Presidential Reference Opinion Is Concerning For Reasons Other Than Removal Of Time Limits

In the aftermath of the Supreme Court's opinion in the Presidential Reference - which held as erroneous the judgment in the Tamil Nadu case setting timelines for the President and Governors to act on Bills - most of the public debate is centred on whether an “opinion” can overrule a “judgment.” There are also concerns raised about the removal of the timelines fixed by the two-judge bench.

However, the real concerns lie elsewhere. The removal of universal timelines for assent may appear reasonable,  since the Court has left room for States to seek time-bound directions on a case-by-case basis. There are two other less discussed consequences of the opinion, which could be more problematic.

Opinion Shields Assent Decisions from Judicial Review

One of the most significant takeaways from the Presidential Reference is the Court's conclusion that decisions made by the Governor or the President under Articles 200 and 201, whether to withhold assent, refer a Bill to the President, or refuse assent, cannot be judicially reviewed.

This conclusion relies on past cases such as- State of Bihar v. Kameshwar Singh, 1952 INSC 28; Hoechest Pharmaceutricals Ltd. v. State of Bihar, 1983 INSC 61; Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., 2002 INSC 406; Bharat Sevashram Sangh v. State of Gujarat; B.K. Pavitra v. Union of India 2019 INSC 671 - which held that the exercise of functions under Articles 200 and 201 is beyond judicial scrutiny. However, all these earlier rulings dealt with challenges to the grant of assent. That context is crucial.

When assent is granted, the Bill becomes law, and its validity can still be tested on established constitutional grounds. When assent is refused, especially after a Bill has been reserved by the Governor, the Bill dies.

This means that while courts have avoided examining the grant of assent to prevent premature challenges to legislation, refusal of assent has an entirely different consequence. It blocks the legislative process altogether.

In the Tamil Nadu case, the Governor had kept multiple Bills pending for years and then referred them to the President after they were re-passed by the Assembly. This was found to be a mala fide act done to circumvent judicial scrutiny. If such actions cannot be challenged at all, States are left with no remedy even in cases of blatant delay or mala fide conduct. It was these glaring circumstances which forced the two-judge bench in that case to rule that the Governor acted with mala fides (see paragraphs 431 to 433 of TN judgment where the lack of bona fides is explained).

A Departure from Established Principles

It is a well settled principle now that actions of Governors are not beyond judicial review as per Article 361 if they are patently arbitrary or malafide or without application of mind (see Nabam Rebia, Rameshwar Prasad v. Union of India (2006) etc). Even though the Court cannot sit in appeal over their decisions, there is a limited judicial review available to affirm if the decision was non-arbitrary, bona fide and based on materials.

By treating all assent-related decisions as absolutely non-justiciable, the Presidential Reference opinion elevates the Governor and President to a position of unchecked discretion. This is unrealistic in India's political context, where these offices often operate within politically charged environments rather than above them.

Hence, it would be in conformity with the principle in Rameshwar Prasad, Nabam Rebia, etc, to hold that actions of a Governor in arbitrarily sending a Bill to the President, and the action of the President in arbitrarily refusing assent, can be subjected to judicial review in a limited circumstance of gross egregiousness or malafide, as outlined in the precedents. Otherwise, a State would be left wholly remediless when the President refuses assent to Bills. For example, the President recently returned a Kerala Bill without assigning any reason. As per the reference opinion, there is no remedy against such an action by the President.

Governor Allowed to Refer Re-Passed Bills to the President

The opinion also holds that a Governor may refer a Bill to the President even after the Legislature has re-passed it. This relies on a narrow reading of the first proviso to Article 200, which says the Governor “shall not withhold assent” once the Bill is re-passed. The Court interpreted this to mean that while withholding assent is barred, referring the Bill to the President remains an available option.

This view will allow delays in the legislative process even after the democratic mandate is reiterated. It opens the door to repeat the Tamil Nadu situation, where re-passed Bills that were the same as the original versions were again sent to the President.

If the interaction between the Governor and the Legislature is genuine and constructive, referral to the President should logically occur during the first round of consideration and not after the House has reaffirmed the Bill.

As for the anxiety expressed by the reference bench regarding the house inserting new amendments in the re-passed bill, it was already taken care of by the Tamil Nadu judgment, which held that if the re-passed bill is different from the initial version, all three options are freshly available to the Governor. Therefore, the option to refer to the President in the second round should have been confined to situations where the Bill is materially altered.

The phrase “shall not withhold assent” should have been understood as a mandate that the reiteration of the Bill by the Assembly is binding and that assent must be compulsorily granted.

By shielding assent decisions from judicial scrutiny, and allowing Governors to refer Bills even after re-passage, the opinion risks weakening State legislatures, enabling political misuse, and reducing accountability of constitutional authorities. The Court justified the reference by saying the Tamil Nadu judgment created confusion. Yet in key respects, the new opinion may have compounded it.

The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in