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...., Adv. Ms. Soumya Sannidhanam, Adv. Ms. Mehak Kumar, Adv. 1 Mr. Vatsal Joshi, Adv. Mr. Chitransh Sharma, Adv. Mr. Yogya Rajpurohit, Adv. Ms. Rithika Khatri, Adv. Mr. Anuj Udupa, Adv. Ms. Shailja Singh, Adv. Mr. Ruturaj Satapathy, Adv. Ms. Sukanya Das, Adv. Ms. Visakha Raghuram, Adv. Mr. Somkeerti V Singhdeo, Adv. Mr. Sidharth Luthra, Sr. Adv. Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Ms. Rajni Gupta, Adv. Mr. Karl P Rustomkhan, Adv. Mr. Dhruv Yadav, Adv. Mr. S Niranjan Reddy, Sr. Adv. Ms. Devina Sehgal, AOR Mr. Kumar Vaibhaw, Adv. Mr. Vineet George, Adv. Ms. Akhila, Adv. Ms. Rajeswari Mukherjee, Adv. Mr. Salar Aatif, Adv. Mr. Pradyuman Kaistha, Adv. Mr. Yatharth Kansal, Adv. Mr. Dhananjay Yadav, Adv. Mr. Harish Salve, Sr. Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv. Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Adarsh Dubey, Adv. Ms. Deepanwita Priyanka, AOR Mr. Anil Shrivastav, A.A.G. Ms. Disha Singh, AOR Ms. Eliza Bar, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv. Ms. Rajkumari Divyasana, Adv. Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Mr. P....
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.... Tripathi, AOR Mr. Shaurya Sahay, Adv. Mr. Luv Kumar, Adv. Mr. Aditya S. Pandey, Adv. Mr. Aditya Kumar, Adv. Mrs. Rekha Bakshi, Adv. Mr. Sudarshan Singh Rawat, AOR Ms. Saakshi Singh Rawat, Adv. Mr. Sunny Sachin Rawat, Adv. Mr. Kapil Sibal, Sr. Adv. Mr. Gopal Subramanium, Sr. Adv. Mr. Abhishek Manu Singhvi, Sr. Adv. Mr. Shashikiran Sheety, Advocate General Mr. Prateek K Chadha, A.A.G. Mr. Muhammad Ali Khan, A.A.G. Mr. Nishant Patil, A.A.G. Mr. Aman Panwar, A.A.G. Mr. Avishkar Singhvi, A.A.G. Mr. Naveen Sharma, AOR Mrs. Swati Bhushan Sharma, Adv. Mr. Sk Sharma, Adv. Mr. Amit Bhandari, Adv. Ms. Gauri Subramanium, Adv. Mr. Pavan Bhushan, Adv. Mr. Jaivardhan Singh, Adv. Mr. Omar Hoda, Adv. Ms. Rupali Samuel, Adv. Ms. Sumedha Rai Sarkar, Adv. Ms. Adoorya Harish, Adv. Mr. Sreekar Aechuri, Adv. Mr. Aniket Chauhaan, Adv. Ms. Eesha Bakshi, Adv. Mr. Arjun Sharma, Adv. Mr. Kamran Khan, Adv. Ms. Payal Gola, Adv. Mr. Hasan Abbas, Adv. Mr. Kapil Sibal, Sr. Adv. Mr. Kunal Vajani, Adv. Mr. Debanjan Mandal, Adv. Mr. Kunal Mimani, AOR Mr. Kartikey Bhatt, Adv. Ms. Shraddha Chirania, Adv. Ms. Aparajita Jamwal, Adv. Mr. Rishabh Parikh, Adv. Mr. Abhijit Chimni, Adv. Ms. Manisha Singh, Adv. Ms. Rupali Sam....
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....aranarayanan, Sr. Adv. Mr. Vishal Sinha, Adv. Mr. Shrutanjaya Bhardwaj, Adv. Mr. Madhav Gupta, Adv. Ms. Anindita Mitra, AOR Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Gaurav Kumar, Adv. Mr. Vishal Sinha, Adv. Mr. Pradeep Kumar Yadav, Adv. Mr. Shailendra Mani Tripathi, Adv. Mr. Sanjiv Misra, Adv. Mr. Shrutanjaya Bhardwaj, Adv. Mr. Naman Shrestra, Adv. Mr. Anjali Kumari, Adv. Ms. Pooja Shilpkar, Adv. Mr. Himanshu Tyagi, Adv. Mr. Madhav Gupta, Adv. Mr. Chand Qureshi, AOR Mr. Nishant Verma, Adv. Mr. Mukesh Kumar Thalour, Adv. Mr. Manjeet Singh, Adv. Mr. Vishal Tiwari, Adv. Mr. Mujahid Ahmad, Adv. Mr. Himanshu Gupta, Adv. Mr. Keshav Choudhary, Adv. Mr. Md.imran Siddiqui, Adv. Mr. Sudiep Srivastava, Adv. Mr. Pranav Sachdeva, AOR Ms. Neha Ratha, Adv. Mr. P. Rohit Ram, Adv. Mr. Sanyam Jain, Adv. Ms. Khushnoo Singhal, Adv. Mr. A.D.N. Rao, Sr. Adv. Dr. Suvidutt M.S., Adv. Ms. Deepika Singh, Adv. Ms. Disha Puri, Adv. Mr. Varun K. Chopra, Adv. M/s. VKC Law Offices Mr. Pratik R. Bombarde, Adv. Mr. Devendra Singh, Adv. Mr. Abhishek Kumar, Adv. Mr. Rohit Verma, Adv. Ms. Kirti Anand, Adv. Mr. Jitendra Kumar, Adv. Mr. Ashish Bansal, Adv. Mr. Barun Kumar Sinha, Adv. Mrs. Pratibha Sinha, Adv. Mr. Sneh ....
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.... 5, 7, 10 and 11 relating to the 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 70 IX. Justiciability of the functions exercised by the Governor and the President under Article 200 and Article 201 respectively 85 A. Limits of judicial intervention 99 X. Article 361 and its interplay with judicial review of actions under Article 200 103 XI. Opinion of the Court on the Presidential Reference. 108 I. Presidential Reference No. 1 of 2025. 1. In exercise of powers conferred under Article 143(1) of the Constitution of India, the President of India has on 13th May, 2025 referred fourteen questions relating to interpretation of powers of the Governor under Articles 200 and 201 along with certain ancillary questions for opinion of the Supreme Court. The context that occasioned the reference, followed by the questions are as follows; "PRESIDENT REPUBLIC OF INDIA WHEREAS Article 200 of the Constitution of India prescribes the powers of the Governor and the procedure to be followed while assenting to Bills, withholding as....
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....OW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Droupadi Murmu President of India, hereby refer the following questions to the Supreme Court of India for consideration and to report its opinion thereon, namely:- 1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India? 2. Is the Governor bound by the aid & 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? 3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable? 4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India? 5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the e....
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....rnment and the State Governments except by way of a suit under Article 131 of the Constitution of India?" II. Proceedings Before This Court. 2. As per the orders of the Chief Justice of India, the reference was placed before the Constitution Bench following the procedure prescribed under Order XXXVII of the Supreme Court Rules on 22.07.2025. Learned Solicitor General appeared for the Union of India, and we requested the Attorney General to assist the Court. 3. Formal notices were issued to States and Union Territories and they were asked to file written submissions. Pursuant to the filing of these submissions, hearing commenced on 19.08.2025 with the Attorney General addressed this Court on the scope of the reference. The Solicitor General who made exhaustive submissions on behalf of the Union of India. He was followed by Mr. Neeraj Kishan Kaul for the State of M.P., Mr. Harish Salve for the State of Maharashtra, Mr. Maninder Singh for the State of Rajasthan, Mr. K.M. Nataraj, ASG for the States of Orissa and Uttar Pradesh, Mr. Vikramjit Banerjee, ASG for the State of Goa, Mr. Vinay Navare for the Union Territory of Puducherry and Mr. Guru Krishna Kumar for the State of Ha....
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....view, or curative petition, in relation to the State of Tamil Nadu (supra) decision. 7. Extensive reliance was placed on the decision of this Court in Cauvery Water Disputes Tribunal, in Re: 1991 INSC 304; 1993 Supp. (1) SCC 96 (2) [5JB]. (hereinafter 'Cauvery (2)'). It was also suggested that in exercise of advisory jurisdiction, earlier decisions of this court cannot be overruled. It was further argued that the present reference seeks formulation of general and omnibus standards for constitutional authorities to follow, in the absence of any factual matrix warranting the same. Reliance was placed on In Re: Special Courts Bill 1978 1978 INSC 249; (1979) 1 SCC 380, paragraphs 21-26., wherein this Court had held that a reference must be refused when it is vague, hypothetical, speculative, general and omnibus. 8. In view of these submissions, we find that the preliminary objections on maintainability raised by these parties warrant the careful consideration of this Court before any discussion on the questions referred by the Hon'ble President. In doing so, it is necessary to first lay out the scope of advisory jurisdiction of this Court under Article 143, and the effect of an o....
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....ial courts to entertain cases relating to offences committed by individuals holding high political officers, during Emergency. (viii) Cauvery Water Disputes Tribunal, In Re 1991 INSC 304; 1993 Supp (1) SCC 96(2). - whether one party could override implementation of an interim order passed by the Water Dispute Tribunal, by way of an ordinance. (ix) Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid matter) 1994 INSC 479; (1993) 1 SCC 642. - advice sought on the factual issue of whether there existed a Hindu temple or Babri Masjid on the disputed land (this was returned unanswered) - see M. Ismail Faruqui (Dr) v. Union of India 1994 INSC 479; (1994) 6 SCC 360. (x) Special Reference No. 1 of 1998, Re 1998 INSC 402; (1998) 7 SCC 739.- issue of appointment of judges, and the binding effect of the recommendation of the Chief Justice which was not agreeable to the Government, at that time. (xi) Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Bill, 1980, In Re 2001 SCC OnLine SC 1493.- relating to return and permanent resettlement of people who left Jammu and Kashmir between 1947-1954, which was returne....
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....har v. Kameshwar Singh, 1952 INSC 28; (1952) 1 SCC 528 [5-Judge bench]; Union of India v. Valluri Basavaiah Chowdhary, 1979 INSC 93; (1979) 3 SCC 324 [5-Judge bench]; Purushothaman Nambudiri v. State of Kerala, 1961 INSC 331; 1961 SCC OnLine SC 361 [5-Judge bench]; Hoechest Pharmaceutricals Ltd. v. State of Bihar, 1983 INSC 61; (1983) 4 SCC 45 [3-Judge Bench]; State of Punjab v. Governor of Punjab, 2023 INSC 1017; (2024) 1 SCC 384 [3-Judge Bench].], the prescription of time limits under Articles 200 and 201 [Purushothaman Nambudiri v. State of Kerala, 1961 INSC 331; 1961 SCC OnLine SC 361 [5JB].], whether the Governor is bound by the aid and advice of the Council of Ministers when exercising such decision under Article 200 [Nabam Rebia & Bamang Felix v. Arunachal Pradesh Legislative Assembly, 2016 INSC 526; (2016) 8 SCC 1; Samsher Singh v. State of Punjab, 1974 INSC 154; (1974) 2 SCC 831; etc.], the justiciability [Hoechest Pharmaceutricals Ltd. v. State of Bihar, 1983 INSC 61; (1983) 4 SCC 45; Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., 2002 INSC 406; (2002) 8 SCC 182.] of the decision made by the Governor and President under these Articles, whether....
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....o impugn, and which answers 11 of the 14 questions, as per the parties opposing the reference - we find that the law is settled. 14. This Court has held that there is neither a particular format prescribed, nor a specific pattern while framing a reference. A reference is certainly not to be returned unanswered, on either of these counts, and rather require "appropriate analysis, understanding and appreciation of the content or the issue on which doubt is expressed, keeping in view the concept of constitutional responsibility, juridical propriety and judicial discretion" [Natural Resources Allocation (supra), paragraph 33.]. 15. Furthermore, Order XLII of the Supreme Court Rules, 2013 prescribes that the Attorney General, and the parties to whom notice is issued in terms of Rules 1 and 2, are the parties to bring out the relevant facts and law to the attention of this Court. It was also specifically held in Natural Resources Allocation (supra) that the written briefs and arguments advanced can be relied on to discern the legal controversies before this Court under Article 143 itself [Natural Resources Allocation (supra), see paragraph 31.2.]. Admittedly, the decision in State ....
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....d by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution." (emphasis supplied) 20. We find that the reasoning of Chandrachud, J. (speaking for the majority) in the 7-judge bench decision of In Re: Special Courts Bill is compelling, insofar as it holds that our opinion may even go so far as to "overrule, if necessary", the view taken earlier by this very Court. Pertinently, the Court in Natural Resources Allocation (supra), relying on the same paragraph (para 101) reiterated that this Court has the power to overrule a previous view. [Natural Resources Allocation, In re, Special Reference No. 1 of 2012, paragraph 50.]. 21. The argument that this reference amounts to an appeal in disguise, is also sufficiently answered in Natural Resources Allocation (supra), in which case this Court was considering a Reference that had been occasioned by an earlier decision of the Court in Centre for Public Interest Litigation v. Union of India 2012 INSC 68; (2012) 3 SCC 1. ["2G case"]. In this case too, maintainability of the Reference was challenged on the ground that it was an "indirect endeavour to unsettle and overturn the verdict ....
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.... said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order 40 of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. [See: Bengal Immunity Company Ltd. v. State of Bihar [(1955) 2 SCR 603: AIR 1955 SC 661 : (1955) 6 STC 446]]. Under the Constitution such appellate jurisdiction does not vest in this Court, nor can it be vested in it by the President under Article 143. To accept Shri Nariman's contention would mean that the advisory jurisdiction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same parties and the execut....
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....elevant or material facts or if it is manifestly wrong and capable of causing public mischief [...]". (emphasis supplied) 24. The Court in Natural Resources Allocation (supra) further noted that in various judgments, this Court had either explained, clarified or read down the ratio of previous judgments. Reference was made to this Court's decision in Keshav Singh (supra) and the pronouncements it had considered, and clarified by way of the 7-judge opinion rendered under Article 143(1), and it was held: "56. From the aforesaid decision in Keshav Singh case [AIR 1965 SC 745: (1965) 1 SCR 413] it is clear that while exercising jurisdiction under Article 143(1) of the Constitution this Court can look into an earlier decision for the purpose of whether the contentions urged in the previous decision did raise a general issue or not; whether it was necessary to consider the larger issue that did not arise; and whether a general proposition had been laid down. It has also been stated that where no controversy arose with regard to applicability of a particular facet of constitutional law, the comments made in a decision could be treated as not accurate; and further it c....
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....st, seek clarification on the propositions of law laid down in it, which have ramifications for the governance of all States, i.e., beyond the parties that were before it in that lis. 27. The discussion of the ratio of Cauvery (2) (supra) has already clarified that "sitting in appeal" would mean the variation, or vacation of the operative order in a concluded lis. It was held that Article 143 cannot be invoked to overturn a concluded adjudication inter-se parties, but this cannot be conflated with the authority of this Court to answer general questions of law referred to it by the Hon'ble President, that hold constitutional importance. In this regard, the submission made by the Attorney General, and Solicitor General - that the present reference seeks clarification of constitutional principles for future governance, and not the setting aside of an already awarded decree, or the relief granted therein - is hereby, duly accepted. 28. In light of the findings elaborated hereinabove, we find that the preliminary objections made in relation to similarity with the findings, or issues raised in State of Tamil Nadu (supra) ought to be dismissed at the threshold, and the various quest....
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....nificant prefatory observations on the use of comparative law and precedents are in order. Copious written submissions and extensive arguments have been employed by counsel to underscore the functioning of the Westminster parliamentary model and its workings in the United Kingdom. They sought to draw parallels on the discretionary powers of the Crown and the limitations thereon. On the other hand, arguments were advanced on the Presidential system prevalent in the United States of America, and the strict separation of powers practiced there. This Court believes that our constitutional truth does not lay in either of these extremes but is grounded in the way we have successfully, and if we may add, proudly, worked our Constitution over three quarters of a century. While our Constitutional text may have been inspired by comparative outlook, its interpretation and working, we believe is truly swadeshi. 33. Unlike the English experience of an unwritten constitution, we have a written text. English constitutional law did not have to grapple with vital questions of federalism and an inherently diverse country. It did not have to deal with distribution of legislative powers between the....
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....ouse), prorogue, dissolve the House^3, the right of the Governor to address the House^4, the right to send messages to the House^5, special address by the Governor^6, and the duty to give oath to members^7. In respect of legislative business in the House, the Governor is tasked with the responsibility of laying before the House the annual financial statement^8 and statement for supplementary, excess and additional grant^9. The Governor's recommendation is constitutionally made a prerequisite for demand of grant under Article 203(3)^10 and for introducing, moving and passing a Money Bill under Article 207^11. It can thus be discerned that the Constitution enjoins several legislative functions upon the Governor and crucial legislative functions of the State legislature, including the entire ambit of financial statements, appropriations and money bills are constitutionally triggered only upon the recommendation of the Governor. It is against this backdrop that Article 200 of the Constitution needs to be interpreted. 35. Article 200 reads as follows: "200. Assent to Bills.-When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a....
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....rious draft provisions in the constitution making process. The drafting process and Constituent Assembly Debates do not provide clear insights as to the exact nature of the different options available and are of limited assistance in this regard. But the aspects regarding the insertion and deletion of the words "in his discretion" to the proviso of Article 175 (precursor to Article 200) in the Constituent Assembly Debates merit some consideration, which it will receive in the following section of this opinion. C. Competing arguments on the options available to the Governor under Articles 200 and 201 38. The submission made on behalf of the Union of India, and some of the States that have supported the reference, is that the text of Article 200 is explicit-upon presentation of the Bill, the Governor can assent to the Bill, or he can withhold assent therefrom or he can reserve the Bill for the consideration of the President. The first proviso to Article 200 regarding return of a Bill to the Legislature, according to these submissions, is an additional option available to the Governor, making it a total of four alternatives that the Governor can choose from. They place reliance ....
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....The Court was called upon to decide whether the assent of the Governor was a perquisite for the reservation of the 'law' for the assent of the President. The mechanics of Article 200 and options before the Governor were never in issue. In Valluri (supra), yet again, the question posed was far stranger to the substance of Article 200. The Court therein was engaged with the question as to whether a resolution passed under Article 252 by the State legislature must also contain the signatures of the Governor and whether the Governor was part of the legislature for the purpose of Article 252. Hoechst (supra) pertained to challenge to certain provisions of the Bihar Finance Act, 1981 on the ground that it was repugnant to laws made by the Union. The Court had no occasion to consider the options before the Governor under Article 200. E. Construction of the plain text of the Constitution to determine the options available for the Governor under Article 200 42. The foregoing discussion brings us to the plain text of Article 200. A literal reading of the substantive provision of Article 200, a simple and attractive method, presents to the Governor three options - each distinct and sepa....
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....bstantive part of Article 200, limiting the full play of the word "withholds" employed therein. 46. The manner in which the phrase "shall not withhold assent therefrom" is employed in the first proviso to Article 200 and conspicuously absent from a similarly worded proviso to Article 201, is a clear indication that the first proviso was indeed limiting the full import of the term "withholds" in the substantive part of Article 200. 47. Such a reading of the first proviso is also consistent with the constitutional import of the second proviso to Article 200. The second proviso mandates that a Governor shall not assent to, but reserve for the consideration of the President, any Bill which, in the opinion of the Governor, derogates from the powers conferred on the High Court by the Constitution. Akin to the first proviso, the second proviso too does not create an exception, but qualifies the full width of the verb - "assent" and limits its operation upon satisfaction of the conditions specified therein. It impliedly limits the option of the Governor to even withhold and return the Bill but obliges the Governor to mandatorily reserve the Bill for consideration of the President in ....
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....thheld simpliciter, we find that such submission ought to be squarely rejected. 50. Even in the case of a Bill, which is not a Money Bill, the first proviso disempowers the Governor from withholding the Bill when it is presented again to the Governor. What is impermissible to withhold through a dialogic process in the first proviso, cannot be permitted to be withheld abruptly or simpliciter by the Governor alone, employing the "withholds" option in the substantive part. This fortifies our reasoning that term "withholds" in the substantive part of Article 200 is conditioned and qualified by the first proviso. 51. We are of the firm opinion that if two interpretations are possible, then an interpretation that favors a dialogic process, which encourages institutional comity and deliberation between constitutional institutions - in this case that of the Governor and the House(s) - must be preferred over an interpretation that limits or eschews such a dialogue. Such an interpretation prevents institutional redundancy. We observe a deliberate constitutional design in incorporating the Governor within the definition of Legislature in Article 168. The institution of the Governor and ....
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....l passed by a legislature (which was not elected based on universal adult suffrage), cannot and must not inform the interpretation of a democratic, republican, and an emancipatory Constitution like ours. 55. It was also urged by the counsel supporting the reference that the term "may" employed in the first proviso to Article 200 indicates the power to withhold and the power to return the Bill to the House(s) are divorced, and the Governor "may" exercise the option to return the Bill only in some cases. We are of the opinion, that 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. F. Interpretation and Construction of Article 200 in the context of Federalism as a basic feature of the Constitution 56. At this stage, it is apposite to refer to the federal nature of our Constitution. We are quite conscious that our law reports are replete with enough judgments on this count and our opinion in a Presidential reference is not the ideal occasion for an exhausti....
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....e Union and are not in many respects independent."^23 58. In S. R. Bommai v. Union of India 1994 INSC 111; (1994) 3 SCC 1 [9JB]., this Court described the nature of the Indian polity as that of pragmatic federalism and cautioned against an approach that affixes a theoretical label to the Constitution. After an exhaustive survey of the constitutional provisions and case law, the Court concluded that (B.P. Jeevan Reddy, J.) - "276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. ... must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle - the outcome of our own historical process and a recognit....
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....inst the concept of strong federalism. [...] 65. The concept of federalism in our Constitution, it has been held, is vis-à-vis the legislative power as would be evident by various articles of the Constitution. In fact, it has come into focus in the context of distribution of legislative powers under Article 246 [ITC Ltd. v. Agricultural Produce Market Committee, 2022 INSC 44; (2002) 9 SCC 232.]." (emphasis supplied) 61. In Government (NCT of Delhi) v. Union of India 2019 INSC 194; (2018) 8 SCC 501 [5JB]., this Court characterized federalism in India, to be 'collaborative' or 'cooperative' federalism [taking forward the description in State of Rajasthan (supra) - this is where the term cooperative federalism from Austin's work, [2019 INSC 194; (2018) 8 SCC 501, paragraph 121.] is recognized by this Court]: "111. The aforesaid idea, in turn, calls for coordination amongst the Union and the State Governments. The Union and the States need to embrace a collaborative/cooperative federal architecture for achieving this coordination. [...] 116. Thus, the Union and the State Governments should always work in harmony avoiding constitutional d....
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....cles 371-A to 371-J are examples of special arrangements for different States. This is nothing but a feature of asymmetric federalism, [State (NCT of Delhi) v. Union of India, (2023) 9 SCC 1] which Jammu and Kashmir too benefits from by virtue of Article 370. The State of Jammu and Kashmir does not have "internal sovereignty" which is distinguishable from the powers and privileges enjoyed by other States in the country. In asymmetric federalism, a particular State may enjoy a degree of autonomy which another State does not. The difference, however, remains one of degree and not of kind. Different States may enjoy different benefits under the federal set-up but the common thread is federalism." (emphasis supplied) 63. What then emerges from this brief discussion on the nature of Indian federalism, is that the States are entitled to determine the legislative policy within the legislative spheres constitutionally allotted to them subject to the constitutional provisions and framework. What can be observed is that this Court's understanding of the nature of Indian federalism is not unidimensional. Rather, the court has consciously adapted its view of the nature of federalis....
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....rties supporting the reference submitted that Article 200(1) was an instance of the exception to the general rule of 'aid and advice' as under Article 163, and consequently, to limit the Governor's power of exercising discretion, would be to render Article 163(2) redundant. It was further argued that the deletion of "in his discretion" from the proviso to Article 175 (precursor of Article 200) during the Constituent Assembly Debates, only related to the option of returning a Bill with comments to the Legislature under the first proviso, and not to the substantive provision, wherein the Governor still retained discretion. 66. Parties opposing the reference argued that the Governor is a formal head, and the sole repository of executive power but is incapable of acting, except on, and according to the advice of their Council of Ministers. Reference was made to Section 75 of the Government of India Act, 1935 and the Constituent Assembly Debates, to submit that all residual discretion contemplated under Section 75, had been intentionally eliminated in draft Article 175 (i.e., Article 200), by dropping "in his discretion" from the substantive part and first proviso. It was their submi....
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....hree judgments arose from facts not relating to the discretion of the Governor vis-à-vis Article 200, their observations as Constitution Benches of this Court, are still of relevance in interpreting the provisions. 69. The judgment in Samsher Singh (supra) arose from appeals relating to the appointment of persons other than district judges to the State Judicial Services under Article 234. On the discretion exercised by the Governor, it was held that: "54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an administrator of an adjoining Union territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b), 371-A(1)(d) and 371-A(2)(b) and 371-A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this conn....
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.... the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution." (emphasis supplied) 70. In M.P. Special Police Establishment (supra), this Court was considering the legality of grant of sanction by the Governor under Section 197 of the Criminal Procedure Code, for the prosecution of two ministers accused under the Prevention of Corruption Act, 1988, after the Council of Ministers had refused sanction on the ground that no prima facie case had been made out in the Lokayukta report. On the discretion that is exercisable by the Governor under the Constitution, this Court held that: "11. Mr Sorabjee submits that even though normally the Governor acts on the aid and advice of the Council of Ministers, but there can be cases where the....
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....referred to various paragraphs [Nabam Rebia (supra), paragraphs 147-154, 257, and 300.] in Nabam Rebia. In that case, the majority (through Khehar, J.) opined on the dual nature of legislative and executive functions of the Governor, with specific reference to Article 154, 161, 163, and 166 on the executive nature of power, and Article 168, 158, 200, 201, 213 and 174 in relation to the legislative role. Though the case was particularly on the responsibility under Article 163, this Court undertook a comprehensive review of the Governor's role and powers under the Constitution. On the issue of Article 200, and the discretion of the Governor, the majority opinion extracted the Justice M.M. Punchhi Commission Report on "Constitutional Governance and the Management of Centre-State Relations" and specifically affirmed: "151. The important observations in the Justice M.M. Punchhi Commission Report, with reference to Article 163(2), are contained in Para 4.5. Relevant extract of the same is reproduced below: "4.5. ... Article 163(2) gives an impression that the Governor has a wide, undefined area of discretionary powers even outside situations where the Constitution has e....
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....uld not be construed otherwise. [...] (emphasis supplied) 73. Madan Lokur, J., in his concurring opinion recognises that the Governor has powers that are either specifically delineated, or implied in the Constitution: "375. [...] The Governor is expected to function in accordance with the provisions of the Constitution (and the history behind the enactment of its provisions), the law and the rules regulating his functions. It is easy to forget that the Governor is a constitutional or formal head-nevertheless like everybody else, he has to play the game in accordance with the rules of the game-whether it is in relation to the Executive (aid and advice of the Council of Ministers) or the Legislature (Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly). This is not to say that the Governor has no powers-he does, but these too are delineated by the Constitution either specifically or by necessary implication. Failure to adhere to these basic principles is an invitation to enter the highway to the danger zone." (emphasis supplied) We are of in agreement with the view affirmed in Nabam Rebia that Article 200 of the Co....
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....only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. [...]" [State of Tamil Nadu (supra), paragraph 308.] 77. The Court in State of Tamil Nadu (supra), cites this view on the "limited nature of the scope of exercise of discretion by the President and the Governor" [Paragraph 309.] with approval. Pertinently, the view propounded by Iyer, J, does not form the majority in Samsher Singh (supra), and is in fact contrary to the provisions discussed in the majority opinion. In light of this Court's judgment in Nabam Rebia (supra) - specifically the majority opinion authored by Khehar, J., and Lokur, J.'s concurring opinion, such a view cannot be held to be the correct position of law. 78. Therefore, the conclusion^25 arrived at in State of Tamil Nadu (supra) that the 7-judge bench in Samsher Singh (supra) held that the second proviso to Article 200, is the only instance that contemplates discretion of the Governor, cannot be relied upon as good law. We are respectfully unable to countenance such a reading of Samsher Singh (supra) and find that ....
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....cessary implication where the constitutional context requires exercise of this discretion. 82. In such circumstances, it is for this Court to determine from the spirit and text of the Constitution, and from the manner in which the Constitution has been practiced, to see whether the Governor requires to be conferred discretion in exercise of his function under Article 200. We are of the firm view, that the Governor must be given this constitutional option, i.e., to exercise his discretion under Article 200, for the reasons enumerated herein. 83. The Constitution itself provides in as many as five provisions - on law-making relating to acquisition of estates [First proviso to Article 31A.], giving effect to certain directive principles [Proviso to Article 31C.], where there is inconsistency between law made by Parliament and State Legislatures [Article 254 (2).], exemption from taxation by States in respect of water or electricity in certain cases [Article 288 (2).], and during financial emergency [Article 360.] - that such law, having been reserved for the assent of the President, will not take effect until such assent is granted (as prescribed under Article 201). The act of '....
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....ident's consideration. As pointed out earlier in this opinion as well, it is reiterated that the Indian Constitution is unique, insofar as it must deal with distribution of legislative powers between the Union and the State on various counts, including natural resources, trade, commerce, and taxation. Our constitutional history itself contains examples wherein the State government has passed a law, contrary to decisions of this Court, and further impinging on the rights of other States, in the sharing of natural resources. Reference may be made to the case in Punjab Termination of Agreement Act, 2004, In Re 2016 INSC 1018; (2017) 1 SCC 121 [5JB]. and Cauvery Water Disputes Tribunal, In Re 1991 INSC 304; 1993 Supp. (1) SCC 96 (2) [5JB]. 86. In such a context, the role of the President in protecting and defending the Constitution - in binding the Union as a cohesive unit - is crucial. It is reiterated, that the President will be unable to exercise his functions, until the Governor a priori reserves the Bill for his assent. It is unlikely that the Council of Ministers - without whose support the Bill could not have been passed by the Legislature - will advise the Governor, to retur....
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....assent was a precondition only if and when the Bill is reserved for his consideration. Rather, the deliberate use of this phrasing indicates that these are instances where the Governor must reserve the Bill for the President's consideration, and without whose assent, these Bills cannot become law. The clear intent behind the explicit phrasing in these provisions, is to demonstrate that the Governor is obliged to exercise his discretion and reserve such Bills for the assent of the President. 90. In light of the reasoning elaborated hereinabove, we are of the considered opinion that contrary to the articulation in State of Tamil Nadu (supra) (that of 'necessary implication') these provisions are instances where the Governor, is explicitly, obligated and required to discharge his function of reserving the said Bill for the consideration of the President, without whose assent, such Bill cannot become law. 91. On the issue of discretion of the Governor, it is also relevant to point out that prior to the insertion of the Tenth Schedule to the Constitution, it was a realistic possibility that Bills could be passed without the support of the Council of Ministers. Such a situation is ....
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.... (emphasis supplied) It was recognised that an illustrative list was not possible at that stage, since discussion on various articles (including Article 200) that contemplated discretion of the Governor, had not yet transpired. In any event, the Constituent Assembly Debates in relation to Article 200 (draft Article 175) do not reflect the crucial aspect that the President, under the text of the Constitution, exercises powers over granting assent to Bills passed by the State Legislature, at least in certain situations enumerated above^33. We do not think that the observations in the Constituent Assembly Debates can bind us to the interpretation suggested by the parties opposing the reference. 94. We are conscious that a government run within the four corners of a written Constitution, must be responsible. Having already held that the Governor does not have powers simpliciter to withhold, we find that the Governor has discretion in the context of referring a Bill for the consideration of the President, or for returning the Bill to the Legislature with his comments. We do not think that this interpretation confers any unfettered powers on the Governor. In fact, it does not in....
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....Assembly presents the Bill to the Governor after reconsideration under the first proviso 98. As we have reasoned earlier, as per the substantive provision, and first proviso of Article 200, the Governor at the first instance has three options - to assent, reserve the Bill for the consideration of the President, or withhold and return the Bill with a message for reconsideration of the State Legislature. The exercise of discretion in discharging his function at this first stage, is essential to initiate the dialogic process between the constitutional functionaries. The second proviso reaffirms this exercise of discretion, and specifically lays out a situation wherein if "in his opinion" the Governor finds that the Bill proposed may derogate from the powers of the High Court or endanger its position as per the Constitutional scheme, assent should not be granted, and the same shall be reserved for the President's consideration. However, another aspect of interpretation of Article 200 that arises for our consideration, is the options that are available to the Governor after he has, at the first instance, exercised his discretion and chosen to withhold a Bill and return it to the Stat....
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....ates the President's consideration specifically when a Bill may potentially affect the powers of the High Court, and its position or function, within the constitutional scheme. Therefore, we are of the firm opinion that the reading of Article 200, which recognises both options - to grant assent, or reserve the Bill for the President - further strengthens, and increases the potential for the dialogic and consultative process that our Constitution values at its core, rather than retracting from it. 102. As per parties opposing the reference, a Bill can be returned only once at the option of the Governor, or the President (under the first provisos to Articles 200 and 201, respectively). This would imply that the first proviso to Article 200 is of the same nature as the proviso to Article 201. This is textually incorrect for two reasons: (1) "shall not withhold therefrom" is absent in Article 201; and (2) the stipulation of six months period on the Legislature to reconsider the Bill, is absent in Article 200. This demonstrates that although the return of the Bill by the President under the first proviso of Article 201 is routed through the Governor, the return of t....
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....nt, and rather, it only opens the door for judicial review. Reliance was placed on the findings of the Sarkaria Commission (Chapter V), and Punchhi Committee Report which prescribed a maximum period of six months after a Bill was presented, as a time limit on the Governor under Article 200. 106. The consideration of prescribing timelines to actions by the President under Article 111 (draft Article 91), fell before the Constituent Assembly as well. The Assembly specifically rejected the concept of a timeline wherein Dr. B.R. Ambedkar's amendment to delete "six weeks" from the draft clause of Article 91, was accepted^35. Despite H.V. Kamath's remarks in support of a fixed timeline to encourage prompt action, there is conspicuous absence of any timeline in Article 111 of the Constitution, as adopted in 1950^36. A similar logic would apply to Article 200, in relation to the Governor's function. 107. 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 t....
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....ll referred to him for his assent. Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide : Article 197(1)(b) and (2)(b)). In fact the proviso to Article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message. Therefore, the failure to make any provision as to the time within which the Governor or the President should reach a decision may suggest that the Constitution-makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of lapse on the dissolution of the Assembly. That is why no time limit was prescribed by Articles 200 and 201. Therefore, in our opinion, the scheme of Articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly, and that incidentally shows that the provisions of Article 196(5) are exhaustive." (emphasis supplied) 111. In State of Tamil Nadu (supra), the Court arrived....
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....gislative Assembly 2020 INSC 65; (2021) 16 SCC 503 [3JB]. In that case, the Court was considering whether the Speaker could be directed to decide disqualification petitions within a 'reasonable period' of time. The prescription of reasonable timeline in that case, was in the context of the Speaker's quasi-judicial function, of taking a decision on disqualification petitions, as under the Tenth Schedule. The prescription of a reasonable period of time for a quasi-judicial function, wherein the Speaker acts as a Tribunal, cannot be equated with the gubernatorial function and the Governor's exercise of discretion in that regard under Article 200. Thus, this precedent too offers no assistance. Reliance on State of Telangana (supra), wherein this Court merely held that the phrase "as soon as possible" in the first proviso to Article 200, carried "significant constitutional content and must be borne in mind by constitutional authorities" [State of Telangana (supra), paragraph 2.], too, offers no assistance. The decision in Durga Pada Ghosh v. State of W.B. (1972) 2 SCC 656 [3JB]. was also referred to - where the Court interpreted "as soon as may be" in Article 22(5) of the Constitution, ....
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....' has been rendered almost academic, we deem it appropriate to briefly state certain observations, given that Question 10 specifically enquires regarding the scope of Article 142 in the context of 'deemed consent' and is of some constitutional importance. 117. We find that the Constitution framers were categorical as to when deeming provisions were to operate in the context of legislative functions. Article 109(4) and 109(5), deem a Money Bill to be passed by Council of States either when the House of the People do not accept the suggestions given by the Council of States or if the Council of States does not return the Money Bill to the House within fourteen days. Similar provisions can be found in Article 198(4) and (5). Similarly, Articles 107, 108, 196, 197, 213 and 239B also contemplate a form of deeming, as a consequence. Such deeming clauses are absent in the case of Articles 200 and 201, therefore, we find that by judicial intervention such assent cannot be deemed. 118. The concept of 'deemed assent' in the context of Articles 200 and 201 presupposes that one constitutional authority (herein, the Court), could play a 'substitutional role' for another constitutional fun....
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....oncerned 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. 120. We find that the summation of case law on Article 142 is uncalled for, but we only refer to the observations made by this Court in the following judgments, which fortify our conclusions. It is a matter of settled law, that jurisdiction under Article 142^39 cannot be invoked to achieve results that are contrary to the Constitution, or statutory provisions. Dealing with the powers of this Court under Article 142, in Prem Chand Garg v. Excise Commissioner, U.P. 1962 INSC 311; AIR 1963 SC 996 [5JB], a Constitution Bench of this Court held: "14. [...] we ought to bear in mind that though the powers conferred on this Court by Article 142(1) are very wide, and the same can be exercised for doing complete justice in any case, as we have alre....
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....ion that inexplicable delay on the count of the Governor in exercising his function under Article 200, is both justiciable and that on account of such unexplained delay, the power under Article 142 can be deployed to substitute the Governor's actions with a judicial order. This line of reasoning has also been adopted by the Counsel opposing the reference. We find this approach to be erroneous for the following reasons: Firstly, the decision in A.G. Perarivalan (supra) was tendered in the context of Article 161 of the Constitution, dealing with the executive power of pardon. Secondly, this Court came to the conclusion that the Governor is bound by the aid and advice of the Council of Ministers in this regard, and advice having been so tendered after an inexplicable delay of over 2 years, is subject to judicial review. The conclusions of this Court in A.G. Perarivalan (supra) at paragraphs 38.1 to 38.3, and 38.6 are to be noticed in this regard: "38.1. The law laid down by a catena of judgments of this Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution. ....
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....ld that the Governor is not bound by the aid and advice of the Council of Ministers in exercise of his functions under Article 200, the prescription of the timelines as is delineated in paragraphs 260- 261 of State of Tamil Nadu (supra) apart from being a functional and absolute restraint on the Governor and President, also suffers from legal infirmities. Firstly, it prescribes a one-size-fits-all timeline, dehors the nature of the Bill and complexity of the issue. Secondly, at the expiry of this one-size-fits all timeline, it creates a right for judicial redressal, prima facie rendering the act of the Governor or President suspect upon the expiry of such timeline. Both these consequences, in our considered view, were uncalled for as they were neither envisioned when we adopted the Constitution, nor they are borne out of our constitutional practice. 126. The judgment in State of Tamil Nadu (supra), arrives at the conclusion that the timelines devised by it are not being incorporated into the Constitution, but are only tools^41 of judicial review for evaluating the exercise or non-exercise of functions of the Governor and the President. In other words, the Court comes to the conc....
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.... 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. IX. Justiciability of the functions exercised by the Governor and the President under Article 200 and Article 201 respectively 129. The present reference seeks categorical opinions as to the justiciability of the functions exercised by the Governor under Article 200 and that of the President under Article 201. 130. The judgment of this Court in State of Tamil Nadu (supra) is the first to hold that the exercise of functions under Articles 200 and 201 are justiciable. It, thereafter, prescribes an elaborate regime delineating the nature and grounds for justiciability [Discussion from paragraph 361 onwards, with conclusions at paragraphs 386-387.], which are not being extracted herein for the sake of brevity. 131. State of Tamil Nadu (supra) discusses the cases of Kameshwar (supra), Hoechst (supra), Bharat Sevashram Sangh v. State of Gujarat 1986 INSC 174; (1986) 4 SCC 51 [2JB]., Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra N....
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....Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. A Bill which attracts Article 254(2) or Article 304(b) where it is introduced or moved in the Legislative Assembly of a State without the previous sanction of the President or which attracted Article 31(3) as it was then in force, or falling under the second proviso to Article 200 has necessarily to be reserved for the consideration of the President. There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the....
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....the meeting held in the Ministry of Home Affairs, Government of India on August 3, 1973 to discuss the Bill it was suggested by the representatives of the Central Government that the provisions of the Bill which did not exclude institutions established or administered by the minorities from their scope were repugnant to Article 30 of the Constitution and therefore the Bill should be suitably amended. It was also suggested to the representatives of the State Government that it would be better to carry out the requisite amendments by promulgating an ordinance. Accordingly the draft of the ordinance which was ultimately promulgated as Ordinance 6 of 1973 was forwarded for the instructions of the President under Article 213(1) of the Constitution. Thereafter the draft of the Ordinance and the Bill were both considered by the President and he assented to the said Bill and issued instructions as required by the proviso to Article 213 of the Constitution for the promulgation of the said Ordinance on September 28, 1973. Accordingly the said Bill became law on its publication on the very same day. The Ordinance was issued on September 29, 1973. In the circumstances it cannot be said that th....
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....n Bench of this Court that judicial scrutiny over the Governor's discharge of his function under Article 200, was not justiciable: "71. [...] By its very nature, it would not be possible for this Court to reflect upon the situations in which the power under Article 200 can be exercised. This was noticed in the judgment of this Court in Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] . Excluding it from judicial scrutiny, the Court held: (SCC pp. 100-101, para 86) [...] 72. Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] is an authority for the proposition that the assent of the President is non- justiciable. Hoechst [Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 : 1983 SCC (Tax) 248] also lays down that even if, as it turns out, it was not necessary for the Governor to reserve a Bill for the consideration of the President, yet if it was reserved for and received the assent of the President, the law as enacted cannot be regarded as unconstitutional for want of "proper" assent. 73. The above decisions essentially answer the submissions wh....
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....wrongly given. We are also not considering the question that - whether "assent" given without considering the extent and the nature of the repugnancy should be taken as no assent at all[...] 29. We further make it clear that granting of assent under Article 254(2) is not exercise of legislative power of the President such as contemplated under Article 123 but is part of the legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court." (emphasis supplied) Notably, paragraph 27 of Kaiser-i-Hind (supra) does not find mention in the reasoning of State of Tamil Nadu (supra). 137. The decisions in Hoechst Pharmaceuticals (supra), and B.K. Pavitra (supra) both arose from a situation wherein grant of assent was specifically challenged, unlike the case in State of Tamil Nadu (supra) where in fact, this question did not arise. Pertinently, the various decisions discussed in the foregoing paragraphs were of larger bench strength (B.K. Pavitra being a coordinate bench) as compared to in State of Tamil Nadu (supra) and explicitly held that a merits-review or the correctness of t....
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....usticiable. We find that such a conclusion belies logic. Taking this line of reasoning further, if the reservation of a Bill, or withholding and returning it to the Legislature, is justiciable, then the grant of assent too, would necessarily have to be subject to judicial review. This opens another front to challenge a Bill, and the resulting legislation. Suppose for instance, that the Legislature passes a Bill, and the Governor accords assent under Article 200. Apart from the grounds taken to impugn the validity of the resulting Act, the grant of assent by the Governor itself, can become a ground for challenge. Those who bring such a challenge to Court, can effectively challenge the substantive grant of the Governor's assent on merits, arguing instead that it ought to have been reserved for the President's consideration, or sent back with certain comments. This also throws up the question of who can make such a challenge to the assent granted by the Governor. 141. The most drastic consequence of accepting that assent, reservation or return can be challenged, is that in any of the formulations of this Court in State of Tamil Nadu (supra), it is not the enactment which will be br....
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....ph 456.24 of State of Tamil Nadu (supra) lays out five categories of instances wherein the Governor's act of reserving a Bill for consideration of the President can be assailed by the State Government before the High Court, and three grounds wherein the President's choice to withhold assent, can be similarly challenged before this Court. These grounds include - when a Bill is reserved under the second proviso to Article 200, when the Bill attracts any provision that requires the President's assent as a pre-requisite for proper enactment and enforcement of the law, where the Bill imperils democracy or democratic principles, when the Governor is personally dissatisfied or for political expediency, or to challenge the Governor's inaction upon being presented a Bill under Article 200. With regards to the President, the grounds identified include withholding assent in an arbitrary or mala fide manner, when the Bill is reserved as being patently unconstitutional, or challenging the President's inaction. As per the framework contained in the judgment, specific redressal is possible through court intervention in each of these scenarios. 146. The fundamental flaw in this line of reasonin....
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....at the discharge of the Governor's or President's functions under Articles 200 and 201 respectively, is not justiciable. 149. Further, we are of the firm view that 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 we practice our constitutionalism 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. 150. The same logic applies to the President's assent under Article 201 as well. Consider for instance, a Bill that is reserved for the President's consideration, which is thereafter assented to by him. Grounds for ....
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....eoples' will, to a procedural impasse and frustrate lawmaking would be antithetical to the values and spirit of the Constitution. That the Governor enjoys discretion under various provisions, is no longer res integra. However, the question we are confronted with is whether the constitutional breadth of discretion extends to protecting an indefinite or prolonged inaction of the Governor under Article 200. We are of the considered opinion that while the merits of action taken by the Governor under Article 200 cannot be looked into by Courts - inaction that is prolonged, unexplained and indefinite, will certainly invite limited judicial scrutiny. 155. 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 inter-dependent 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 constitutional scheme, thus, abhors inaction. In other words, our constitutional scheme w....
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....g into force Section 30 of the Act. It is not clear whether the Central Government has applied its mind at all to the question whether Section 30 of the Act should be brought into force. In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring Section 30 of the Act into force or not. If on such consideration the Central Government feels that the prevailing circumstances are such that Section 30 of the Act should not be brought into force immediately it is a different matter. But it cannot be allowed to leave the matter to lie over without applying its mind to the said question. Even though the power under Section 30 [sic Section 1(3)] of the Act is discretionary, the Central Government should be called upon in this case to consider the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India. The learned Attorney-General of India did not seriously dispute the jurisdiction of this Court to issue the writ in the man....
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....from being "answerable to any court" for acts "done or purported to be done" in the exercise of office. Article 361 was characterized as a 'constitutional insulation' against judicial intervention of any kind - manner, reasons, or timing of the choice so exercised under Article 200, thus precluding coercive relief or process that would require the Governor to explain or modify any such choice made. Heavy reliance was placed on this Court's Constitution Bench decision in Rameshwar Prasad (VI) v. Union of India 2006 INSC 42; (2006) 2 SCC 1 [5JB]. Counsel also referred to Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly 2016 SCC OnLine SC 94 (order dated 01.02.2016), B. R. Kapur v. State of T.N. 2001 INSC 453; (2001) 7 SCC 231 [5JB]. and Anindita v. Pranab Kumar Mukherjee (2018) 15 SCC 628 [2JB]. 162. Counsel opposing the reference, too, relied on the decision in Rameshwar Prasad (VI) (supra) and submitted that the President and Governor, are both personally immune and the Courts are restrained from issuing any direction for even filing an affidavit, to assist the Court. This immunity under Article 361, however, does not preclude the Court from examining the va....
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....he Governor, the grounds of mala fide or being ultra vires would not be examined by the Court. [...]. 173. A plain reading of the aforesaid article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any court for the exercise and performance of their powers and duties. Most of the actions are taken on the aid and advice of the Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala fides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal ma....
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....dent, 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. 165.2 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. 165.3 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 for the Governor to discharge his function under Article 200 within a reasonable time period, without making any observations on the merits of the exercise of his discretion. 165.4 Article 361 of the Constitution is an absolute bar on judicial review in relation to personally subjecting the Governo....
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....rnor's legislative role under Article 200 cannot be supplanted by another constitutional authority. 165.12 We have already indicated in our opinion, that Question 12 relating to the Article 145(3) and the composition of benches in this Court that hear cases of constitutional importance is irrelevant to the functional nature of this reference, and is returned unanswered. 165.13 We have also indicated in our opinion that Question 13 concerning the power under Article 142 is overly broad, and not possible to answer in a definitive manner. Our opinion on the scope of Article 142 in the context of the functions of the Governor and President has already been answered as a part of Question 10. 165.14 Question 14 - pertaining to this Court's jurisdiction to resolve disputes between the Union and State Governments outside of Article 131 - is also found to be irrelevant to the functional nature of the reference and hence returned unanswered. ----------------------- Notes: 1. "155. Appointment of Governor.-The Governor of a State shall be appointed by the President by warrant under his hand and seal." 2. "168. Constitution o....
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....n such address." 7. "188. Oath or affirmation by members.-Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule." 8. "202. Annual financial statement.- (1) The Governor shall in respect of every financial year cause to be laid before the House or Houses of the Legislature of the State a statement of the estimated receipts and expenditure of the State for that year, in this Part referred to as the "annual financial statement"." 9. "205. Supplementary, additional or excess grants.- (1) The Governor shall- (a) if the amount authorised by any law made in accordance with the provisions of article 204 to be expended for a particular service for the current financial year is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement for that year; or (b) i....
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....]" 13. Section 75, Government of India Act, 1935, which reads as follows: "75. Assent to Bills. A Bill which has been passed by the Provincial Legislative Assembly or, in the case of a Province having a Legislative Council, has been passed by both Chambers of the Provincial Legislature, shall be presented to the Governor, and the Governor in his discretion shall declare either that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the Governor-General: Provided that the Governor may in his discretion return the Bill together with a message requesting that the Chamber or Chambers will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the Chamber or Chambers shall reconsider it accordingly." 14. 1952 INSC 28; (1952) 1 SCC 528 [5JB]. Reference to paragraph 235: "235. [...] The procedure to be followed after a Bill is passed by the State Assembly is laid down in Article 200. Under that article the Governo....
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.... "on the advice of the Council of Ministers" reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. [...]" 17. "199. Definition of "Money Bills".- (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:- (a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the regulation of the borrowing of money or the giving of any guarantee by the State, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the State; (c) the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of moneys into or the withdrawal of moneys from any such Fund; (d) the appropriation of moneys out of the Consolidated Fund of the State; (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of the State, or the increasing of the amount of any such expenditure; (f) the receipt of money on account of the Consolidated Fund of the St....
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....ded to that House the consideration of the Bill." (emphasis supplied) 20. In terms of (2) and (5) of Article 198, which reads as follows: "198. Special procedure in respect of Money Bills.- (1) A Money Bill shall not be introduced in a Legislative Council. (2) After a Money Bill has been passed by the Legislative Assembly of a State having a Legislative Council, it shall be transmitted to the Legislative Council for its recommendations, and the Legislative Council shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the Legislative Assembly with its recommendations, and the Legislative Assembly may thereupon either accept or reject all or any of the recommendations of the Legislative Council. (3) If the Legislative Assembly accepts any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Legislative Council and accepted by the Legislative Assembly. (4) If the Legislative Assembly does not accept any of the recommendations of the Legislative Council, the Money Bill shall be deemed....
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....Special Police Establishment v. State of M.P., (2004) 8 SCC 788 : 2005 SCC (Cri) 1] and Nabam Rebia [Nabam Rebia & Bamang Felix v. Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1] clarified that besides the instances where the Governor has been expressly conferred with discretionary powers, there may still be certain exceptional circumstances wherein it would be legitimate for him to act in his own discretion as indicated by us in paras 312 to 314. However, the general rule remains that the Governor acts upon the aid and advice of the State Council of Ministers. 456.16.5. The observations made in B.K. Pavitra [B.K. Pavitra v. Union of India, (2019) 16 SCC 129 : (2022) 2 SCC (L&S) 768] that "a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200" do not take into consideration the decision of Samsher Singh [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] and is for this reason per incuriam. It failed to consider that Article 200 which had been duly considered by Samsher Singh [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] was found to contain on....
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.... required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." 30. 364. Special provisions as to major ports and aerodromes. - (1) Notwithstanding anything in this Constitution, the President may by public notification direct that as from such date as may be specified in the notification- (a) any law made by Parliament or by the Legislature of a State shall not apply to any major port or aerodrome or shall apply thereto subject to such exceptions or modifications as may be specified in the notification, or (b) any existing law shall cease to have effect in any major port or aerodrome except as respects things done or omitted to be done before the said date, or shall in its application to such port or aerodrome have effect subject to such exceptions or modifications as may be specified in the notification. (2) In this article- (a) "major port" means a port declared to be a major port by or under any law made by Parliament or any existing law and includes all areas for the time being included with....
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....2. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.-(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe." 40. This decision was further considered in Union Carbide Corpn. v. Union of India [1991 INSC 250; (1991) 4 SCC 584], a Constitution Bench of this Court dealing with the ambit and scope of the powers of this Court under Article 142, wherein it was clarified that ordinary law did not limit the powers under Article 142(1) regardless of the public policy it was founded on, but that the violation of constitutional provisions and constitutional rights was significant and limited the scope of Article 142. 41. "249. Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid withi....