasse and frustrate lawmaking would be antithetical to the values and spirit of the Constitution. The Governor enjoys discretion under various provisions, is no longer ‘res integra’. Each constitutional organ or authority cannot function by itself. The working of our constitutional scheme is premised on constitutional authorities- who are each assigned specific but interdependent roles- performing their duties, akin to cogs that keep a clock ticking.

 

They depend on each other, to keep the Constitution humming, and thus working. They are also constitutionally obligated, to offer checks- and - balances, for the other. Such a scheme, thus, abhors inaction. In other words, our Constitutional Scheme works only if it is worked. It is one thing to say that one constitutional organ will not substitute or supplant the wisdom or role of another constitutional authority, but completely another- to shy away from checks and balances on this pretext, when there is deliberate inaction. The concept of accountability, and checks and balances courses through the provisions of the Constitution. Thus, the Legislature, which represents the people’s will, is only effective, if the Governor acts, under Article 200. This is not to say that the Governor is merely a rubber stamp, between a Bill becoming an Act. There is value, in his consideration, and thus, the choice exercised between the three options before him under Article 200.

 

Thus, it is correct that the Court cannot supplant the wisdom of the Governor and enter a merits-review of this decision so taken. However, when the Governor chooses not to act under Article 200, resulting in prolonged pendency of the Bill without initiating dialogic process that the Constitution envisions, thus frustrating the outcome of the Legislature’s functions and efforts- Constitutional Courts can exercise limited judicial review. In light of the Supreme Court’s findings and observations, it has summarised its conclusions as under : 1. The Governor has three constitutional options before him under the Article 200, namely- to assent, reserve the Bill for the consideration of the President, or withhold assent and return the Bill to the Legislature with comments.

 

The first proviso to Article 200 is bound to the substantive part of the provision, and restricts the existing options, rather than offering a fourth option. Pertinently, the third option-to withhold assent and return with comments is only available to the Governor, when it is not a Money Bill. 2. The Governor enjoys discretion in choosing from these three constitutional options and is not bound by the aid and advice of the Council of Ministers, while exercising his function under Article 200. 3. The discharge of the Governor’s function under Article 200, is not justiciable. The Court cannot enter into a merits review of the decision so taken. However, in glaring circumstances of inaction, that is prolonged, unexplained and indefinite, the Court can issue a limited mandamus to a Governor to discharge his function under Article 200 within a reasonable time period, without making any observation on the merits of exercise of his discretion. 4. Article 361 of the Constitution is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings.

 

However, it cannot be relied upon to negate the limited scope of judicial review that this Court is empowered to exercise in situations of prolonged inaction by the Governor under Article 200. It is clarified that while the Governor continues to enjoy personal immunity, the constitutional office of Governor is subject to the jurisdiction of this Court. 5. In the absence of constitutionally prescribed time limits, and the manner of exercise of power by the Governor, it would not be appropriate for this Court to judicially prescribe timelines for the exercise of power under Article 200. 6. For similar reasoning as held with respect to the Governor, the President’s assent under Article 201 too, is not justiciable. 7. For the same reasons as indicated in the context of the Governor under Article 200, it is clarified that the President too, cannot be bound by judicially prescribed timelines in the discharge of functions under Article 201. 8. In our constitutional scheme, the President is not required to seek advice of this Court by way of Reference under Article 143, every time a Governor reserves a Bill for the President’s assent.

 

The subjective satisfaction of the President is sufficient. If there is a lack of clarity, or the President so requires advice of this Court on a Bill, it maybe referred under Article 143, as it has been done on numerous previous occasions. 9. The decisions of the Governor and President under Articles 200 and 201 respectively are not justiciable at a stage anterior to the law coming into force. It is impermissible for the Courts to undertake judicial adjudication over the contents of a Bill in any manner before it becomes law. Pertinently, discharge of its role under article 143, does not constitute ‘judicial adjudication’. 10. The exercise of constitutional powers and orders of the President/Governor cannot be substituted in any manner under Article 142 and “we” hereby clarify that the Constitution, specifically Article 142 even, does not allow for the concept of ‘deemed assent’ of Bills. 11.

 

Question 11 is answered in accordance with the Court’s opinion tendered in answer to Question 10. 12. Question 12 relates to the Article Article145(3) and the composition of benches in the Supreme Court that hears cases of constitutional importance is irrelevant to the functional nature of this reference and is returned. 13. The Court has also indicated in its opinion that Question 13 concerning the power under Article 142 is overly broad, and not possible to answer in a definitive manner. The Court’s opinion on the scope of Article 142 in the context of functions of the Governor and President has been answered already, as a part of Question 10. 14. Question 14 pertaining to the Supreme Court’s jurisdiction to resolve disputes between the Union and State Governments outside of Article131- is also found to be irrelevant to the functional nature of the Reference and hence returned unanswered.