In its unanimous decision in the presidential reference seeking its opinion on the governor’s role under the Constitution, the Supreme Court has displayed immense clarity on the governor’s role in India’s constitutional structure. The central question before the Court was whether the judiciary can prescribe fixed time-lines for governors and the president to act on bills. This query has ramifications that travel to the heart of the Constitution.
The Court’s judgment is resounding and measured. It has held that the judiciary cannot impose time-lines on the governor, stated that “deemed assent” is not permitted under our constitutional scheme and that judicial intervention is limited only to rare cases of prolonged, unexplained gubernatorial inaction. The verdict’s central message is unambiguous and it restricts courts from crossing into the realm of judicial governance. The decision travels beyond being merely a judicial opinion but depicts a constitutional reaffirmation.
I had earlier argued that imposing rigid time-lines on constitutional functionaries like the president or governor would blur the lines between judicial interpretation and judicial legislation. By refusing to prescribe decision time-lines for the governor, the Court has affirmed this. Accordingly, the Court has effectively overturned its previous decision which had set time-lines for governors’ assent and stated that the president must decide on bills within three months from the date they are referred. Its decision indicates that provisions which remain silent owing to deliberate constitutional design must not, and cannot be filled through court-imposed time-lines or procedures. However, even while stating that no time-lines can be prescribed, the Court has also held governors to an appropriate standard, discouraging them from indefinitely delaying their assent. This outlook honours constitutionally imposed boundaries and preserves stability.
The Court has restated that under Articles 200 and 201, the governor possesses three distinct options when presented with a bill. The governor must either grant assent to the bill, return it for reconsideration, or reserve it for presidential consideration. These three choices are fundamental to the discretionary judgment that has been vested in the governor by the Constitution. In a similar manner, the Court has held that the president exercises independent authority under Articles 111 and 201.
Notably, these powers flow not from judicial interpretation, but from the Constitution itself, fortifying the important role they play in the legislative process. What has also been clarified is that the president is not obligated to seek advisory opinions under Article 143 every time a governor reserves a bill. This determination prevents unnecessary constitutional bottlenecks and maintains appropriate autonomy for constitutional institutions. It ensures that no mandatory detour system through the Supreme Court is created, converting a strictly executive decision-making process into a confusing executive-judicial process. This would have radically altered the nature of both pillars and changed the essence of the Indian polity.
Crucially, the judgment has affirmed that the governor’s discretionary powers cannot be supplanted by the judiciary through judicial review of the governor’s decisions under Article 142. The Court has accordingly held that the concept of “deemed assent”, which would permit courts to declare that a bill has been automatically assented to after the lapse of a prescribed period, is absent in our Constitution and cannot be envisioned by the judiciary. While the merits of decisions taken by the governor or president remain beyond judicial scrutiny, and are thus “non-justiciable”, courts retain their narrow procedural role when faced with prolonged, unexplained and indefinite delays that topple constitutional functioning.
Most significantly, the judgment reinforces fundamental principles of constitutional governance. Including, for instance, holding that courts cannot examine the substantive merits of assent decisions by executive authorities, cannot mandate outcomes, and cannot remedy constitutional silences through judicial interpretation.
This judgment is also significant when viewed from the lens of federalism. It has recognised the crucial role that the governor and president play in Centre-state dynamics. It has thus protected institutional autonomy, retaining the delicate stability between the roles of the judiciary and the executive. In doing so, it has preserved constitutional equilibrium, essential for the smooth functioning of our democracy.
The writer is Managing Partner, Parinam Law Associates and former member, Law Commission of India
