On May 14, 2025, the President of India, exercising her powers under Article 143 of the Constitution, sought the Supreme Court’s opinion on the imposition of timelines for the President and the Governors to act under Articles 200 and 201. The President referred fourteen questions to the Supreme Court for its opinion.
This was apparently necessary because of the judgement of the Supreme Court’s Bench comprising Justices J B Pardiwala and Justice R Mahadevan on April 8, 2025. Before dealing with the questions, it is essential to set out the context in which they were raised.
This case refers to the Tamil Nadu legislative assembly, which passed 12 Bills and forwarded them to the Governor between January 13, 2020, and April 28, 2023, for his assent under Article 200. These Bills lay dormant till October 2023. The Governor’s inaction led to filing a petition requiring the Governor to act.
Under Article 200, if a Bill passed by the Legislature is presented to the Governor, he may either assent to the Bill or withhold assent therefrom. The Governor is required to give his assent as soon as possible. This reflects that he must do so expeditiously despite no fixed timeline. The Governor can also return a bill to the Legislature for reconsideration. If the Legislature, upon reconsideration, passes the Bill with or without amendments, the Governor cannot withhold assent therefrom.
The Governor may also reserve the Bill for consideration of the President, who, under Article 201, may either give or withhold his assent. Though no timeline has been prescribed, it must be implied that the President will do so expeditiously.
It is in this context that issues relating to the interpretation of Articles 200 and 201 were raised before the Supreme Court, which decided as follows:
In this case, the Governor had returned the Bill to the Legislature, which, after reconsideration, passed it again. The Court held that the pendency of the Bills for unduly long periods, almost three years, shows scant respect by the constitutional authorities towards their obligations. Therefore, exercising its inherent powers under Article 142, the Court declared that the Bills were deemed to have been passed on the day they were presented to the Governor after being reconsidered by the Legislature on November 23, 2023.
The Court said that all constitutional authorities must perform their role as friends, philosophers, and guides and should not be guided by political expediency. This decision led to the aforesaid reference, which seeks, in a way, to set aside this historic judgement.
A caveat before I deal with the issues raised in the reference. While the Governor, under Article 200, exercises his discretion, the President has no such discretion, for she can only act on the aid and advice of the Council of Ministers.
One question relates to constitutional options before the Governor when a Bill is presented to him. A bare reading of Article 200 makes it clear that the Governor, in this context, exercises his functions in his discretion. Another question relates to the constitutional immunity available to the President and the Governor under Article 361 being absolute. Immunity relates only to acts done in their personal conduct, during their term of office, and not decisions taken in their constitutional capacity.
If the Supreme Court can set aside the presidential order under Article 356, there is no reason why the President’s powers or that of the Governor are not subject to judicial review. The Court has prescribed a time limit of three months, which is reasonable in the context of the Governor sitting over the Bills for three years. Another question relates to the exercise of discretion by the President once a Bill is reserved for his consideration. That, too, is justiciable if the President chooses to keep the Bills pending, waiting for the term of the Assembly to expire.
Another question is whether the President is required to take the Supreme Court’s advice on a Bill reserved for his consideration. The answer is yes. However, such advice should not seek to set aside the decision of the Supreme Court indirectly.
Yet another question relates to whether decisions of the Governor and the President under Articles 200 and 201 are justiciable at a stage before the Bill becomes law. If answered in the affirmative, it would result in the breakdown of the constitutional machinery.
The will of the people reflected in the bills passed for public good would then be subject to executive discretion by the Governor. They may never see the light of day if the Governor sits over them for years. Can judicial orders substitute the constitutional powers of the President and Governor is yet another question that was referred. They surely can be if constitutional authorities choose not to act. Another question is whether a law, given effect without the assent of the Governor, is valid.
Obviously, laws can be deemed to have been passed if constitutional authorities do not discharge their constitutional obligations.
Whether the Court should have referred the matter to a larger constitutional bench is a matter that courts have the power to decide. The question of whether, under Article 142, the power of the Supreme Court is limited to procedural laws is an unthinkable proposition. Directions under Article 142 can indeed be issued if there is a hiatus to discharge constitutional functions. The question of whether such a dispute can be decided under Article 142 of the Constitution, it being regarded as a conflict between the State and the Union and thus parties must file a suit under Article 131 of the Constitution, is also an unthinkable proposition as the Constitution provides for how Bills are to be cleared.
It is unfortunate that the government has opted for a confrontational approach instead of pursuing established judicial processes, first by filing a review petition and then, if necessary, a curative petition to set aside this judgment. Such a confrontation between the Executive and the Judiciary is to be avoided at all costs.
All such references do is muddy the waters and make constitutional functions the victim of political expediency.
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)