FOCUS - JULY 2025

Presidential Powers vis-à-vis Supreme Court Intervention

The problem between the office of the Governor and state governments in India is perhaps as old as the days of independence in 1947. But it became more acute much later due to political compulsions of ruling dispensation at the centre. Governor overstepping his constitutional brief has always been a bone of contention with the state governments, if the state government happens to be of a political outfit not in alignment with the political dispensation at the centre, as it has been happening with the Tamil Nadu government led by DMK with MK Stalin, as the Chief Minister and the Governor RN Ravi, appointed by BJP led NDA government at the centre.

Governor Ravi had, in a way, made life difficult for the Tamil Nadu government. He had held back clearance of some 10 legislations since long and was sitting on it. TN government had to take recourse to the options available to it, to break the impasse. So they knocked the door of Supreme Court for redressal.

On 8th April 2025, in a landmark judgment, the apex court held the action of Tamil Nadu governor RN Ravi to reserve 10 bills for the Presidents consideration despite their reiteration by the State assembly is illegal and arbitrary.

Here, reiteration means, the assembly has again cleared the bill without any change. After such a clearance by the state assembly governor is bound to grant assent within a month, held the Supreme Court. According to the highest court of the land, it is illegal for the Governor to again send, after repeated clearance of the bill in toto by the state assembly, for presidential assent.

According to the court the Governor must act on the aid and advice of the state legislature as per Article 200 of the constitution and governor does not have any discretionary power to hold the bill which was cleared by the assembly for the second time without any change. However while admitting that there is no specific time limit under Article 200 for the governor to take the call, it cannot be infinity, the court asserted, while adding that uncertain delays can be road block to the law-making machinery in the state.

For the first time the Supreme Court bench of Justice J.B. Pardiwala and Justice R Mahadevan spelt out the time limit while giving five instances.

1) If the assent is to be withheld, contrary to the advice of ministers, the governor must return the bill with a message within 3 months.

2) In the case of withholding of assent to the bill for the President, governor has to act within a month.

3) If the bill is to be reserved for the president, contrary to the advice of ministers, governor must do so within three months.

4) If the bill debated and passed by the assembly for the 2nd time, without any change, the governor must give his assent within a month.

5) President should decide on Bills within 3 months from the date on which such reference is received.

The apex court bench also advised the constitutional position accordingly. “The governor must perform his role as a friend, philosopher and guide with dispassion and not be guided by political considerations. In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the state machinery by his sagacity, wisdom and not run into a standstill”, the verdict had stated in conclusion.

There have been churning in the public space after the apex court verdict on the Tamil Nadu petition against the Governor for withholding the bills passed by the TN Assembly. Among the publicly aired reactions, the most significant was the one from Vice President Jagdeep Dhankar. Questioning the Supreme Court setting a timeframe for the President to take decision, V.P. Dhankar emphatically stated that ‘Judiciary cannot direct President and act as Super Parliament’ while adding that ‘Supreme Court cannot fire nuclear missiles at democratic forces.’ Using very strong words on the judiciary while speaking to Rajya Sabha interns, Vice President Dhankar said, “So we have judges who will legislate, who will perform executive functions, who will act as Super Parliament and absolutely have no accountability because the law of the land does not apply to them”. According to V.P. Dhankar, “while it is true that Article 142 of the constitution gives Supreme court plenary powers to issue orders that ensures complete justice in any matter before it, can the Supreme Court give a direction to the President, who is the custodian of the constitution, to act?!” “President takes an oath to preserve, protect and defend the constitution while all other functionaries, Prime Minister, Vice-President, parliamentarians, ministers and judges take an oath to abide by the constitution”, he added, while reiterating the superior position of the President. According to Vice President, “On what basis judiciary can direct the President of the country, when it can only interpret constitution by a bench of at least 5 or more judges. In the present case, its only 2 judges’ bench giving direction to the President?!” Stressing the principle of separation of powers, among Legislature, Executive and Judiciary, he stressed that when the government is elected by the people, government is accountable to the parliament and to the people in election. ‘There is a principle of accountability in operation. In parliament you can ask questions. But if this executive governance is by the judiciary, how do you ask questions to the judiciary? Whom do you hold accountable in elections?” he wondered. “Any incursion by one of the three institutions – Legislature, Executive and Judiciary – in the domain of the other, poses challenge which should be avoided” he remarked in conclusion. Vice President Dhankar has clearly ignited debate on the direction by the judiciary to the president of the country, which could be termed on the face of it, ultra-vires. It is another matter that Kapil Sibal, another Rajya Sabha MP and a senior Supreme Court Lawyer accused Vice President Dhankar as a spokesman of ruling party by criticizing Judiciary for its direction to the President. Except judicial independence, Sibal did not question the rationale of judicial direction to the President. Here it is pertinent to quote the former CJI Sanjiv Khanna, who retired this May 2025. In his farewell remarks to the judicial fraternity he reportedly stated that “The public trust which the Judiciary has cannot be commanded. It has to be earned”. So the question that naturally crops up is, how this trust is earned!? And comes this letter with posers from President Murmu. Reportedly in a rare and constitutionally significant move President Draupadi Murmu has invoked her powers under Article 143(1) of the constitution to seek the Supreme Court’s opinion on a series of fundamental questions relating to the role of Governors and the President in granting assent to state legislation. The introduction of concept of deemed assent as pronounced by the apex court in its 8th April judgment, the President has reportedly described it as alien to the India’s constitutional scheme. Reportedly, in her letter President Murmu has asserted that Article 200 and 201 of the constitution do not prescribe any time frame for action by Governors or the President on bills passed by State legislatures. She warned that the concept of automatic or deemed assent undermines and could distort the delicate federal balance. The 14 questions President Murmu has referred to the Apex Court for its opinion are as follows. 1) What are the constitutional options before a Governor when a Bill is presented under Article 200? 2) Is the Governor bound by the aid & advice tendered by the council of ministers while exercising all options available with him when a Bill is presented before him under Article 200? 3) Is the exercise of discretion by the Governor under Article 200 justiciable? 4) Is Article 361 an absolute bar to the judicial review in relation to actions of a Governor under Article 200? 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 by the Governor? 6) Is the exercise of discretion by President under Article 201 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 under Article 201? 8) Is the President required to seek advice of the SC by way of a reference under Article 143 and take the opinion of the SC 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, 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? 11) Is a law made by the state legislature a law in force without the assent of the Governor granted under Article 200? 12) In view of the proviso to Article 145(3), is it not mandatory for any bench of this 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 SC under Article 142 limited to matters of procedural law or Article 142 extends to issuing directions/passing orders? 14) Does the Constitution bar any other jurisdiction of SC to resolve disputes between the Union and state governments except by way of a suit under Article 131? This 14 point reference poses critical questions about the discretion, judicial review and limits of judicial intervention in legislative process. Where a deemed assent, ostensibly due to uncertain delay with the government, could become a law without a formal approval. Legal brains opine that this Presidential reference could redefine the contours of gubernatorial power and judicial authority in India’s constitutional frame work, while it could mark a turning point in Centre-State relation. However without going into the nitty gritty of Presidential reference, as an ordinary thinking Indian few dimensions of the Supreme Court order of April 8 clearly comes to mind. It is clear that Vice President Jagdeep Dhankar appears to have got disturbed and worked-up with the 2 judges’ bench of the Supreme Court passing the order that President should clear the bill sent for his/her assent by the governor within 3 months. This dimension of direction by the SC bench was clear anathema according to him. Prima facie, this 2 judges bench of Supreme Court, of Justices Pardiwala and Justice Mahadevan has encroached on the executive space of constitution of legislating law relating to pending bills with the governor. This is wrong by any stretch of logic. Not only they have no role to direct the President, who is the Supreme Commander of armed forces, to act within a particular timeline they cannot even ask governor to clear the bills pending with him within the period prescribed by this bench. All that they could have done was to make Union government a party to the petition by Tamil Nadu government and pose questions about the dilemma of uncertainty of bills being kept pending indefinitely, shouldn’t the Union Government deliberate the need for fixing any time frame and decide accordingly?! This way, the matter could have come to the parliament and for sure the executive could have come up with some solution without any hackles raised on the incursion by the Judiciary. Hope with this questionnaire from the President to the Chief Justice of India elicits adequate response for the satisfaction of all concerned.