The Supreme Court’s decision in the President’s Special Reference No 1, 2025, concerning the scope of gubernatorial powers under Article 200, is an obligingly ambiguous piece of judgment. It creates the real possibility of subverting representative government through seemingly technical reasoning. In the guise of clarification, the five-judge bench has effectively displaced its earlier judgment in State of Tamil Nadu v Governor of Tamil Nadu, which had articulated a workable constitutional structure by imposing indicative time-lines for the governor to act on bills. Since a bill acquires legal force only upon assent, the governor’s refusal to act, neither assenting or withholding assent, nor referring the bill to the president — amounts, in practice, to a constitutional veto without accountability.
Stripped of technical detail, the stakes are constitutional, not procedural or formal. The Court thankfully affirms that a governor cannot withhold assent simpliciter. A bill must be returned with reasons. It then advances a “dialogic” theory of Article 200, treating the governor and the legislature as jointly participating in producing law. No law without the governor’s assent. Simultaneously, the Court insists that the governor retains discretion in granting or withholding assent. Without such discretion, it reasons, the governor’s role would become redundant. The governor’s office serves as a constitutional check, nudging legislation towards constitutionalism, ensuring consistency with the broader legal framework, or responding to exceptional circumstances by requesting reconsideration.
The central difficulty lies in how “discretion” is conceptualised. Discretionary authority cannot be exhaustively codified; it presupposes judgment. But the question the Court does not answer is: Judgment in service of what constitutional objective? The present crisis arises because governors, acting less as impartial constitutional guardians and more as political agents of the Union, have deployed their powers by strategically withholding action for prolonged periods, thereby frustrating the representative process through inaction. This is not constitutional dialogue.
The Tamil Nadu judgment attempted to address this pathology. The advisory opinion now holds that such time-lines are incompatible with the “elasticity” inherent in discretionary functioning, and inconsistent with the separation of powers. At an abstract level, this may sound defensible. But the reasoning is troubling precisely because it avoids the normative core of the constitutional problem. Elasticity is not a constitutional end in itself; it is a means. And whatever elasticity means, it cannot encompass indefinite inaction that nullifies the democratic mandate. The earlier judgment recognised this: The elasticity of discretion must be disciplined by constitutional purpose, not kept hostage to arbitrary silences.
Crucially, the Court does not explain why a presumptive six-month period would impair the substance of a governor’s discretion. Nor does it reconcile its concern for separation of powers with its own jurisprudence in areas such as speakers’ powers, where it has not hesitated to impose time-lines or procedural constraints. Separation of powers cannot be treated as a formal doctrine; it must be integrated with the overarching commitment to democratic self-government and the principle that constitutional powers are held in trust for representative institutions. The dialogue between functionaries is a dialogue to that end.
But this advisory opinion licenses a strange dialogue where the governor can effectively say, “I, as a functionary, have discretion and am in dialogue with you. I will just not tell you when I will speak. My silence may be indefinite.” Such silence is not dialogue; it is the assertion of unaccountable power. It subverts every principle of democracy and federalism. The Court must also be naive not to notice how the power of delay has actually been used.
But now comes the supreme irony. This is, after all, the Supreme Court of India. One thing is certain: Almost every major judgment tends, in one way or another, to expand the Court’s own discretionary authority. Having extolled judicial restraint, emphasised the sanctity of discretion vested in constitutional functionaries, and defended the virtue of “elasticity,” the Court abruptly backtracks. It concludes by holding that, in certain circumstances, it may take cognisance of gubernatorial inaction and issue “limited directions” to remedy it. The governor may have immunity as a high constitutional functionary, but the effects of their inaction, the Court suggests, may still be subject to
judicial review.
This is problematic for several reasons. First, it offers a hopelessly indeterminate remedy. The judgment provides no indication whatsoever of the circumstances in which the Court will intervene. By contrast, the Tamil Nadu decision had at least the virtue of articulating a presumptive threshold: Six months. But when does delay become a subversion of democracy? After six months? One year? Three?
Second, this approach perversely invites more litigation and strategic political behaviour, and therefore more judicial power. The original judgment did create a judicial rule. But it was a democracy preserving rule that actually did not infringe on the governor’s substantive discretion, and gave legal predictability. When should a state government approach the Court? Under what principle could it claim that inaction has crossed the constitutional line? The advisory opinion replaces this with a vacuum. Worse, it offers a governor a sly route to abdication: Simply sit tight until someone else invokes judicial process.
Requiring state governments to litigate to vindicate legislative supremacy is, in itself, an egregious distortion of the separation of powers. Courts, already prone to drifting into the executive’s orbit, will now find themselves asked to adjudicate governor-legislature impasses with no guiding principle. And when the Court is finally approached for “limited directions,” what standard will it apply? In the absence of clear criteria, its decisions will inevitably appear discretionary and politicised. Precisely what the Constitution sought to avoid.
But perhaps that is the deeper logic at work. Our new doctrine of constitutional law is simply — law as infinite elasticity with the central government pulling all the strings.
The writer is contributing editor, The Indian Express
