It is a critical bunch of questions; it takes the Constitution pandits to study various conflicts, controversies, and, most importantly, both the good and bad governance of the state and the Union governments.

It is a question of federal character where the first Article around ‘Name and Territory of the Union ‘ says “(1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule”.

Like the United States of America, it is the Union of States of India, so-called. It means that Governors have huge powers in running the state government led by a Council of Ministers. The list of questions raised by the President is around the powers of Governor and Chief Ministers, especially when a Governor is selected by the Union Council of Ministers in India, led by the Prime Minister, helped by the Home Minister, and appointed by the President, while they belong to the ruling political parties. The President, based on Articles 200 and 201 of our Constitution, asked the Supreme Court to explain the assent process for state legislation by Governors and the President, respectively. These Articles do not prescribe any timeframe for decision-making. She asserted that the Supreme Court’s recent ruling effectively circumscribes the discretionary powers vested in the offices of the President and Governors, thereby raising fundamental constitutional concerns.

The President invoked powers under Article 143(1) to seek the Supreme Court’s advisory opinion, in the background on escalated friction between Raj Bhavans and Chief Ministers across the country, as several Bills are thrown into ‘pendency’ beyond reasonable time, which impacts the governance of States which is administered by a party heading the Centre.

Recently, the Supreme Court in the State of Tamil Nadu vs the Governor of Tamil Nadu in 2025 coined the phrase ‘pocket veto’ over Bills passed by the State Legislature. One can govern with ‘action’ and also do nothing, called ‘inaction’. If most of the ministers frustrate the governance with inaction, it will result in chaos.

Not only Tamil Nadu, but several states ruled by non-BJP governments are suffering from ‘inaction’. The people have a right to govern, either the State or the Centre. The President wants clarification on 14 pointed questions.

Of the, the most critical are five:

1. Is the exercise of discretion under Art. 200 of Constitution, justiciable?

2. Is Art. 361 (immunity given to President and Governors an absolute bar to judicial review under Art 200?;

3. In the absence of any Constitution prescribed time limit or manner of exercise of powers by a Governor?

4. Is the exercise of discretion under Article 201 (if Bills reserved by a Governor for consideration by the President) justiciable?

5. Can judicial orders impose timelines by the President under Article 201?

Before Independence, an advisory opinion on matters referred can be found in Section 213(1) of the Government of India Act, 1935. Following the 1950 Constitution, the Supreme Court had advisory jurisdiction over matters that have been specifically referred to it by the President of India under Article 143 of the Constitution. There is no specific provision for such an advisory jurisdiction in the Constitution of the United States of America or that of Australia.

Other questions need to

be probed:

1. What are options before a Governor when a Bill under Art. 200 for assent?

2. Is the Governor bound by the aid and advice tendered by the Council of Ministers?

3. Is the President required to take advice from the Supreme Court in such a position?

4. Under Articles 200 and 201, is it permissible for the courts to undertake judicial adjudication?

5. Can the powers of the President/Governors be substituted by a judicial under Article 142?0

6. Is a law made by the State Legislature a law in force without the assent of the Governor?

7. Is it not mandatory for a Supreme Court Bench to examine if a case involves substantial questions of law regarding interpretation of the Constitution and refer the case to a Bench of a minimum five judges under Article 145(3)?

8. Is Article 142 limited to matters of procedural law or does it extend to issuing directions “contrary to or inconsistent with existing substantive or procedural provisions of the Constitution”?

9. Is there a bar on the Supreme Court from deciding between the Centre and States other than by way of filing an original suit under Article 131?

Background of the SC

judgment

In a very significant issue, a bench of the Supreme Court last month unanimously held that the Tamil Nadu Governor withholding 10 state legislative bills was “illegal” and “erroneous”. The apex court used its discretionary powers under Article 142 to hold that the bills, which were pending assent and reserved for the President, were deemed to have been assented to.

Whether the question is a timeline that can be fixed, or if so, it also lays down timelines within which the Governor and the President are to communicate their decisions on bills placed before them?

It also expanded the scope of judicial review for a Governor’s actions, enabling state governments to approach courts and seek a writ of mandamus if these timelines were not followed. A writ of mandamus empowers a competent court to direct a government official to discharge an official duty. Justice Pardiwala held that Article 200 limits the Governor to just one of the three options.

A bill reconsidered by the state legislature cannot be reserved for the President. Therefore, if the Governor withholds assent to a bill and the legislature reconsiders and sends it back, the Governor cannot reserve it for the President’s consideration. This is because, by withholding assent, the Governor exhausts one of the options under the provision. He wrote that there is a “strict constitutional prohibition against the Governor to not withhold assent.” The SC discussed a “possible scenario” where the legislature’s reconsidered bill can be reserved for the President. This could happen when the legislature introduces fresh changes to a bill that are not recommended by the Governor after he returns it. Such a bill must be considered on “wholly different and new grounds.” However, the Bench clarified that if the bill is amended solely on the Governor’s recommendations, the Governor cannot reserve it for the President. All is for ‘just’ advisor!!

With this strength of the Supreme Court judgement, several questions were discussed, and questions were raised. To answer this question, we need to frame a constitution bench, which might take a lot of time for arguments and counters. Meanwhile, the Tamil Nadu government and many like it can consider a new Chief Minister. More than that, the Government stops functioning on the Bills and related governance and working of many departments. It is absolutely against the federal character of the states governed by different political parties. Even if the entire time consumed to conclude the judgement, it will have no consequence because the Supreme Court could only give an ‘advisory opinion’, which is not legally binding on the President, and naturally on the Government.

(The writer is Professor of the Constitution of India and founder-Dean, School of Law, Mahindra University, Hyderabad)