THE UNION GOVERNMENT TODAY told a five-judge Constitution Bench of the Supreme Court that a Governor is not a post office and in his “wisdom”, can sound a death-knell for a bill by withhold it, without exercising the option of returning it back to the State legislature for reconsideration or reserving it for consideration by the President.
In his argument spread over the entire day, the Solicitor General Tushar Mehta told a five-judge Constitution Bench comprising Chief Justice B.R. Gavai, and Justices Surya Kant, Vikram Nath, Pamidighantam Sri Narasimha and Atul S Chandurkar, that besides the powers to give an assent to a bill, or return it for reconsideration by the legislature or reserving it for consideration by the President, the Governor also has, under Article 200 of the Constitution, powers to withhold a Bill indefinitely, shutting the legislature from re-enacting it.
He argued that the Governor can withhold a Bill in his “wisdom” without taking recourse to either assenting it, returning it to the legislature with a message for reconsideration, or referring it to the President as provided under Article 200.
Apprehensive about the position advanced by the Solicitor General, the Chief Justice Gavai observed, “Are we then not giving total powers to the Governor?...The government elected by majority will be at the whims of the Governor.”
The Solicitor General noted that the Governor would take recourse to such a “withholding of a bill” in the rarest of rare circumstances.”
He argued that in a situation of withholding the Bill, the Governor would not take recourse to the other three options – giving assent, returning it to legislature for reconsideration or referring it to the President - as it would amount to foregoing his power of withholding a bill in exercise of his wisdom.
Mehta also argued that the Governor was not a "post office" but a representative of the Central government appointed by the President, representing the will of the people, though indirectly elected by the elected representatives in the State legislatures and the Parliament.
Mehta contended that a Governor can withhold a bill for several reasons, such as if the State legislature passed it without having legislative competence, if there issues involving national security, or if the bill violated fundamental rights and other aspects. He cited the examples of a Bill which removed reservation, or another through which the State legislature prevented another State’s residents from entering the State as had happened, on one instance, during the COVID-19 pandemic. He also cited the example of a State legislature mandating use of one language or a legislature excluding class of people from voting on the grounds of sex, race, etc
Apparently unimpressed by the position articulated by the Solicitor General, Chief Justice Gavai said that they would go by the language of the provisions relating to the powers of the Governor in respect of the Bills passed by the State legislature.
Focusing on the issues under the Presidential Reference, Justice Surya Kant said, “Possibly there can't be a serious dispute on options assent, withhold, sent to the President for advice and return. Discretion was omitted. These are options available
The central point of debate is what does 'withhold' mean - either to reconsider or return? One draft bill is there. [Suppose] it encroaches upon List I. The Governor can say you can't implement...how much time this process should take is the central point."
Stating that the use of “as soon as possible” in Article 200 was only in respect of the situation where a Bill is returned to the State legislature for reconsideration, the Solicitor General questioned the timelines prescribed in the April 8 Tamil Nadu Governor judgment. He pointed out that nowhere in any subsequent part of Article 200, “as soon as possible” is used, which meant that the Constitution did not intent to put time limit on exercising of three options by the Governor.
The Solicitor General will continue his arguments tomorrow – Thursday, August 21, 2025.
Background of the Presidential Reference
The Constitution Bench of the Supreme Court is hearing the Presidential Reference regarding the power of the judiciary to prescribe timelines for the President and Governors while dealing with Bills passed by State legislatures.
The Presidential Reference, made on May 15, 2025, questions whether the Court exceeded its jurisdiction by prescribing timelines for the President and Governors to act on State Bills, as well as whether the concept of “deemed assent” violates the doctrine of separation of powers. The Union Government has defended the Reference, stating that the judiciary’s intervention encroached upon constitutional functions of the executive.
The States of Tamil Nadu and Kerala have questioned the maintainability of the Presidential Reference contending that it violates the boundaries of Article 143 of the Constitution, which governs the advisory jurisdiction of the Supreme Court. The Kerala government has argued that such a Reference can only be made if the legal question is still undecided or res integra. It has said that constitutional questions raised in the present Reference—relating to the powers of the President and Governors under Articles 200 and 201—have already been settled by the Court.
The Kerala government has cited past precedents, including the 1993 Cauvery Water Disputes Tribunal Reference, to argue that once the Supreme Court has delivered an authoritative ruling, the same issue cannot be reopened taking the Article 143 route. It has highlighted three separate Constitution Bench judgments, including the April 8, 2025, ruling in the Tamil Nadu Governor case authored by Justice J.B. Pardiwala, that had already settled the legal position on timelines for constitutional authorities in dealing with State legislation.
“When the Supreme Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question or that the same remains undecided so as to warrant Presidential clarification,” Kerala has submitted.
The State has further argued that if the Union Government disagreed with the April 8 ruling, it should have filed a review or curative petition, rather than route its grievance through a Presidential Reference, which is meant for genuine legal ambiguities and not rehearing final judgments.
