Supreme Court’s Advisory Opinion on Governor’s Powers

Advisory Opinion Latest News

• The Supreme Court has issued a significant advisory opinion under Article 143 of the Constitution, responding to a Presidential reference triggered by a two-judge Bench judgment from April 2025 related to delays in assent to State Bills. 

Background to the Presidential Reference

• The Presidential reference arose due to the Supreme Court’s April 2025 judgment in State of Tamil Nadu vs. Governor of Tamil Nadu, which:
  • Mandated a three-month timeline for Governors and the President to act on Bills,
  • Declared such decisions judicially reviewable,
  • Exercised Article 142 powers to grant “deemed assent” to several pending Tamil Nadu Bills.
• This ruling generated constitutional uncertainty, prompting the Union government to seek clarification on:
  • Whether courts can prescribe timelines,
  • Whether presidential inaction is justiciable,
  • Whether the Supreme Court’s Article 142 powers can override constitutional provisions. 

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Scope of Questions Raised in the Reference

• The reference placed 14 constitutional questions before a Constitution Bench, primarily relating to:
  • Interpretation of Article 200 and Article 201 regarding assent to State Bills,
  • Whether courts can intervene before a Bill becomes law,
  • The justiciability of delays,
  • The permissible boundaries of Article 142. 
• These questions went to the heart of India’s federal structure and the functional relationship among State legislatures, Governors, and the Union.

Key Takeaways from the Supreme Court’s Advisory Opinion

• The five-judge Bench delivered a comprehensive opinion, which reshapes constitutional understanding on several fronts.
• Governor’s Options Under Article 200
  • The Court clarified that a Governor has three constitutionally recognised choices when presented with a Bill:
    • Assent,
    • Reserve the Bill for Presidential consideration,
    • Withhold assent and return the Bill to the legislature with observations.
      These options are explicitly grounded in the constitutional text. 
• Discretion of the Governor
  • The Court held that the Governor enjoys discretion in choosing among these options and is not bound by the aid and advice of the Council of Ministers regarding assent-related decisions. 
  • This interpretation marks a significant shift from earlier decisions such as Shamsher Singh (1974) and Nabam Rebia (2016), which emphasised the primacy of ministerial advice. 
• Limited Justiciability
  • Governor’s actions under Article 200 are generally not justiciable,
  • However, in cases of “glaring prolonged and unexplained inaction”, courts may issue a limited mandamus directing the Governor to act,
  • Courts cannot review the validity of the Governor/President’s decision before a Bill becomes law. 
• No Judicial Timelines
  • A key reversal of the April 2025 judgment: the Court held that in the absence of constitutional timelines, the judiciary cannot prescribe time limits for Governors or the President to act on Bills. 
• No ‘Deemed Assent’
  • The Court strongly rejected the concept of “deemed assent,” holding that the judiciary cannot substitute executive authority through Article 142. Assent-related decisions belong exclusively to the Governor or President. 

Issues Arising from the Opinion

• Potential Undermining of Legislative Intent
  • The Court’s recognition of wide gubernatorial discretion contradicts earlier judicial positions and expert committee recommendations.
  • The Sarkaria Commission (1987) held that reserving Bills for the President should occur rarely, and only in cases of clear unconstitutionality.
  • Earlier Supreme Court cases insisted that Governors act on ministerial advice, not independent discretion.
  • The current opinion risks allowing Governors to delay or derail the legislative agenda of elected State governments. 
• Concerns Over Lack of Timelines
  • The Punchhi Commission (2010) recommended a six-month limit for gubernatorial decisions.
  • The Supreme Court itself had earlier set non-textual timelines (e.g., in K.M. Singh, three months for Speakers to decide disqualification petitions).
  • Thus, critics argue that judicially crafted timelines can be constitutionally permissible when required to uphold democratic functioning. 
  • The current advisory opinion rejects such purposive interpretation. 

Way Forward

• While the Governor represents the Union and the ideal of national unity, federalism is a basic structure of the Constitution. Moving forward:
  • Governors must exercise constitutional powers with responsible urgency,
  • The Centre must ensure the office is not used to thwart State governments,
  • Judicial oversight must remain available to prevent constitutional paralysis while respecting the separation of powers. 

Source: TH