Most of the legal issues adjudicated in State of Tamil Nadu v. Governor of Tamil Nadu were revisited by the Supreme Court in its advisory opinion on the Presidential Reference of 2025. The five-judge Bench, acting under Article 143, delivered an opinion that carries precedential value, which to some extent overruled the law laid down in State of Tamil Nadu. However, as an advisory opinion, it does not alter the final decision or operative directions issued by the Division Bench in that case.
A comparison between the two reveals unanimity on the first major issue: the Governor does not possess an absolute or “pocket veto” over bills presented for assent. Both the judgment and the advisory opinion affirm that the Governor lacks a “fourth option” of indefinitely withholding assent without returning the bill to the legislature for reconsideration.
State of Tamil Nadu held that granting assent or returning a bill must be undertaken on ministerial advice, while reserving a bill for the President is discretionary—but only in exceptional circumstances. The Presidential Reference, however, concludes that all three options under Article 200 are discretionary.
The central point of contention before the Court concerned the Governor's use of the third option under Article 200—reserving a bill for the consideration of the President. While State of Tamil Nadu accepts that this power is discretionary, it nonetheless treats its exercise as subject to judicial review. According to the Division Bench, the Governor may act without ministerial advice only in accordance with constitutional requirements, including the second proviso to Article 200, and in situations recognized by precedent. Because the circumstances in which such discretion may be exercised are both limited and legally defined, the judgment holds that the Governor's decision is justiciable—particularly when allegations of mala fides or arbitrariness are raised.
The Division Bench had laid down indicative timeframes for the exercise of powers under Articles 200 and 201, clarifying that these were not intended to curtail discretion but to address situations of indefinite inaction or mala fide delay. Drawing support from the first proviso to Article 200, the Court emphasized expeditious decision-making as a constitutional obligation. The advisory opinion does not reject accountability; it acknowledges that prolonged and indefinite inaction may be subject to judicial review. However, it firmly rejects the approach of judicially prescribing timelines in the absence of an express constitutional provision, calling the distinction between a “judicial tool” and a limitation on power artificial.
The Supreme Court, in its advisory opinion, held that courts cannot examine the merits of the Governor's decision to reserve a bill for the President's consideration, since such action forms part of the legislative process and judicial interference would offend the doctrine of separation of powers. A further reason cited for non-justiciability was that, until a bill receives assent under Articles 200 or 201, the legislative process remains incomplete and the bill cannot be assessed on its merits.
However, the advisory opinion leaves several questions unanswered regarding its approach to judicial review and the justiciability of the Governor's actions.
I. The nature of the lis in the present case is exceptional and therefore warrants correspondingly exceptional judicial measures. Judicial review is sought not by a private individual but by the State government itself, which bears the constitutional duty to give effect to the people's will—against none other than the titular head of the State, the Governor. The opinion relies on Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) that held that the validity of a law cannot be challenged on the ground of improper assent and that the legislative process is immune from judicial scrutiny. However, Hoechst arose in an entirely different context, where a private litigant sought to invalidate a statute on procedural grounds. In contrast, the present dispute involves the State challenging the Governor's allegedly arbitrary, mala fide or ultra vires actions, undertaken in disregard of constitutional conventions and in a manner that obstructs the implementation of a duly enacted legislative will.
II. On a related ground, the advisory opinion deems the Governor's action non-justiciable because the legislative process remains incomplete prior to assent. However, in this context, the state's very apprehension is that the legislative process may never reach completion unless the Governor's questionable conduct is checked by the Court.
III. The focus of scrutiny is not the bill itself but the potential misuse of discretion by the Governor. The bill constitutes merely the material for consideration—akin to the material before the President under Article 356, which can be seen by the Court when assessing the validity of a proclamation of President's Rule.
IV. The distinction drawn in the advisory opinion from Rameshwar Prasad v. Union of India (2006)—that the latter concerned executive action, whereas Article 200 involves a legislative function—appears unconvincing. In Rameshwar Prasad, the Court unequivocally held that arbitrary, mala fide, or ultra vires actions are amenable to judicial review. Even the advisory opinion itself acknowledges that prolonged delay or indefinite inaction under Articles 200 and 201 may invite judicial intervention, and that a writ of mandamus may be issued to compel the Governor to act, notwithstanding the characterization of such actions as legislative. The only remaining distinction, therefore, is that ultra vires actions in the legislative sphere are considered immune from review, while similar actions in the executive sphere are not—a difference that, with respect, appears artificial.
V. It is well-established that discretion does not confer a license to act arbitrarily or with mala fides. Arbitrariness is antithetical to the rule of law, and discretion ceases to be meaningful if exercised whimsically, capriciously, or in bad faith.
VI. State of Tamil Nadu held that the Governor's discretionary powers are legal in nature, and their exercise is legally circumscribed by constitutional provisions and judicial precedent. To deny judicial review in such a context risks undermining the very constitutional source of that power.
VII. Expecting a constitutional authority to act within the limits of the Constitution, and not in an arbitrary or mala fide manner, does not violate the doctrine of separation of powers. On the contrary, it reinforces the constitutional scheme, wherein the Supreme Court, as the guardian and final arbiter of the Constitution, is entrusted with the duty to intervene when a constitutional authority acts in a manner that infringes Fundamental Rights or subverts constitutional principles. The centrality of judicial review to this framework was underscored by Dr. B. R. Ambedkar, who described Article 32 as the “heart and soul of the Constitution,” emphasizing that the rights would be meaningless without an effective remedy for their enforcement.
While both approaches recognize the exceptional nature of the Governor's discretionary powers, their divergence on the question of justiciability has profound implications for constitutional governance. It raises a fundamental concern: what remedy exists when a constitutionally conferred discretion is exercised in a manifestly arbitrary or mala fide manner?
The precedential value of the Supreme Court's advisory opinion makes it analogous to the “law declared” by the Court under Article 141 of the Constitution. However, since such an opinion is not the outcome of an adversarial adjudication, it does not attract the procedural remedies of review or curative petition, nor can it be reconsidered by a larger Bench in the ordinary course. Only in an appropriate future proceeding, before a Bench of greater strength, can the legal position in the opinion be re-examined. This procedural limitation underscores why, under a Presidential Reference, the Supreme Court ought not to adjudicate or reconsider a settled question of law, but rather confine itself to expressing an opinion on the existing state of the law as laid down in prior decisions. How the law on the justiciability of the Governor's actions ultimately evolves will now depend on future judicial interpretation in an appropriate proceeding.
Author is Advocate On Record, Supreme Court of India. Views Are Personal.