State Of Tamil Nadu V Governor Of Tamil Nadu: Upholding Constitutionalism

The position that in the discharge of functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Article 163(2), for, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negatives the view that the President/Governor has general discretionary power to act against ministerial advice. The area of discretion is defined and confined. This holds good even in the matter of assent to Bills. The Constituent Assembly Debates and the judgments underscore this position.

The Supreme Court declared the law in Samsher Singh v State of Punjab (AIR 1974 SC 2192): (1974) 2 SCC 831: We have no doubt that deSmith's statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional....” The only sequitur is that refusal of assent is justiciable. This is because refusal of assent would be unconstitutional means that such refusal can be judicially scrutinised and so declared by the court. In the light of this unequivocal enunciation of the constitutional position the President or the Governor cannot decline to assent to a legislation validly passed and if he does so, such action is justiciable and can be declared unconstitutional and he be compelled to grant assent.

The passing observation in some earlier judgements that assent is not justiciable is not really the ratio. The question did not directly arise and was not put in issue and decided in those cases. There is no discussion to reach such a conclusion and those casual observations are really obiter. A proper and closer reading of the judgements will indicate that the position is otherwise.

In Purushothaman Nambudiri v State of Kerala (AIR 1962 SC 694), the Court only observed that the Constitution does not impose any time limit within which the Governor should make any of the declarations (and similarly in the case of the President also) –para 16. The issue was whether a Bill lapses with the prorogation or dissolution of the House. All this was over 60 years ago.

In Hoechst Pharmaceuticals Ltd. v State of Bihar, (AIR 1983 SC 1019): (1983) 4 SCC 45 again the contention was that the law was relatable to a subject in the State list and there was no necessity or occasion for the Governor to have referred the Bill to the President for his assent. It was held in that context that the assent of the President is not justiciable and 'no infirmity arising out of his decision to give such assent could be spelled out.' These last words contain the key to the decision and indicate that in the circumstances there was no infirmity in giving assent. It would thus be possible to examine if there is any infirmity and decide the matter which indeed is justiciability of assent.

In Bharat Seva Ashram Sangh v State of Gujarat (AIR 1987 SC 494): (1986) 4 SCC 51 there is only an incidental observation following and quoting Hoechst Pharmaceuticals Ltd. that assent is not justiciable. The question did not at all arise.

These decisions do not detract from the tenability and appropriateness of the earlier discussion. The judgement in Samsher Singh {in 1974 by a 7 Judge Bench} has not been noticed in Hoechst Pharmaceuticals {in 1983 by 3 Judges} or in Bharat Seva Ashram {in 1986 by 2 Judges} in which cases it has been casually observed that assent is not justiciable. In any event the later judgement in MP Special Police Establishment (2004) 8 SCC 788{by a 5 Judge Bench} should clinch the issue.

Some recent decisions of the Supreme Court have been more heartening. In State of Telangana v Governor of Telangana, (2024) 1 SCC 405 the Supreme Court while leaving the question of law open at that stage, observed that the expression “as soon as possible” in the proviso to Article 200 has a significant constitutional content and must be borne in mind by constitutional authorities, emphasising that in case a Governor withholds assent to a Bill, he has to mandatorily return the Bill to the legislature expeditiously together with a message for reconsideration.

In State of Punjab v Governor of Punjab, (2024) 1 SCC 384 a 3-judge Bench considered the matter in greater detail and comprehensively enunciated the legal position:

In a Parliamentary form of democracy real power vests in the elected representatives of the people. The manner in which the role of the Governor as a symbolic Head of State is performed is vital to safeguard the basic feature of federalism. The language of Article 200 that the Governor “shall declare” (i) either that he assents to the Bill; or (ii) that he withholds assents therefrom; or (iii) that he reserves the Bill for the consideration of the President implies that the Governor is required to declare the exercise of his powers. The first proviso to Article 200 attaches to the second option - withholding of assent and stipulates that the Governor may “as soon as possible” return the Bill. The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the State Legislature “as soon as possible” a message warranting the reconsideration of the Bill. The expression “as soon as possible” is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage.

The concluding part of the first proviso however stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase “shall not withhold assent therefrom” is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor shall not withhold assent. The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the State legislature. This is compatible with the fundamental tenet of a Parliamentary form of government where the power to enact legislation is entrusted to the elected representatives of the people. The Constitution evidently contains this provision bearing in mind the importance which has been attached to the power of legislation which squarely lies in the domain of the State legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.

Otherwise the Governor, the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature. The Governor's constitutional powers cannot be used to thwart the normal course of lawmaking by the State Legislatures. That would be contrary to fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.

The law has been carried further in State of Tamil Nadu v Governor of Tamil Nadu [WP (C) No.1239 of 2023, decided on 8.4.2025] 2025 INSC 481 which is to be hailed as a historic judgment. State of Punjab has been reiterated and followed. The first proviso to Art 200 relates to withholding assent and in case the Governor opts to withhold assent he is under an obligation to follow the procedure laid down therein 'as soon as possible'. It was enunciated:

The words 'shall declare' in the substantive part of Art 200 leave no scope for inaction. Neither pocket veto nor absolute veto finds a place in the scheme and mechanism envisaged under Art 200 which is characterized by the movement of the Bill from one constitutional authority to another with a sense of expediency. The Governor can neither sit on the Bills and exercise 'pocket veto' nor declare a simplicitor withholding of assent. As a general rule the Governor cannot reserve a Bill for the consideration of the President once it is presented to him in the second round after the legislature considers his message and again passes the Bill except when the Bill presented in the second round is materially different from the one presented first.

The President too while exercising power under Art 201 is subject to the same constitutional limitations. The words 'shall declare' in Art 201 make it mandatory for the President to act; there is no pocket veto or absolute veto available to the President also. The proviso to Art 201 attaches to the option of withholding assent as in Art 200. The President has to furnish reasons for withholding assent. A lack of reasons or even insufficiency thereof may do violence to the concept of 'limited government' on which the edifice of our Constitution has been built. The whys and wherefores of the President's actions provide a basis for judicial review and allow the courts to assess the validity of the decision as well as ensure accountability between the three pillars of government which is in consonance with the idea of checks and balances in the constitutional set-up of our country.

While no express time limit is prescribed for the discharge of functions under Arts 200 or 201, it is settled that every power must be exercised within a reasonable time and the courts are well empowered to prescribe a time limit for the discharge of a function or exercise of a power which by its very nature demands expediency. The Court accordingly laid down certain timelines regarding exercise of power under Arts 200 and 201, not to fundamentally change the procedure and mechanism stipulated by these provisions but only to lay down a determinable judicial standard for ascertaining the reasonableness of the exercise of power. This cannot be faulted.

The Court held that the power of judicial review in a written constitution is implicit, unless expressly excluded by a provision of the Constitution. The determining factor in deciding whether a power would be subject to judicial review is the subject-matter of such power and not its source. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of Bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards. The different situations and circumstances where the action of the Governor/President under Art 200/201 is justiciable have been clearly delineated and the grounds of judicial review stated.

The myth about non- justiciability has been finally and expressly exploded with the Supreme Court declaring that withholding of assent or reservation of Bills for the President's consideration is justiciable.

It is well settled that no power is inherently unreviewable and in a constitutional democracy wedded to the rule of law unfettered and unreviewable discretion is a contradiction in terms. Further, it is not correct to talk of powers. Every constitutional authority has functions to perform, duties to discharge. It is gladdening that the Court observed: Constitutional authorities are creatures of the Constitution and are bound by the limitations prescribed by it. No authority, in exercise of its powers, or to put it precisely, in discharge of its duties, must attempt to breach the constitutional firewall.

The view taken in B.K. Pavitra (2019) 16 SCC 129 has been declared to be per incuriam to the extent it observed that the Constitution confers discretion upon the Governor insofar as the reservation of Bills for the consideration of the President is concerned and that the exercise of discretion by the Governor under Article 200 is beyond judicial scrutiny.

It is wholly misconceived and jejune to see or talk about the present judgment as a victory for one or the other-the Chief Minister or the State Government- and a setback to the Governor. It is important that we recognize this not as anyone's personal victory. It is a triumph for constitutionalism and the rule of law. It is equally uninformed and erroneous to view this as judicial over-reach or amending the Constitution. It is pure and simple constitutional enunciation for which purpose the Court exists. This is in keeping with the constitutional ethos. It is the constitutional position that prevails in other jurisdictions as well, many of which have been referred to in the judgment. Even in a monarchy (now constitutional) –U.K. there has been no veto to a Bill since 1707 during the reign of Queen Anne. Hood Phillips observes that to refuse assent would now be unconstitutional.

The Constitution does not envisage two parallel centres of power: the elected government and the unelected Head of State. Such parallel power centres would ensure not constitutional order, but chaos. Legislation is the expression of the will of the ultimate sovereign, the people expressed through their elected representatives, the legislatures. When a Bill duly passed by the legislature is not promptly assented it will mean that the will of the people is neutralised and the policies and programmes of a democratically elected government are put on hold. That would be harmful to democracy and federalism and the larger public good and effectually make a mockery of the Constitution and constitutionalism. It is in that background that the Court has expounded the law and it is in that light the judgment is to be seen and understood.

It is now well settled that every State action has to be reasonable. The reasonable exercise of power inheres its exercise within a reasonable time. Where no time limit is fixed for the exercise of power, it has to be exercised within a time that can be held to be reasonable. This is all that the Court has done in fixing timelines for action under Arts.200 & 201. It is to be noted that the timelines have been laid down taking into consideration the recommendations of the Sarkaria and Punchhi Commissions as also guidelines issued by the Union Home Ministry in this behalf. They are fixed more for the Court to determine in judicial review whether the action is reasonable. It is not an amendment to the Constitution. Also, the judgment has not at all said that there would be deemed assent if the timelines are breached or for any other reason. [see paras 237 to 241] These observations are unmistakable:

"Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not be construed as timelines laid within the edifice of the provision, rather should be understood as timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has occasioned in the exercise of such powers. ....The reason why these time-lines do not immolate the very fabric of Article 200 is because the said provision even with the infusion of these time-limits still remains markedly different from its counterpart provisions where such time-limits are legislatively prescribed. For instance, Article 75 of the Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of the U.S. Constitution, where if no decision is taken within the stipulated time-limit by the President then the bills are deemed to have been assented to." [para 239]

It is to be remembered that every interpretation is in its context. “In law context is everything.” There is an underlying principle and purpose behind Constitutional provisions. The constitutional underpinning in this case is that in a democracy a Bill which is passed by the legislature cannot be stifled or rendered nugatory. The question of its constitutionality or otherwise is for the courts once it becomes a law after assent is given. What the Court has done in this case is only imbuing the gaps and silences in the Constitution with substantive content by infusing them with a meaning which enhances the rule of law and promotes a constitutional culture.

It is only in the present case in its very special, shall we say, bizarre circumstances and the Governor's conduct (despite the law laid down) which the Court found “as it clearly appears from the events that have transpired even during the course of the present litigation has been lacking in bona fides” that the Court in exercise of powers under Art 142 declared that the Bills are deemed to have been assented to by the Governor on the date when they were presented to him after being reconsidered. In any event Art 200 expressly mandates that he shall assent when the Bills are reconsidered and passed by the legislature and again presented to him. The concluding words of the first proviso to Art 200 emphatically lay down that the Governor shall not withhold assent. The law having been clearly laid down, and that flows from Art 200, that the Governor cannot reserve a Bill for the President's consideration after it has been reconsidered and passed by the legislature and presented to him again and in that circumstance he has no option but to assent. In the factual context of the present case, the Bills having been presented to him the second time after they were passed by the legislature, the assent of the Governor was a mere formality and deemed assent inevitably follows in such case. Therefore even without appeal to Art 142, the same result would follow-the Bills would be deemed to have been assented. This can invite no criticism.

It is also unfortunate and misguided that the judgment is seen as giving directions to the President and objections are raised in some quarters. The constitutional position is settled that the President is only a metaphor for the Union Council of Ministers. Further a variety of Presidential powers and functions have been the subject of judicial review over the years: Actions under Art 356-imposition of President's rule, Art 156-pleasure doctrine-removal of Governors, Art 72 & 161- power of pardon are some areas where the Court has scrutinised actions of the President or the Governor and issued directions. Needless to mention judicial review is constitutionally entrenched in India and it is well recognized that the range of judicial review exercised by the superior judiciary in India is perhaps the widest and the most extensive known to the world of law. It is significant to note that even in UK where the concept of Parliamentary supremacy exists and judicial review is to that extent limited, the UK Supreme Court in R (on the Application of Miller) v The Prime Minister [2019] UKSC 41 ruled that the royal prerogative of prorogation of Parliament was amenable to judicial review and the impugned prorogation was held to be unlawful and it was declared that there was no prorogation. It is also not correct to say that the Court has followed other Constitutions. They have been referred to only for analogy and pointing out differences and to show that the principle or idea has inhabited other minds in other jurisdictions too.

This writer has been advocating that there should be appropriate Constitution amendments prescribing a time frame for action under Arts 111, 200 and 201; and further if no action is taken within that time frame there shall be deemed assent as in the U S Constitution. The question is who will bell the cat?

This judgment and the earlier State of Punjab, for the first time, expounded the correct constitutional position on assent by the Head of State to Bills duly passed by the legislature. It has taken the law forward in the right direction in fostering constitutionalism. It is gratifying that what is laid down now has been the view of this writer also expressed in various writings and lectures over the years regarding assent to Bills- that there is no discretion in the Head of State in that behalf and that withholding assent is justiciable.

It may, perhaps, have been better if this judgment was by a Constitution Bench. It is, however, true that this Bench has not laid down anything very new or different. It has not really expounded the law; it has only applied and amplified and taken the law further. This is indeed welcome: A Constitution Bench sitting would have taken a much longer time. It is not inapposite to make another comment: the judgment is not characterized by brevity. While it is comprehensive, it is very lengthy, running to over 400 pages and tiring, one tends to lose the focus. Justice Krishna Iyer had captured the essence of all this in about 30 pages in Samsher Singh and in one pithy sentence that 'refusal of assent would be unconstitutional' established that assent, or rather its refusal, is justiciable. We must, of course, bear in mind the sage advice of the Law Commission that conciseness should not come at the cost of completeness and that the stress on brief judgments should not provide a cover for mental lethargy or an alibi for intellectual dishonesty. The need is to strike the right balance.

Even so, the present judgment has once again demonstrated that judges tend the gate between order and anarchy. The contribution of the Apex Court in upholding the Constitution and promoting constitutionalism has been quite impressive. What was said about the American Supreme Court by Chief Justice Charles Evans Hughes, “The Republic endures and this is the symbol of our faith” truly applies to our Supreme Court as well.

The author is a Senior Advocate at High Court of Karnataka and views are personal.