The Supreme Court’s decision to reserve its opinion on the Presidential reference under Article 143 of the Constitution marks a defining moment in India’s constitutional journey. At stake is not merely the question of whether Governors and the President can be subjected to judicially imposed timelines in assenting to Bills, but the larger issue of how India’s democracy negotiates the silence of its founding document. For decades, Parliament has treated the powers of the Governor and the President as sacrosanct, resting on the assumption that the dignity of high constitutional office would ensure fairness and restraint. That very reverence, however, has created today’s vacuum, a silence now filled with political misuse, legislative deadlock, and judicial intervention.
A Constitution Bench headed by Chief Justice of India B.R. Gavai, after hearing detailed submissions for ten days from Attorney General R. Venkataramani, Solicitor General Tushar Mehta, and senior counsels representing Opposition-ruled states including Tamil Nadu, West Bengal, Kerala, Karnataka, Telangana, Punjab, and Himachal Pradesh, reserved its order.
The reference, titled “In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India”, was placed before the apex court by President Droupadi Murmu in May this year, in the aftermath of the Court’s April 2025 ruling in the Tamil Nadu Bills case. In that judgment, a two-judge Bench led by Justices J.B. Pardiwala and R. Mahadevan held that Governor R.N. Ravi’s prolonged inaction and refusal to assent to ten re-passed Bills was “illegal and arbitrary.” Exercising powers under Article 142, the Court deemed the Bills to have received assent and also prescribed a three-month timeline for gubernatorial and presidential action.
The President’s reference now asks whether such timelines (and even the concept of “deemed assent”) can be constitutionally read into Articles 200/201 where none were spelled out, or whether doing so violates the constitutional design (including the immunity of Governors/Presidents under Article 361 and separation of powers). In this analysis we examine the relevant constitutional provisions, the TN Governor case, the questions posed, the arguments of the Union and state governments, and the likely implications for federalism and judicial review.
Constitutional Provisions
Article 143(1) empowers the President to refer questions of law or fact of public importance to the Supreme Court for its opinion. In this advisory jurisdiction the Court does not decide a dispute between parties but gives guidance, though its opinion is highly persuasive. Under Article 200, once a bill has been passed by a State legislature it is presented to the Governor, who “shall declare either that he assents, withholds assent or reserves the Bill for the President’s consideration”. The proviso to Article 200 allows the Governor to “return the Bill, if it is not a money Bill, as soon as possible,” requesting reconsideration and amendments by the legislature; if the House passes it again, the Governor must then either assent or withhold assent (explicitly prohibiting the Governor from reserving it on a second presentation). Critically, Article 200 contains no express time-limit for the Governor to decide. Similarly, Article 201 provides that if a bill is reserved by the Governor for the President, the President “shall declare either that he assents or withholds assent”. A provision to Article 201 permits the President (if the bill is not a money bill) to return it to the State Assembly with a message, requiring reconsideration within six months; if passed again, it goes back to the President for final consideration. Again, no deadline is specified for the President’s decision.
Meanwhile, Article 361 grants the President and Governors sweeping immunity: “the President, or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office”. On its face, Article 361(1) bars courts from questioning gubernatorial or presidential acts done in official capacity. (Sections 2–4 of Article 361 further bar criminal processes during the term and civil suits without two-month notice.) Finally, Article 142 gives the Supreme Court power to pass “such decree or order as may be necessary for doing complete justice” in any cause or matter before it. This plenary remedy was invoked in the TN Bills case to “deem” assent to the delayed bills. (We note also Article 145(3), requiring a five-judge bench for “substantial questions of law as to the interpretation of this Constitution,” which the President’s reference itself challenges.)
State of Tamil Nadu v. Governor of Tamil Nadu (April 2025)
In State of Tamil Nadu v. Governor (2025), the DMK government petitioned the Supreme Court when Governor Ravi neither granted nor formally returned ten bills passed by the Assembly (and re-passed them after reconvening); instead he unilaterally sent them to the President without explanation. The two-judge bench unanimously held this course unlawful. The Court emphasized that Article 200 gives the Governor exactly three options: assent, withhold or reserve and reject any “absolute” or “pocket” veto. Once a bill has been returned and re-passed by the legislature, the Governor’s duty becomes singular: he “shall declare either that he assents to the Bill or that he withholds assent”, and in this case the Court insisted that he must assent. In the words of the Court, the phrase “shall not withhold assent” (Article 200, second paragraph) “mandates that the Governor must assent” to a re-passed bill. In short, a Governor cannot repeatedly delay or reserve a bill that the democratically elected Assembly has revived doing so violates the “very principles of parliamentary democracy”.
To prevent abuse, the Court imposed practical timelines within Article 200. It directed that, generally, a Governor acting on the advice of his Council of Ministers must either assent or reserve a bill within one month of presentation; if he withholds assent contrary to ministerial advice, he must return the bill with a message within three months; and if a bill is reserved against advice, the Governor similarly must act within three months. Crucially, after an Assembly has re-passed a bill, the Governor must give final assent within one month. In all cases failure to meet these deadlines would render the inaction subject to judicial review (courts could demand explanation and, in extreme cases, step in). For bills reserved to the President, the Court set a three-month deadline for him to decide. The Court stressed that these schedules are not explicit constitutional “embedded” time-limits, but rather judicial standards or “lodestars” for review: they do not amend Article 200 itself, but simply mark the boundary of reasonable delay under the Constitution.
Using its Article 142 power, the Court then deemed assent to the ten pending bills as of the date they were first presented after reconsideration. In effect, it declared the Governor’s withholding and reservation of those bills void, “default-canceling” them by law. The Court also held that once a bill is returned and re-passed, the Governor “cannot reserve” it for the President in the second round. These sweeping measures including the deadlines and the deemed-assent directive generated intense debate. Supporters hailed them as upholding legislative primacy and preventing executive obstruction; critics accused the Court of overreach. Union ministers warned that imposing timelines on Governors risked “constitutional chaos,” that the judiciary was encroaching on the executive’s domain, and that Article 142 was being used to read in provisions (like deemed assent) nowhere in the Constitution. Notably, the judgment leaned on past precedent that even though Article 361 shields Governors, it does not bar all judicial inquiry. Citing Rameshwar Prasad v. Union of India (2006), the Court explained that Article 361’s personal immunity “does not bar the challenge that may be made to their actions”, even if mala fides are alleged. In short, the TN bench treated the Governor as ultimately subject to judicial review of his legal obligations under Article 200.
The Article 143 Reference: Scope and Questions
In the wake of the TN case, President Murmu invoked Article 143(1) on May 13, 2025, referring fourteen questions to the Court regarding Article 200 and 201 powers. Broadly, these questions ask whether the timelines and other judicial directions given by the two-judge bench are constitutionally permissible. Key issues include:
Aid and Advice: “Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available under Article 200?”. (In other words, must the Governor follow Ministerial advice on withholding or reserving bills, or may he ever act independently?)
Justiciability and Article 361: “Is the exercise of constitutional discretion by the Governor on Bills justiciable, when Article 361 puts an absolute bar to judicial review of gubernatorial actions?”*. Similarly, it asks if the President’s exercise of discretion under Article 201 is justiciable when Article 361 grants him immunity.
Imposing Timelines: “In the absence of a constitutionally-prescribed timeline for exercise of powers by the Governor/President, can timelines and procedures be imposed through judicial orders?”. (Essentially, does “silence” in the text mean the courts can’t prescribe a cutoff?)
Scope of Review: “Can courts review the contents of a Bill or issue writs to force a Governor/President to act (for example, mandamus to take up a bill)?”.
Article 142 and Deemed Assent: The reference also implicitly raises whether invoking Article 142 to deem assent is lawful, and whether that amounts to legislating from the bench.
Art. 145(3) Bench-Size: The President’s queries even suggest that the Court should have referred substantial constitutional issues in the April case to a larger bench, implying that the two-judge verdict may have violated Article 145(3) requirements.
The Supreme Court has repeatedly clarified it is not sitting in appeal over the TN judgment, but is asked only to give its advisory opinion on these constitutional questions. In July 2025 the Court set a hearing schedule and requested written submissions from the Union and all state governments; it also asked whether fixed timelines could indeed be justified based on isolated delays.
Arguments of the Union Government
The Union of India, led by Attorney General R. Venkataramani and Solicitor General Tushar Mehta, vigorously opposed judicial imposition of timelines or deemed assent. In written and oral submissions, the Government argued the Governor’s and President’s powers under Articles 200/201 are deliberately written without time-limits, reflecting a conscious decision by the framers to allow flexibility. Mehta pointed out that a draft of Article 201 originally included a 6-week deadline, but this was removed on Dr. Ambedkar’s proposal, replaced by the open-ended phrase “as soon as possible”. Echoing this, the Government submitted that “the absence of any express time limit in Articles 200 and 201 is a deliberate and conscious constitutional choice,” which cannot be judicially nullified. Imposing deadlines by judicial fiat, the Centre warned, would amount to amending the Constitution by interpretation, upsetting its structure.
On separation of powers, AG Venkataramani stressed that mandatory deadlines or writs (e.g. mandamus) would let the judiciary usurp executive functions. He argued that the Governor under Article 200 is not a mere postman; the office “has its own sanctity” and an independent role as a constitutional check on hasty legislation. SG Mehta likewise warned that issuing a writ to a Governor on a discretionary matter would violate the basic structure’s separation-of-powers: one organ cannot arrogate the functions of another. The SG gave hypotheticals (e.g. if a State passed a bill declaring secession from India, the Governor’s only option would be to withhold assent) to illustrate that there are extreme cases where unfettered gubernatorial discretion is necessary. Mehta also said that political solutions normally exist. Chief Ministers can appeal to the Prime Minister, the President or the Governor’s council to resolve deadlocks, and thus courts need not intervene.
The Union further invoked Article 361: it argued that Governors and the President enjoy immunity “from answerability,” and allowing review of their assent decisions would render Article 361 meaningless. On deemed assent, the Government insisted that Article 142 authorizes only “complete justice,” not judicially legislating new concepts. Quoting Rameshwar Prasad and the April judgment itself, it submitted that “the alleged failure, inaction or error of one organ does not and cannot authorise another organ to assume powers” outside the Constitution. “Article 142 does not empower the Court to create a concept of ‘deemed assent,’ turning the constitutional and legislative process on its head,” the Centre wrote. The Government warned such innovation would break the constitutional balance and make the judiciary supreme, contrary to basic structure. In sum, the Union urged that judicial timelines and deemed assent would trample the framers’ intent and upset the federal design.
Arguments of State Governments
A number of state governments, particularly those not ruled by the Union’s political allies, took a different view. States such as Tamil Nadu, West Bengal, Kerala, Karnataka, Punjab and others intervened through senior counsel (including Kapil Sibal, K.K. Venugopal, Gopal Subramanium, A.M. Singhvi, and Arvind Datar) largely in support of judicial timelines and review. They objected to the very maintainability of the Reference, some argued that the TN judgment had already resolved these issues and that reopening them would undermine the finality of Supreme Court decisions (Art. 141). But on the merits they defended the April decision as necessary to prevent gubernatorial overreach. Counsel for these states emphasized that the Governor’s power to withhold or reserve a bill is meant to be exercised “with all possible speed” under Article 200, and that allowing indefinite delays effectively nullifies the legislature’s will. They noted that constitutional Commissions (Sarkaria, Punchhi) had recommended prompt action by Governors and even suggested (as salutary conventions) the timelines the Court ultimately imposed. In their view, refusing to impose any standard leaves a dangerous vacuum: an obstructive Governor could hold legislation hostage forever. The states pointed out that judicial review is well-established for executive discretion affecting public interests, and Article 361 immunity does not absolutely bar review of unconstitutional or mala fide actions (as Rameshwar Prasad and the TN Court itself held). In short, the states argued that the Court has a duty to enforce constitutional principles (sovereignty of legislatures, federalism and democracy), even if Article 200/201 say “as soon as possible” and nothing more. Without timelines, they warned, the elected legislature would be at the mercy of unelected Governors, a result uncontemplated by the Constitution’s basic features.
The debate pits two valid concerns against each other. On one side, proponents of timelines stress legislative efficacy and democratic accountability. They note that by design the States’ legislatures are sovereign in their fields; unchecked executive delay frustrates that sovereignty. A rigid backlog of bills stymies governance and undermines federalism. The timelines set by the Court (in line with expert commission advice) can be seen as modest safeguards, not altering Article 200’s substance. Indeed, in practice vast majorities of bills have been decided by Governors quickly: data cited by the SG showed 90% of over 17,000 state bills since 1970 received assent within a month. The few instances of indefinite withholding (like the Tamil Nadu case) are clearly anomalies. The courts have historically stepped in to protect constitutional processes when no other remedy suffices. For example, in Rameshwar Prasad itself the Court insisted that even high offices cannot shelter illegal acts from review. Likewise, interstate disputes under Article 131 or Article 254 allow judicial intervention despite no timelines. From this perspective, imposing deadlines is a modest imposition to ensure the “spirit of the Constitution” is upheld, not a usurpation of legislative power.
On the other side, critics fear judicial overreach and institutional imbalance. The framers deliberately omitted time-limits, likely trusting Governors to act “as soon as possible” in good faith, and expecting political checks (through advice of Council, elections, or consultative discussions) to resolve disputes. Reading in deadlines might well serve equity in extreme cases, but could also produce rigid outcomes in unforeseen situations. For instance, if the Court mandates a fixed 30-day rule, what if a Governor genuinely needs more time to verify a complex bill, or if natural disasters or emergencies intervene? The Court itself acknowledged that its deadlines still allow explanation for genuine delay; but skeptics worry this invites endless litigation and micro-management. There is also the concern of constitutional symmetry: the Supreme Court resisted hard deadlines for its own functioning (overturning an earlier “six-month stay” rule as legislative in nature). Why should the judiciary impose hard timeframes on co-equal branches? The Union’s counsel aptly warned that “the alleged failure, inaction or error of one organ does not and cannot authorise another to assume powers” it does not possess. Essentially, if the Governor breaks the rules, the remedy should lie in political or electoral consequences, not unilateral judicial diktat.
Constitutionally, Article 361 is a flashpoint. The Governor is clearly meant to be a buffer between State and Centre, and Article 361(1) on its face shields him completely. Tamil Nadu’s case interpreted 361 narrowly, but the Reference will finally decide whether any power of review is allowed. If the Court upholds TN’s approach (that Article 361 permits review of illegality), it will affirm that no one is above the Constitution. If it holds that Article 361 absolutely bars review, then the April verdict’s timelines may be struck down as inconsistent with the immunity clause (or at least limited in scope). Similarly, the issue of aid-and-advice must be resolved: if Governors are bound by advice in all options, withholding assent would be anomalous (as the Court hinted in TN). But if not, the delicate question is how far a Governor’s independent veto power can go.
Finally, there is the formal nature of Article 143: the Court’s answer is advisory and not binding on the President or Parliament. Nevertheless, the Court’s reasoning will set the tone. A narrowing of executive discretion and expansion of judicial oversight would mark a shift toward judicial activism in federal governance, while a refusal to enforce deadlines would affirm a strict separation. The Court’s ultimate ruling (expected by late 2025) will have far-reaching implications. It may clarify that the federal balance requires active judicial guardianship of democracy, or it may reassert that constitutional silence is not a gap for the courts to fill.
Although the Supreme Court has now reserved its opinion, one must remember that it was not the judiciary but Parliament itself that left this constitutional silence untouched. The powers of the Governor and the President were historically regarded as sacrosanct, beyond routine regulation, and therefore never time-bound. This deference to high constitutional authority has created today’s uncertainty. The Court may interpret, but the final responsibility lies with Parliament to clarify the limits of gubernatorial and presidential discretion.
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