The Union government has cautioned the Supreme Court that imposing fixed timelines on governors and the president to act on state bills, as mandated by the court in an April ruling, would amount to one organ of government assuming powers not vested in it, upsetting the delicate separation of powers and leading to a “constitutional disorder”.
In detailed written submissions filed in a presidential reference under Article 143, Solicitor General Tushar Mehta argued that the apex court cannot, even under its extraordinary powers in Article 142, amend the Constitution or defeat the intent of its framers by creating procedural mandates where none exist in the constitutional text.
According to SG Mehta, while there may be “limited issues in the operationalisation” of the assent procedure, these cannot justify “relegating the high position of the gubernatorial office to a subservient one”.
The positions of the governor and the president, he argued, are “politically plenary” and represent “high ideals of democratic governance”. Any perceived lapses, he said, must be addressed through political and constitutional mechanisms, and “not necessarily judicial” interventions.
The bench, comprising Chief Justice of India Bhushan R Gavai and justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurkar, has set aside nine days of hearings, starting from August 19 and spreading into September, to decide 14 constitutional questions referred by President Droupadi Murmu under Article 143.
These questions stem from the Supreme Court’s April 8 judgment that, for the first time, imposed binding timelines on governors and the president in relation to state bills, and held that prolonged inaction could result in “deemed assent” under Article 142.
The April verdict, delivered by justices JB Pardiwala and R Mahadevan, arose from a petition by the Tamil Nadu government alleging that its governor had indefinitely delayed action on 10 important bills. It directed governors to act “forthwith” or within one month on re-passed bills, and to decide within three months whether to grant assent or reserve them for presidential consideration. The ruling described the governor’s inaction as “illegal” and a constitutional subversion, prompting a fierce debate on the limits of judicial review over high constitutional functionaries.
Challenging the foundations of that decision, Mehta has told the court that Articles 200 and 201, which deal with the governor’s and the president’s options upon receiving a state bill, deliberately contain no timelines.
“When the Constitution seeks to impose time limits for taking certain decisions, it specifically mentions such time limits. Where it has consciously kept the exercise of powers flexible, it does not impose any fixed time limit. To judicially read in such a limitation would be to amend the Constitution,” he said.
Articles 200 and 201, Mehta emphasised, employ four different verbs — “assent”, “withhold”, “reserve” and “return” — each carrying distinct meaning and discretionary scope. This flexibility, he said, was “carefully crafted” by the framers to meet exigencies that cannot always be anticipated. Any attempt to fix rigid timelines “renders the intention of the framers nugatory” and hampers the ability of these high functionaries to safeguard constitutional compliance, democratic principles and the national interest.
The submissions further contend that certain “high-plenary” constitutional functions are inherently non-justiciable because they are textually committed to the political branches, and there are no judicially manageable standards for reviewing them.
“The assent of the governor or the president is integrally connected with the legislative process of a state legislature and attracts the constitutional bars on judicial inquiry under Articles 122 and 212,” Mehta said. Such acts, he added, fall within the category of proceedings that cannot be called into question in a court of law.
The SG also cited Article 361, which grants immunity to the president and governors from court proceedings for acts done in the exercise of their official duties. The phrase “done or purported to be done” in discharge of constitutional responsibility, Mehta said, is of “wide import” and bars any relief that would require these functionaries to explain their decisions or act in a particular fashion.
The Centre has argued that Article 142, which allows the Supreme Court to do “complete justice”, is curative and procedural in nature, and cannot be used to override constitutional provisions or reallocate powers vested in other organs.
“The very width of the power brings with it a high threshold of duty to not exercise the same in such a manner that amends the text of the Constitution itself and fundamental constitutional and legal principles,” the submissions stated. Article 142, Mehta insisted, is “not a supervening judicial power” that can run contrary to the constitutional scheme.
The presidential reference, the first of its kind in several years, poses far-reaching questions: whether “deemed assent” is constitutionally valid; whether timelines for governors and the president can be imposed through judicial orders; whether the exercise of their discretion under Articles 200 and 201 is justiciable; whether constitutional immunity under Article 361 precludes such review; and whether disputes of this nature can be decided through the court’s writ jurisdiction or only under Article 131, which governs disputes between the Union and states.
Kerala and Tamil Nadu have already challenged the maintainability of the reference, calling it an attempt to re-litigate settled law and a disguised appeal against the April ruling. The bench will hear their preliminary objections for an hour on August 19 before moving to the merits of the Union’s case.
Since Independence, Article 143 has been invoked at least 14 times to seek the Supreme Court’s advisory opinion on questions of law and public importance. While not binding on the president, such opinions have historically influenced constitutional interpretation in significant ways.