Attorney General: President should have been heard in SC ruling on Tamil Nadu Governor

Incidentally, the AG has made submissions on the powers of the Governor in the case.

Asked if this could be a ground for the government to seek a review of the April 8, 2025 judgment by a bench of Justices Justices JB Pardiwala and R Mahadevan, Venkataramani said that is “not yet decided.”

However, former Attorney General KK Venugopal said that the SC was “absolutely right in putting the President and the Governor on the same pedestal” in the case when it involves the legislative process. While Article 200 of the Constitution deals with the Governor’s action, Article 201 deals with Bills “reserved by a Governor for the consideration of the President.” Simply put, Article 201 is a consequence of the Governor’s actions under Article 200.

“In fact, where the Governor has some individual discretion in deciding whether to refer the Bills to the President or not, the President has no such power. She has to go by the aid and advice of the Cabinet,” Venugopal added.

This was echoed by senior advocate Rakesh Dwivedi, who appeared for the Tamil Nadu government in the case. He said that the power of the President, under Article 201, was “very much an issue” in the case.

“This matter was from Tamil Nadu largely about the power of the Governor under Article 200,” said Dwivedi. “The Governor had, when the legislature passed the Bill a second time, reserved the Bill again for the consideration of the President. And, therefore, Article 201 (dealing with the powers of the President) also came into consideration. When the Bills were sent to the President, the President granted approval to three of the Bills but seven Bills were kept pending…even the President did not take a final decision on seven Bills. This exercise, which the President had to do, was under Article 201. So Article 201 was very much an issue.”

Dwivedi acknowledged that the President was not a party but said that the Attorney General had been issued a notice. But he added that in the “ultimate analysis,” it wasn’t necessary to issue notice to the Union “as such.”

“Once the court concluded that reservation for consideration of President by the Governor was itself ultra vires, because on the second round, when he receives the Bill under the first proviso to Article 200, he is bound to grant assent. Then he has no discretion at all…So when he could not have reserved, everything done at the level of the President automatically falls to the ground. In that circumstance, it wasn’t necessary to hear (the President),” Dwivedi added.

This divergence in views frames the challenge thrown up by the Supreme Court verdict that sets timelines—both for the Governor and the President—in making Constitutional decisions on whether to grant assent to a Bill.

“Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court,” the ruling by the bench of Justices JB Pardiwala and R Mahadevan said.

In Paragraph 391, the ruling, referring to two Office Memorandums of the Home Ministry that deal with internal timelines and processes for the President’s nod on Bills, said that “President is required to take a decision on the bills reserved for his consideration by the Governor within a period of three months from the date on which such reference is received.”

A writ of mandamus is a court order commanding a government official, public authority, or lower courts to perform a specific act or duty they are legally obligated to do. A writ of mandamus against the President is unusual since Article 361 of the Constitution bestows legal immunity for the President and Governors.

They “shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties,” the provision states.

The President or the Governor are not even made a party before the courts. Generally, the court issues notices to the Secretary of the Governor or the Union Home Ministry for the President in such disputes.

The consequences of issuing the writ of mandamus against the Head of State could be a constitutionally fraught issue. Even on the issue of judicial appointments, where the SC has flagged timelines, the directions are to the Central government and not the President, under whose seal and signature appointments are made.

Another senior government law officer said that the Court must have refrained from breaching “constitutional comity.”

“One organ of the state is setting timelines for another organ of the state to exercise constitutional powers. This is disturbing,” the officer said.