2025 (11) TMI 1428 - SC - Indian Laws

Ruling clarifies Governor's limited powers on bills and timelines under Articles 200, 201 and 142

In Re: Assent, Withholding or Reservation of Bills By The Governor And The President Of India.

SC, on a Presidential Reference, held that under Article 200 a Governor has three options on a Bill: assent, withhold assent and return to the ... Presidential Reference - Construction of the plain text of the Constitution to determine the options available for the Governor under Article 200 - Interpretation and Construction of Article 200 in the context of Federalism as a basic feature of the Constitution - Whether the Governor is bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India? - Options of the Governor under Article 200 after the Legislative Assembly presents the Bill to the Governor after reconsideration under the first proviso - prescription of time limits on the Governor and the President for exercising their discretion under Articles 200 and 201, and the issue of deemed assent - Justiciability of the functions exercised by the Governor and the President under Article 200 and Article 201 respectively - Limits of judicial intervention - Article 361 and its interplay with judicial review of actions under Article 200 - Opinion of the Court on the Presidential Reference. Construction of the plain text of the Constitution to determine the options available for the Governor under Article 200 - HELD THAT:- The deployment of the phrase “instead of” in relation of assent and withhold, clearly postulates that the succeeding option of returning the Bill was an option divorced from the option of withhold and a completely different option. Such a phraseology was available and not put to deliberate use in the text of the Constitution. This adds an additional reason to our interpretative choice of Article 200 - the use of the phrase “may” (and not “shall”) in the first proviso is only to indicate that the Governor need not return every Bill to the House(s), and that he still can exercise the option of assenting to the Bill, or to reserve it for the consideration of the President. Interpretation and Construction of Article 200 in the context of Federalism as a basic feature of the Constitution - HELD THAT:- The first proviso initiating a constitutional conversation between the institution of the Governor and the House (or Houses), and the option to reserve the Bill for the consideration of the President under the substantive part of Article 200, exemplify the cooperative spirit of Indian federalism, and also bring out different facets of the checks-and-balances model that the Constitution has envisaged - A dialogic process, which has the potential to understand and reflect on conflicting or opposing perspectives, to reconcile and to move forward in a constructive manner, is an equally potent check-and-balance system that the Constitution has prescribed. Once this perspective is grasped, the persons who occupy various constitutional offices or institutions will also do well to ingrain in themselves that dialogue, reconciliation and balance, and not obstructionism is the essence of constitutionalism that we practice in this Republic. Whether the Governor is bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India? - HELD THAT:- The Governor has no option to withhold a Bill simpliciter. Therefore, it is not that the discretion so conferred, allows a situation wherein the Governor could frustrate a Bill in perpetuity. The three clear options that he has, is to grant assent, withhold assent and return the Bill to the legislature for reconsideration, or reserve the Bill for consideration of the President, and he can exercise his discretion in choosing any of these three options, having given due regard to the aid and advice tendered by the Council of Ministers, and keeping in mind his duty – to protect and defend, the Constitution. Options of the Governor under Article 200 after the Legislative Assembly presents the Bill to the Governor after reconsideration under the first proviso - HELD THAT:- The text of the first proviso to Article 200 through its phrasing “shall not withhold assent therefrom” clearly indicates that what was sought to be curtailed among the three options, was only the option to ‘withhold’. We have already held that the first proviso conditions the verb ‘withhold’, to mean withhold and return to the Legislature. The first proviso cannot be read in a manner so as to condition the option of the Governor to reserve the Bill for President’s consideration as well. Therefore, when the Bill is returned to the Governor, he is still left with two options – either to grant his assent, or to refer it to the President for his consideration. This power to reserve a Bill for the President’s consideration, is irrespective of whether the Bill is returned by the Legislature in its amended or unamended form. Prescription of time limits on the Governor and the President for exercising their discretion under Articles 200 and 201, and the issue of deemed assent - HELD THAT:- A reading of the text of Articles 200 and 201 clarifies that the only temporal aspect tied to the constitutional functionaries so referred, in these provisions are as follows: firstly, that if the Governor finds reason to withhold and therefore, return the Bill with his comments for the consideration of the State Legislature, he is required to do so “as soon as possible as per the first proviso to Article 200; secondly, that once the President instructs the Governor to return a Bill to the State Legislature with the former’s comments, it is incumbent upon the Legislature, in fact, to “reconsider it accordingly within a period of six months from the date of receipt of such message - That the Constituent Assembly chose, at one place (i.e., the proviso to Article 201) to explicitly impose a definite timeline (for the Legislature to reconsider the Bill so returned), but no such imposition is made on the other functionaries of the Governor or the President, is significant. Implicit in this distinction, is also the institutional respect that the Constitution contemplates, and affords, to the constitutional functionaries of the Governor, and President. The judicial creation of specific timelines and the effect of the expiry of those timelines on the actions of the Governor and the President, does not employ Article 142 to merely fill the gaps. We have already held that the effect of this judgment insofar as ‘deemed assent’ is concerned is that it undertakes a substitutional role. The constitutional effect is such that it is not merely a gap-filling exercise, or a procedural exercise that the Court undertook, but a substantive one which finds no basis in the text of the Constitution. In this view of the matter, we are of the considered opinion that Article 142 cannot be employed to arrive at a conclusion contrary to the express provisions of the Constitution. There are no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution. Justiciability of the functions exercised by the Governor and the President under Article 200 and Article 201 respectively - HELD THAT:- The sanctity of the legislative process afforded by the Constitution must be protected and allowed to operate in its entirety. The Court cannot interfere, in the midst of that process before it is even concluded, and especially at the stage where the Governor is empowered to initiate a dialogic process. The provisions of Articles 200 and 201 offer a complete Code, for how Bills are to be dealt with, upon being passed by the House(s). The way we practice our constitutionalism does not allow for judicial consideration of Bills at this preliminary stage. It is reiterated that to allow this would be to effectively supplant the role of the Legislature, and the checks and balances placed squarely within its responsibility - there are no reason to deviate from the binding decisions of this Court and for the additional reasoning stated above, are of the considered view that the discharge of the Governor’s or President’s functions under Articles 200 and 201 respectively, is not justiciable. The judicial review scrutiny and the jurisdiction of courts can be invoked only once the Bill becomes law. It is unfathomable, keeping in mind the way in which constitutionalism is practised in India, to suggest that Bills can be brought to Court and adjudicated upon (rather than opined upon under Article 143). The only limited scope and known constitutional route through which the Judiciary can look into a Bill, is if the President, in exercise of Article 143, referred such a Bill to the Supreme Court to opine on, in discharge of its advisory jurisdiction. Under Article 143, it is the Executive through the President, that seeks an opinion of this Court. This is markedly different from examining a challenge on merits whether the Governor has reserved or withheld and returned the said Bill justifiably so. Limits of judicial intervention - HELD THAT:- The Courts are empowered to grant a form of a limited direction, to the Governor, to take action. The Court can after being satisfied from a perusal of records on what has transpired can issue a limited direction to the Governor to act under Article 200, within a reasonable time limit, without making any observations on the merits of the exercise of discretion. It would thus, serve the purpose of asking the Governor to exercise his function under Article 200, rather than substituting his role. The complexity of the Bill presented, emergent nature of the enactment, nature of consultative process undertaken, are a few illustrative factors that the Court will take into consideration while issuing a limited mandamus to take an appropriate step under Article 200 - There is no formulaic manner, or timeline, that the Courts by judicial order can establish. Not every case would lead the Court to issue an automatic direction to ‘act’, rather this limited direction would have to be measured based on appropriate circumstances. In this manner, this limited direction that the Court can issue, serves as a form of institutional accountability. Opinion of the Court on the Presidential Reference - HELD THAT:- The decisions of the Governor and President under Articles 200 and 201 respectively, are not justiciable at a stage anterior into 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’ - The exercise of constitutional powers and the orders of the President/Governor cannot be substituted in any manner under Article 142, and it is clarified that the Constitution, specifically Article 142 even, does not allow for the concept of ‘deemed assent’ of Bills. Presidential reference disposed off. ISSUES PRESENTED AND CONSIDERED 1. What constitutional options are available to the Governor when a Bill is presented under Article 200? 2. Whether the Governor is bound by the aid and advice of the Council of Ministers when exercising the options under Article 200. 3. Whether the exercise of constitutional discretion by the Governor under Article 200 and by the President under Article 201 is justiciable. 4. Whether Article 361 bars judicial review of actions of the Governor under Article 200. 5. Whether courts may judicially prescribe timelines for the Governor and the President under Articles 200 and 201, and whether expiry of such timelines can give rise to 'deemed assent'. 6. Whether courts may adjudicate the contents of a Bill at a stage anterior to its becoming law (i.e., before assent). 7. What remedies, if any, are available where the Governor fails to act (prolonged inaction) under Article 200? 8. Ancillary: which referred questions are irrelevant or declined to be answered by the Court (bench composition, Article 142 broad question, jurisdictional scope question). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Constitutional options of the Governor under Article 200 Legal framework: Article 200 (substantive part and two provisos) sets out options on presentation of a Bill: assent, withhold, or reserve for President; the first proviso allows return for reconsideration (except Money Bills); the second proviso requires reservation where a Bill would derogate from High Court powers. Precedent treatment: Several larger-bench decisions have considered related questions but not uniformly: earlier larger benches recognized three courses; later Division Bench(s) took differing readings. The Court analysed Kameshwar, Valluri, Hoechst and subsequent authorities. Interpretation and reasoning: The Court distinguishes between the 'what' (range of options) and the 'how' (manner of exercise). It holds the first proviso is a qualification of 'withhold' (i.e., withhold and return with message) rather than a separate fourth option. Textual cues (use of 'or', 'shall not withhold assent therefrom' in the proviso, asymmetry with Article 201 proviso), purpose of Money Bill scheme, and constitutional design favour a reading that the Governor has three options: (1) assent; (2) withhold and return with message (only where not a Money Bill); (3) reserve for President. The second proviso is a mandatory qualification to reserve where it applies. Preference is for an interpretation promoting dialogic institutional comity and federal checks-and-balances. Ratio vs. Obiter: Ratio - Article 200 confers three options as described; provisos qualify and restrict rather than create additional options. Obiter - discussion on historical statutes and drafts used to support textual reading. Conclusion: The Governor's options under Article 200 are (i) assent; (ii) withhold and return with message (not available for Money Bills); (iii) reserve for President; provisos constrain these options rather than expand them. Issue 2 - Whether the Governor is bound by aid and advice of Council of Ministers under Article 200 Legal framework: Article 163 (aid and advice) and Article 200 read together; constitutional practice and precedents (Samsher Singh, M.P. Special Police Establishment, Nabam Rebia) inform the scope of discretion. Precedent treatment: Larger Bench authorities recognize that ordinarily Governor acts on aid and advice but that constitution contemplates instances where Governor may act in discretion; Nabam Rebia and M.P. Special Police recognize limited discretionary space. Interpretation and reasoning: The Court rejects a categorical rule that Governor is always bound. It finds the Constitution (and practice) contemplates the Governor exercising discretion in certain circumstances, including reservation to President or returning a Bill for reconsideration. Textual and structural considerations (existence of provisions requiring reservation for Presidential assent in various constitutional articles, the Governor's unique role as sole authority able to reserve) demonstrate necessity for discretion so President's protective role can function. The phrase 'in the opinion of the Governor' in second proviso affirms discretion; Article 163(2) anticipates questions as to whether matter requires Governor's discretion. The Court rejects a view that deletion of 'in his discretion' in drafts eliminated all discretion. Ratio vs. Obiter: Ratio - Governor enjoys discretion to choose among Article 200 options and is not always bound by ministerial advice in those circumstances; discretion is limited, to be exercised reasonably and with regard to aid and advice. Conclusion: The Governor is not invariably bound by ministerial advice in exercising Article 200 options; discretion exists for specified/necessary circumstances and must be exercised with duty to protect Constitution. Issue 3 - Justiciability of exercise of discretion under Articles 200 and 201 Legal framework: Principles of judicial review, separation of powers, precedents (Kameshwar, Hoechst, Bharat Sevashram Sangh, Kaiser-i-Hind, etc.) which have often held Presidential/Governor assent non-justiciable in merits. Precedent treatment: Earlier larger benches have held assent decisions by President/Governor not subject to merits review; some later decisions treated aspects differently. The Court re-examined State of Tamil Nadu's contrary approach and larger-bench authorities favouring non-justiciability. Interpretation and reasoning: The Court distinguishes dialogic/consultative acts (assent, reservation, return) from adjudicatory or executive acts; it emphasises that permitting pre-enactment judicial review would permit courts to adjudicate Bills before they become law, supplanting constitutional roles and violating separation of powers. The Court treats the functions of Articles 200/201 as initiating a dialogue, not an adjudicatory act, and holds that merits of Governor/President decisions are not justiciable. However, it recognises limited judicial scrutiny where there is prolonged, unexplained, indefinite inaction frustrating legislature's will - courts may issue limited directions (mandamus) to act within a reasonable time without directing a particular course or entering merits review. Ratio vs. Obiter: Ratio - Discharge of functions under Articles 200 and 201 is not justiciable as a merits review; courts cannot adjudicate contents of Bills before they become law. Ratio - limited judicial intervention available for prolonged, unexplained inaction (power to direct Governor to act within reasonable time). Obiter - categories of permissible pre-enactment challenges proposed in earlier decision are rejected. Conclusion: Assent/reservation/return under Articles 200/201 are not subject to merits review; courts may only issue limited mandamus against prolonged inaction to compel the Governor to exercise constitutional choice within reasonable time, without deciding merits. Issue 4 - Article 361's interplay with judicial review of Article 200 actions Legal framework: Article 361 grants personal immunity to President and Governors from being answerable to any court for acts done in exercise of office; earlier Constitution Bench authority clarifies immunity does not bar judicial scrutiny of validity/mala fides, but does bar impleading the office-holder personally. Precedent treatment: Rameshwar Prasad and related authorities explain scope of Article 361: personal immunity but not bar to examining validity of actions (to be defended by Union/State). Interpretation and reasoning: The Court holds Article 361 prevents personal impleading but does not negate the limited judicial review for inaction under Article 200. Article 361 does not preclude courts from directing the constitutional office (via State/Union representative) to act; but courts cannot require the Governor personally to file affidavits or be made personally answerable. Ratio vs. Obiter: Ratio - Article 361 provides personal immunity but does not foreclose judicial power to examine validity where necessary or to address prolonged inaction through limited remedies; immunity cannot be used to negate institutional accountability. Conclusion: Article 361 is an absolute bar to personal proceedings against Governor but does not preclude the Court from exercising limited jurisdiction to deal with prolonged inaction under Article 200; the Governor's office remains subject to constitutional judicial oversight through appropriate processes. Issue 5 - Prescription of timelines and 'deemed assent' under Articles 200/201 Legal framework: Articles 200/201 contain limited temporal language: 'as soon as possible' (first proviso Article 200) and a six-month reconsideration period in Article 201 proviso; Constituent Assembly debates and precedent (Purushothaman Nambudiri) note absence of explicit timelines. Precedent treatment: Earlier judgments (including a recent Division Bench) had read in timelines and provided consequences; Natural Resources Allocation and Nambudiri emphasise absence of textual timelines and caution against reading in strict deadlines; State of Tamil Nadu had prescribed judicial timelines, which the Court now holds to be erroneous. Interpretation and reasoning: The Court declines to read fixed judicially-prescribed universal timelines into Articles 200/201. Textual absence, constitutional design privileging elasticity, historical rejection of fixed timelines in assembly debates, and danger of judicially creating 'deemed assent' (which would substitute executive function and violate separation of powers) inform this conclusion. Judicially imposed timelines in prior decision are characterised as erroneous; timelines may serve as a yardstick in review but cannot produce deemed assent. The Court also rejects use of Article 142 to create deemed assent or to substitute executive functions. Ratio vs. Obiter: Ratio - Courts will not judicially prescribe universal timelines for Governor/President under Articles 200/201; deemed assent cannot be judicially created. Obiter - discussion of particular administrative recommendations (Sarkaria/Punchhi) and why circulars cannot be constitutional fetters. Conclusion: No judicially imposed universal timelines or deemed-assent consequences under Articles 200/201; limited mandamus to act within a reasonable period remains available in cases of prolonged inaction. Issue 6 - Justiciability of contents of Bill prior to enactment and Article 143 role Legal framework: Separation of powers, Article 143 advisory jurisdiction, and the ordinary remit of judicial review (post-enactment). Precedent treatment: Kameshwar, Hoechst, Kaiser-i-Hind treat presidential assent/reservation as part of legislative procedure not subject to merits review; Article 143 allows advisory opinion when President refers questions. Interpretation and reasoning: The Court reiterates that judicial adjudication over contents of a Bill before it becomes law is impermissible; only avenue for pre-enactment judicial opinion is Article 143 advisory reference by President. Allowing ordinary judicial challenges ante-legem would subvert constitutional roles and permit courts to supplant executive/legislative functions. Ratio vs. Obiter: Ratio - Courts cannot adjudicate Bill contents prior to enactment; Article 143 remains the proper instrument for advisory opinion where President seeks it. Conclusion: Pre-enactment judicial adjudication is impermissible; Article 143 advisory references are available but voluntary for the President. Issue 7 - Remedies for prolonged inaction by the Governor under Article 200 Legal framework: Doctrine of rule of law, precedents permitting mandamus to mitigate inaction (Aeltemesh Rein), separation of powers constraints. Precedent treatment: Courts have issued mandamus where executive fails to act for unreasonable time; prior decisions prescribing timelines were held to be erroneous but limited directions are supported by precedent. Interpretation and reasoning: The Court recognises that constitutional governance abhors prolonged inaction; where Governor's inaction is prolonged, unexplained and indefinite such that it frustrates legislature's will, courts may issue limited directions compelling the Governor to exercise constitutional choice within a reasonable time. Such directions must not direct a particular outcome or undertake merits review; they are situational, fact-sensitive and not formulaic. Ratio vs. Obiter: Ratio - Limited mandamus to compel action (not to dictate outcome) is available where inaction is prolonged/unexplained; courts must consider complexity and context in framing directions. Conclusion: Limited judicial remedy (mandamus to act within reasonable time) is available against prolonged inaction, preserving separation of powers and avoiding merits substitution. Ancillary issues - Questions declined/returned Questions on bench composition under Article 145(3) and broad question on Article 142's general scope were declined as irrelevant or too broad to be productively answered in this reference; jurisdictional question on disputes between Union and States (outside Article 131) also returned unanswered as not functionally relevant to the reference.