SUPREME COURT IN PRESIDENTIAL REFERENCE: INDEFINITE WITHHOLDING OF BILLS BY GOVERNOR WOULD RENDER LEGISLATURE INEFFECTIVE:

During the hearing of the Presidential Reference concerning issues related to the assent of Bills, the Supreme Court on August 21 observed that if Governors were to withhold Bills indefinitely, the functioning of the legislature would effectively be rendered defunct. The bench, comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice AS Chandurkar, posed the question of whether the courts are truly powerless to intervene in such a situation.

The discussion began after Solicitor General Tushar Mehta argued that the judiciary cannot issue binding directions to the President or Governors. In response, Chief Justice Gavai raised a hypothetical situation, noting that if a Governor simply refused to act on a Bill passed by a competent legislature, it could paralyze the democratic process. He recalled past judgments in which the court struck down attempts to limit judicial review, observing that no constitutional authority, however high, should be beyond scrutiny if it refuses to perform its duties.

The Solicitor General maintained that the Court should not create precedents based on extreme or unlikely scenarios. According to him, such issues fall within the political rather than the judicial domain. He stressed that democratic institutions are designed to resolve such deadlocks and warned against assuming that the judiciary is the only institution capable of addressing every constitutional impasse. He further submitted that Governors and other constitutional functionaries must act responsibly and are ultimately accountable through democratic processes, even if not directly to the people.

At this point, Chief Justice Gavai interjected, remarking that Governors are not directly answerable to the electorate. The Solicitor General replied that the office of Governor is among the most vulnerable positions in the constitutional framework, as a Governor can be removed by the Union Government at any time.

Justice Narasimha raised the question of whether constitutional immunity shields Governors in cases where they delay action on a Bill. He distinguished between the decision itself—such as granting assent, refusing it, or referring it to the President—which is protected from judicial review, and the decision-making process, which may still be subject to scrutiny. Referring to the Kesar-i-Hind case, he explained that immunity applies to the reasons behind a decision but not to the failure to act on a constitutional obligation. The Solicitor General responded that his arguments were not based on immunity but on the limits of judicial intervention, pointing out that while the Court had interfered in decisions under Article 356, it could not assume the functions of the Governor.

The bench, however, pressed the issue further, questioning what remedy would exist if a Governor indefinitely withheld a Bill without exercising the option of returning it under Article 200. Chief Justice Gavai observed that in such a case, the legislature would become ineffective, even though it represents the will of the people through an elected majority. The Solicitor General reiterated that the solution lay in constitutional amendments or political processes, not judicial directions, and objected to the earlier Tamil Nadu judgment which introduced the notion of deemed assent.

The Chief Justice clarified that the present bench was not sitting in appeal over the Tamil Nadu case but was instead examining broader constitutional issues raised by petitions from Kerala, Tamil Nadu, Punjab, and West Bengal. He asked the Solicitor General to consider a scenario where a Governor delays action on Bills for several years, questioning what such paralysis would mean for the democratic framework. The Solicitor General maintained that not every constitutional problem has a judicial solution.

Before concluding, the bench suggested keeping open the question of whether a State can directly file a petition under Article 32 on such matters. Senior Advocate Neeraj Kishan Kaul, representing Madhya Pradesh, supplemented the Solicitor General’s arguments by asserting that under Article 200, the Governor has a standalone option to withhold assent without necessarily returning the Bill to the Assembly. However, Chief Justice Gavai noted that the language of Article 200 uses the word “shall,” questioning whether the Court must remain powerless if a Governor refuses indefinitely to act.