Kiran Raj

The Supreme Court on Monday, July 29, scheduled August 19 as the date for the commencement of hearings in the Presidential Reference concerning the constitutional powers of the Governor and the President under Articles 200 and 201 of the Constitution of India. The Reference, made by President Droupadi Murmu under Article 143, seeks the Court’s opinion on 14 legal questions relating to the assent, withholding, or reservation of Bills by the Governor and the President.

A Constitution Bench headed by Chief Justice of India B.R. Gavai and comprising Justice Surya Kant, Justice Vikram Nath, Justice P.S. Narasimha, and Justice A.S. Chandurkar will hear the matter. The Court has allotted one hour initially to the States of Kerala and Tamil Nadu to raise preliminary objections to the maintainability of the Reference before beginning the substantive hearings.

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The Union Government, represented by the Attorney General, will be heard in support of the Reference on August 19, 20, 21, and 26. The parties opposing the maintainability and validity of the Reference, including the States of Kerala and Tamil Nadu, will be heard on August 28, and September 2, 3, and 9. Any rejoinder submissions, if necessary, will be heard on September 10.

The Bench has directed all parties to file their written submissions by August 12. Advocate Aman Mehta has been appointed as the nodal counsel for the Union, while Advocate Misha Rohatgi will serve as the nodal counsel for the parties opposing the Reference. They are tasked with preparing the compilation of documents and written arguments on behalf of their respective sides.

States Challenge Validity of Reference

Senior Advocate K.K. Venugopal, appearing for the State of Kerala, informed the Court that an application has been filed challenging the maintainability of the Reference. The application states that 11 out of the 14 questions raised in the Reference have already been addressed by the Supreme Court in the Tamil Nadu Governor matter. He submitted that the present exercise is an attempt to circumvent that judgment by invoking Article 143 of the Constitution.

Senior Advocates Dr. A.M. Singhvi and P. Wilson, representing the State of Tamil Nadu, supported Kerala’s position and confirmed that Tamil Nadu has also filed an application opposing the Reference. Both States contend that the Reference is an impermissible use of Article 143, seeking a reconsideration of settled issues.

Background: Tamil Nadu Governor Case

The Presidential Reference follows the Supreme Court’s ruling in the case concerning the delay by the Governor of Tamil Nadu in granting assent to Bills passed by the State legislature. In that judgment, delivered by a bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan, the Court held that Governors cannot indefinitely withhold assent to Bills, and must decide within a reasonable time frame.

The Court ruled that the Governor must act within three months under Article 200 of the Constitution, and if the Bill is reserved for the President under Article 201, the President must also act within three months. The Court explicitly held that the practice of exercising a "pocket veto" — keeping Bills pending without action — was unconstitutional.

In a significant development, the Court also declared that the ten Bills kept pending by the Governor for over a year had received deemed assent. The judgment further clarified that in case of violation of these timelines, the State Government could seek a writ of mandamus from the Court to compel action.

Key Questions Raised in the Presidential Reference

The Reference filed under Article 143 by the President raises 14 constitutional questions for the Supreme Court's opinion:

1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?

2. Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?

3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?

4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?

6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?

7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President Under Article 201 of the Constitution of India?

8. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President's assent or Otherwise?

9. Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?

10. Can the exercise of constitutional powers and the orders of/by the President/Governor be substituted in any manner under Article 142 of the Constitution of India?

11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?

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12. In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Hon'ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?

13. Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions/passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?

14. Does the Constitution bar any other6 jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

Case Title: IN RE: ASSENT, WITHHOLDING OR RESERVATION OF BILLS BY THE GOVERNOR AND THE PRESIDENT OF INDIA

Case No.: SPL. REF. No. 1/2025

Bench: Chief Justice B R Gavai, Justice Surya Kant, Justice Vikram Nath, Justice Pamidighantam Sri Narasimha, Justice Atul S. Chandurkar