Kiran Raj

The Supreme Court of India Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan held that the reservation of ten Bills by the Governor of Tamil Nadu for the consideration of the President, after the Bills were duly reconsidered and repassed by the State Legislature in accordance with the first proviso to Article 200, was unconstitutional and liable to be set aside. The Court held the consequent withholding of assent by the President to be equally non-est in law. In exercise of powers under Article 142 of the Constitution, the Court directed that the ten Bills shall be deemed to have received the Governor’s assent on 18 November 2023. The Court further issued directions concerning delays in discharge of constitutional functions by the Governor, including matters relating to grant of sanction for prosecution, premature release of prisoners, and appointments to the Tamil Nadu Public Service Commission. The writ petition and pending applications were disposed of.

The State of Tamil Nadu approached the Supreme Court of India under Article 32 of the Constitution, seeking reliefs against certain actions and inactions of the Governor of Tamil Nadu in the discharge of his constitutional functions. The petition raised issues arising from the Governor’s handling of multiple constitutional responsibilities, including the grant of assent to Bills passed by the State Legislature, sanction for prosecution of public servants under the Prevention of Corruption Act, approval of proposals for premature release of prisoners, appointments to the Tamil Nadu Public Service Commission (TNPSC), and the administration of oath to a Minister.

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The State submitted that between 13 January 2020 and 28 April 2023, the Legislative Assembly of Tamil Nadu passed twelve Bills which were forwarded to the Governor for his assent under Article 200 of the Constitution. The Governor did not take any action on these Bills until 13 November 2023. Following the issuance of notice in the writ petition by the Supreme Court on 10 November 2023, the Governor on 13 November 2023 withheld assent to ten of the twelve Bills and reserved the remaining two for the consideration of the President.

On 18 November 2023, the State Legislative Assembly repassed the ten Bills without any amendments and resubmitted them to the Governor for his assent. However, on 28 November 2023, the Governor reserved all ten repassed Bills for the President's consideration, citing repugnancy with Entry 66 of List I (Union List) under the Seventh Schedule of the Constitution, which relates to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. According to the Governor’s communication, although the Bills were intra vires the State Legislature, they suffered from repugnancy with central legislation and therefore warranted Presidential consideration.

The State filed an interlocutory application seeking amendment of its original prayer, requesting the Court to declare the Governor’s reservation of the ten Bills as unconstitutional, illegal, arbitrary, unreasonable, and violative of Articles 14, 19, and 21 read with Article 200 of the Constitution. The State also prayed for a direction to the Governor to declare assent to the said Bills.

The Court was informed that out of the ten Bills reserved by the Governor, the President had withheld assent to seven, granted assent to one, and was yet to decide on the remaining two as of the date of the hearing.

The status of each Bill was detailed by the Court. The Tamil Nadu Fisheries University (Amendment) Bill, 2020 (Bill No. 2/2020), Tamil Nadu Veterinary and Animal Sciences University (Amendment) Bill, 2020 (Bill No. 12/2020), Universities Laws Amendment Bills, 2022 (including Bill Nos. 24/2022, 29/2022, 39/2022, 40/2022, 48/2022, and 55/2022), and Bills No. 15/2023 and 18/2023 were among those affected.

Apart from the issue of assent, the State also submitted that four files relating to requests for sanction to prosecute public servants under the Prevention of Corruption Act were pending before the Governor between April 2022 and May 2023. The petitioners contended that the Governor failed to take any action on these files until after the writ petition was filed. The Governor granted sanction in some cases post-filing, while others remained under consideration.

Further, the State informed the Court that 53 files pertaining to the premature release of prisoners, submitted to the Governor between June and August 2023, remained pending. The Governor’s office submitted that since September 2021, 580 such proposals were received, out of which 362 had been approved, 165 rejected, and the remaining 53 were under consideration.

The petition also raised the issue of appointments to the Tamil Nadu Public Service Commission. According to the State, the Commission is mandated to have a Chairman and 14 members under Regulation 3 of the TNPSC Regulations, 1954. At the time of filing, only four members were functioning. The State forwarded files proposing new appointments, but the Governor returned them raising queries regarding the selection process, tenure, and credentials of the candidates. The State submitted that it had responded to these queries and resubmitted the files, but the Governor returned them again without assigning reasons.

Another issue pertained to the dismissal and reappointment of a Cabinet Minister. On 29 June 2023, the Governor, acting suo motu, wrote to the Chief Minister recommending the dismissal of Minister Senthil Balaji following his arrest. Later that day, the Governor kept the recommendation in abeyance citing the Union Home Ministry’s suggestion to seek the opinion of the Attorney General. In a separate instance, Minister K. Ponmudy was convicted by the High Court. Upon suspension of his conviction by the Supreme Court, the Chief Minister sought his reappointment. The Governor declined, stating that interim suspension of conviction did not remove the fact of conviction. The State filed another application in the writ petition challenging this decision, and during hearing, the Governor administered oath to the Minister. The Court recorded this in its order and disposed of the related application.

The State contended that the Governor’s actions amounted to a breakdown of constitutional machinery and undermined the principles of federalism and parliamentary democracy. The Governor’s office, represented by the Attorney General, submitted that the Governor acted within constitutional limits. The respondents argued that in cases of repugnancy, the Governor could refer a Bill to the President even after repassage, and that the decision of the President under Article 201 was not subject to judicial review.

Both sides cited numerous precedents including State of Punjab v. Principal Secretary to the Governor of Punjab, Samsher Singh v. State of Punjab, Nabam Rebia & Bamang Felix v. Deputy Speaker, Hoechst Pharmaceuticals Ltd. v. State of Bihar, and Valluri Basavaiah Chowdhary v. Union of India.

The petitioners contended that the first proviso to Article 200 mandated the Governor to act only in accordance with the advice of the Council of Ministers once a Bill was repassed, and that no discretion remained to withhold assent or refer the Bill again to the President. The respondents maintained that the Governor’s authority to act in cases of repugnancy was not exhausted after the initial withholding of assent, and the repassed Bills did not preclude further reference to the President.

The parties also debated whether a time limit should be read into Article 200 for acting upon Bills presented for assent. Petitioners argued for a constitutional duty to act within a reasonable timeframe to avoid "pocket veto", while the respondents relied on earlier judgments to argue against imposing rigid timelines.

Ultimately, the matter involved examination of constitutional provisions, including Articles 14, 19, 21, 32, 142, 163, 200, and 201; various entries of the Union, State, and Concurrent Lists; Constituent Assembly Debates; and reports of the Sarkaria and Punchhi Commissions.

The Supreme Court began its examination by outlining the options available to a Governor under Article 200 when a Bill is presented for assent. The Court explained that these are three in number: to grant assent, to withhold assent, or to reserve the Bill for the consideration of the President. However, it clarified that once the Governor withholds assent, the first proviso to Article 200 becomes operative.

“The phrase ‘shall not withhold assent therefrom’ used in the first proviso to Article 200 is couched in negative language, which denotes a mandate.”

The Court stated that the Governor, upon the Bill being repassed by the Legislature, is constitutionally barred from exercising any of the original options again.

“The three options must be exercised when the Bill is first presented. Once the Legislature repasses the Bill, the discretion available under the substantive part of Article 200 stands exhausted.”

On the question of whether the Governor could refer a repassed Bill to the President, the Court held that such a course of action would contradict the constitutional scheme.

“Permitting the Governor to reserve a repassed Bill for Presidential consideration would render the first proviso otiose and provide a route to circumvent legislative supremacy.”

In assessing the role of discretion under Article 200, the Court reiterated the limited nature of the Governor’s discretion under Article 163, stressing that discretion must be expressly conferred.

“There is no room for the Governor to act on his discretion in a responsible form of government.”

“Article 200 does not confer independent discretion upon the Governor; he must act on the aid and advice of the Council of Ministers.”

The Court then turned to the phrase “as soon as possible” in the first proviso to Article 200, explaining that although the Constitution does not specify a fixed timeframe, this language carries substantive meaning.

“Though no time-limit is prescribed in the Constitution, the phrase ‘as soon as possible’ must be read as having substantive constitutional content.”

The Court found that excessive delay by a Governor, without communication or action, amounts to an unconstitutional “pocket veto.”

“Keeping a Bill pending indefinitely without communication or action constitutes a pocket veto, which is foreign to our constitutional structure.”

The Court concluded that the Governor’s decision to reserve the ten Bills for Presidential consideration, after the Bills had been reconsidered and repassed by the Legislative Assembly, was impermissible under the Constitution.

“The reservation of the ten Bills for the consideration of the President, after they were duly reconsidered and repassed by the State Legislature, is constitutionally impermissible.”

“Such action is non-est in law.”

The Court held that since the reservation itself was unconstitutional, the President’s subsequent decision to withhold assent was equally without legal effect.

“Since the reservation of the Bills by the Governor was unconstitutional, the President’s subsequent action of withholding assent is vitiated.”

“The President’s decision in such cases cannot be delinked from the process by which the matter reached the President.”

On the issue of judicial review, the Court stated that constitutional actions by any authority, including the Governor and President, are subject to scrutiny where constitutional requirements have not been followed.

“No constitutional authority is beyond judicial scrutiny. Where constitutional violations are established, the courts must intervene.”

The Court also assessed the Governor’s conduct in other areas raised in the writ petition. In respect of files relating to prosecution sanctions under the Prevention of Corruption Act, the Court found that decisions were delayed without valid reason.

“The Governor’s delay in granting sanction, despite recommendations of the Council of Ministers, resulted in obstruction of the criminal justice process.”

On the question of premature release of prisoners, the Court recorded that constitutional obligations require timely action by the Governor. “The files pertaining to premature release of prisoners were kept pending without justification, which is contrary to the constitutional duty of timely decision-making.”

In the matter of appointments to the Tamil Nadu Public Service Commission, the Court noted the return of files despite clarifications by the State Government. “Repeated return of proposals for appointment to the TNPSC, even after clarifications, amounts to non-performance of constitutional duty.”

With respect to the swearing-in of a Minister whose conviction had been stayed, the Court emphasized that the Governor is constitutionally bound to act on the Chief Minister’s advice, subject to prescribed qualifications.

“The Governor is bound to act on the advice of the Chief Minister in the matter of appointment of Ministers, subject only to the disqualifications laid down in the Constitution.”

Turning to the overarching principles of constitutional governance, the Court stated the duties imposed by the Governor’s oath of office and the values that must guide his actions.

“He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes.”

“The Governor as the constitutional head of the State is reposed with the responsibility to accord primacy to the will and welfare of the people of the State and earnestly work in harmony with the State machinery.”

The Court held that the will of the State Legislature, as a democratically elected body, must not be obstructed.

“Any action contrary to the express choice of the people, in other words, the State legislature, would be a renege of his constitutional oath.”

The Court reflected on the need for constitutional functionaries to remain faithful to the foundational values of the Constitution.

“Constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggle and sacrifice.”

“If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built.”

The judgment concluded with a reflection on the responsibility of those entrusted with constitutional duties. “It is only when the constitutional functionaries exercise their powers by and under the Constitution that they show deference to the people of India who have given the Constitution to themselves.”

The Supreme Court held that the action of the Governor of Tamil Nadu in reserving ten Bills for the consideration of the President after they had been duly reconsidered and repassed by the State Legislature under the first proviso to Article 200 of the Constitution was contrary to the constitutional procedure. The Court declared that such reservation was erroneous in law, non-est, and accordingly set it aside.

Consequent to this finding, the Court also set aside any steps taken by the President in respect of the said ten Bills, including the withholding of assent. The Court held that the President’s actions, having arisen from an unconstitutional reservation, were equally non-est and void in law.

Taking into consideration the prolonged delay on the part of the Governor in dealing with the Bills, and the nature of the justification offered for reserving them, the Court invoked its inherent powers under Article 142 of the Constitution. It directed that the ten Bills in question shall be deemed to have received the assent of the Governor on 18 November 2023, being the date on which they were presented to him after reconsideration and repassage by the State Legislature.

The Court recorded that the Governor, as a constitutional head of the State, is expected to discharge his duties with fidelity to the Constitution and the rule of law. It stated that the Governor must act in harmony with the elected government, uphold the conventions of parliamentary democracy, and honour the constitutional oath to serve the well-being of the people of the State. The Court stated that any conduct by a Governor that frustrates the will of the people, as expressed through their elected representatives, would amount to a failure to adhere to the constitutional mandate.

In this context, the Court referred to a historical episode involving the first President of India, Dr. Rajendra Prasad, and the first Attorney General for India, M.C. Setalvad, in relation to the Hindu Code Bill. The Court noted that the Attorney General had opined that the President must act in accordance with the advice of the Council of Ministers, and that Dr. Rajendra Prasad, with constitutional propriety, accepted this position. This example was cited to illustrate the early observance of constitutional discipline by constitutional functionaries.

As part of its concluding remarks, the Court quoted Dr. B.R. Ambedkar’s final speech in the Constituent Assembly to underscore the importance of character and commitment in the working of the Constitution: “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”

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The Court expressed confidence that the Governor and the State Government would work in constitutional harmony going forward, keeping the public interest as the foremost priority.

Before disposing of the matter, the Court directed the Registry to send one copy of the judgment to all High Courts and to the Principal Secretaries to the Governors of all States.

The writ petition was accordingly disposed of in the above terms. All pending applications, if any, stood disposed of.

Advocates Representing the Parties

For the Petitioners: Dr. Abhishek Manu Singhvi, Sr. Adv.; Mr. Mukul Rohatgi, Sr. Adv.; Mr. Rakesh Dwivedi, Sr. Adv.; Mr. T. Harish Kumar, AOR; Mr. Sabarish Subramanian, Adv.; Mr. Vishnu Unnikrishnan, Adv.

For the Respondents: Mr. R. Venkataramani, SG; Mr. Arvind Kumar Sharma, AOR; Mr. Manoj Ranjan Sinha, Adv.; Mr. Vishal A., Adv.; Mr. Mrigank Prabhakar, Adv.; Mr. Siddharth Sahu, Adv.

Case Title: The State of Tamil Nadu v. The Governor of Tamil Nadu & Anr.

Neutral Citation: 2025 INSC 481

Case Number: Writ Petition (Civil) No. 1239 of 2023

Bench: Justice J.B. Pardiwala, Justice R. Mahadevan

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