CONCLUDING THE HEARINGS on the Presidential Reference seeking clarification on whether times lines could be read into Article 200 of the Constitution providing for the exercise of powers by the Governor on deciding on the Bill presented to him after being passed by the state legislature, the Supreme Court today noted that though it strongly stood by the separation of powers between three-organs of State, it could not sit idle when one wing does not discharge its constitutional role.
On the conclusion of the hearing on the Presidential Reference spread over ten days, the Chief Justice B.R. Gavai heading a five-judge Constitution Bench also comprising Justices Surya Kant, Vikram Nath, Pamidighantam Sri Narasimha and Atul S. Chandurkar, said that being a custodian of the constitution, if one organ of the state does not discharge its duties, then it cannot be “powerless and sit idle”.
“I am a strong believer in the doctrine of separation of powers. Judicial activism has to be there. If one wing of the state fails in discharging its duties, would the Court - which is the custodian of Constitution - be powerless and sit idle?”, CJI Gavai asked in the course of the hearing. It came in response to the Solicitor General Tushar Mehta insisting that in exercise of four options under Article 200, the Governor can withhold assent to a Bill and the judiciary cannot issue a mandamus in such a situation.
To the observations from the bench, Mehta responded that both the executive and the legislature were equally the custodians of the Constitution and the Court could not issue a mandamus to a “co-ordinate constitutional functionary” which is the Governor in the instant case, in exercise of his constitutionally recognised discretionary powers. To buttress his point, he cited a hypothetical situation where the court is faced with four petitions seeking divergent and conflicting mandamus on a Bill before a Governor.
“If one wing of the state fails in discharging its duties, would the Court - which is the custodian of Constitution - be powerless and sit idle?”, CJI Gavai asked.
Mehta reiterated that an assent to a Bill by the Governor is an integral part of the legislative process that commences with the introduction, consideration and passage of Bill by the State assembly. He said that even if there was a justification, the court does not have jurisdiction to interfere in the exercise of p[owners by the Governor under Article 200. This position was articulated by the Solicitor General in his earlier submissions in the beginning of the hearing but the Court appeared unpersuaded by it.
During the August 21 hearing, when Mehta had submitted that the courts cannot step in as actions of the Governor in exercise of powers under Article 200 are not justiciable, the CJI had asked, “According to you, it is totally out of judicial view?”. He had also asked, “What is the safeguard for a duly elected government. Suppose a bill is passed with two-third majority and the Government just sits over it. This will make the legislature and the government defunct.”
Arguing against the fixing of the timelines, and cautioning that this would lead to an “assent jurisprudence” in the country, the Attorney General for India, R. Venkataramani argued, “This would mean doing violence with Article 200 and the best course would be to leave to the wisdom of the Governor in exercise of his powers under Article 200 of the Constitution.”
The 10-days long hearing which had commenced on August 19, continued over August 20, 21, 26, 28, and September 2, 3,9, 10, finally concluding today. It witnessed Attorney General Venkataramani, Solicitor General Mehta, and senior advocates Harish Salve, Mahesh Jethmalani, Neeraj Kishan Kaul, Guru Krishna Kumar and others opposing the fixing of timelines for deciding in the Bill presented to the Governor for assent.
On the other hand, senior advocates K.K. Venugopal, Gopal Subramanium, Abhishek Manu Singhvi, Kapil Sibal, Arvind Datar, P. Wilson and others had favoured a time bound decision by the Governor on the Bills passed by the state legislatures and presented to him for assent.
The Presidential Reference, made on May 15, 2025, questions whether the judiciary exceeded its jurisdiction in prescribing timelines for Governors and the President to act on Bills, and whether the concept of “deemed assent” undermines separation of powers.
The Union government has supported the Reference, contending that the Court’s intervention intruded into the legislative and the executive’s domain, a stand backed by several BJP-ruled states. Tamil Nadu and Kerala have opposed the maintainability of the Reference, with Kerala arguing that Article 143 permits advisory jurisdiction only on unsettled issues, while Articles 200 and 201 had already been interpreted by the Court.
The trigger of the Presidential Reference is April 8, Supreme Court judgment by a bench of Justices J.B. Pardiwala and R. Mahadevan.
The trigger of the Presidential Reference is April 8, Supreme Court judgment by a bench of Justices J.B. Pardiwala and R. Mahadevan.
The Supreme Court by its April 8, judgment fixing the timelines had said, “Neither the concept of ‘pocket veto’ nor that of ‘absolute veto’ finds place within the constitutional scheme and mechanism envisaged under Article 200 of the Constitution” and that “…there is no scope of inaction, and whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein.”
The Court had said, “It goes without saying that the scheme of Article 200 is characterized by the movement of the bill from one constitutional authority to another and that too with a sense of expediency. It is trite to say that Article 200 occupies an important role of giving the bills passed by the State legislature the authority of an Act. Without the procedure envisaged under Article 200, the bills remain mere pieces of paper, skeletons without any flesh or lifeblood flowing through their veins, mere documentation of the aspirations of the people without any possibility of bringing them to fruition.”