“But the Queen has no such veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power (The English Constitution, Walter Bagehot, 1865).
The Supreme Court of India has given its opinion on 11 out of the 14 questions on which the President of India had sought its advice under Article 143 of the Constitution. The issue behind these questions is the role to be played by the Governor of a State while deciding on the Bills passed by the legislative Assemblies as in the provisions of Article 200 of the Constitution.
The mode of appointment and exercise of discretionary powers by the Governor have engaged the attention of the political executive, at the Union and State levels, and constitutional experts. After seven-and-a-half decades, it is time to analyse how the discharge of gubernatorial responsibilities has given rise to conflicts and litigation.
The focus points
The two major constitutional questions which came up before the Court in the Tamil Nadu case and the subsequent Presidential reference were, first, the existence of discretionary power for the Governor while assenting to, withholding assent from and in reserving a Bill for the consideration of the President, and, second, the time limit within which a Governor or the President has to act on a Bill passed by the legislature.
In the Court’s opinion, the Governor has discretion in the three courses of action available when a Bill is presented and no time-line can be prescribed. However, the Court has a limited power of judicial review in glaring cases of inaction when the delay is prolonged, unexplained and indefinite.
Here, it is pertinent to note that when a Bill which has been withheld and sent to legislature, the Governor has to give assent as soon as possible, after it is resubmitted.
In the Government of India Act, 1935, both the Governor-General and the Governor had discretion (Sections 32 and 75, respectively) in assenting, withholding and returning Bills. In the draft Article 175, discretion was conferred on the Governor for returning a Bill with a message to a unicameral legislature. The words ‘discretion’ and the ‘single house’ in the draft Article were removed after debates in the Constituent Assembly.
Editorial | Supreme Court should have upheld timelines for Governors and President
The Court was of the opinion that prior to the insertion of the Tenth Schedule in 1985 in the Constitution, it was a realistic possibility that Bills could be passed without the support of the Council of Ministers. The Court implies, that after the anti-defection law, members of the party cannot act against the party whip.
Hence, the Court has taken the view that a scenario where the Council of Ministers would tender aid and advice to the effect that the Governor must return a Bill for reconsideration or reserve it for the consideration of the President is not conceivable.
This view, however, does not take into consideration a situation when a coalition government of two parties, A and B, get a Bill passed in the Assembly.
When the Bill goes for assent, there is a political change and party B forms a coalition government with party C. As a part of the new political adjustment, party B agrees not to press the Bill. The new Ministry will naturally advise the Governor to send back the Bill to the legislature. Similar scenarios have been mentioned by the constitutional advisor, B.N. Rau in his note to the Constituent Assembly. These make it abundantly clear that there is no need to assume that there is implied discretion in Article 200.
On aid and advice
Another situation mentioned in the opinion of the Court for assuming that there is implied discretion for the Governor in Article 200 for protecting and defending the Constitution is that “if there is no discretion, then even if advice is tendered contrary to the written text of the Constitution, the Governor will be bound by such advice”.
Three questions arise here. First, given that the members of the Council of Ministers take oath to owe allegiance to the Constitution, why will they tender such an advice? Second, if such an unconstitutional advice is tendered to the Governor, is she/he impeded from sending a report to the Union under Article 356, for which there is no need for the aid and advice of the Council of Ministers? Third, does the President have any discretionary power, if such advice is tendered by the Union cabinet?
The Sarkaria Commission report stated that the discretion is available only under the second proviso to Article 200 and that it is quite narrow. The present advisory, on the other hand, has widened the scope of gubernatorial discretion and made it non-justiciable. If the power of assent, withholding and sending messages (the advisory states that there cannot be withholding simpliciter) fall in the realm of discretion and are not subject to judicial review, the consequence will be a form of gubernatorial governance in the States.
The Court has adumbrated that the Governor is not an employee of the Union (Hargovind Pant vs Raghukul Tilak Dr. And Others (1979 AIR 1109). However, none of the modes of appointment of the Governors, recommended by the Sarkaria, Venkatachaliah and Punchhi Commissions have been seriously considered.
Sorabjee’s observation
Soli Sorabjee, in 1985, made a sharply critical observation that an unhealthy practice has grown from offering the post of Governor as a consolation prize for ‘burnt-out’ politicians or as a stepping stone for those still burning with political ambition. Given this backdrop, there is a likelihood of friction when the Union and the States are ruled by different political parties. It is to be noted that those who are now critical of the role of the Governors, had earlier ignored the well-meaning recommendations on the mode of appointment of Governors by three commissions on Centre-State relations.
Having judicially determined time lines for deciding on Bills passed by the legislature arose when States approached the Court citing long delays at the level of Governors. Citing instances of delay in the cases reserved for consideration of the President, former Chief Minister of Karnataka Ramakrishna Hegde has said: “The President had yet to give assent to as many as 74 Bills referred to him by different State Governors. Of these, two had been pending for seven years, three for six years, two for five years, seven for three years and 58 for the past one year… after making the Karnataka government wait for six years, the Home Ministry wrote to the State Government that its Educational Bill, 1983, was ‘under examination’” (Mainstream, June 8, 1991).
The three commissions had also recommended timelines. In a polity, where smooth working relations are to be ensured between the Union and the States, why not think of a consensus and amend Article 200 introducing time lines? The ruling party of yesteryears is in the opposition today and it can be vice-versa.
The advisory opinion of the learned judges has upturned the position in the judgment of the Tamil Nadu case. Even though the judgment does not merge in the opinion, the latter has substantial persuasive value. Will the future be happier if the non-justiciable discretion without specific time lines is available for exercise of gubernatorial functions under Article 200?
R. Mohan is a former officer of the Indian Revenue Service
Published – November 25, 2025 12:16 am IST
