Dhileepan Pakutharivu
Rationalist Writer
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In a momentous ruling that rekindled the spirit of constitutional federalism, the Supreme Court in The State of Tamil Nadu v. The Governor of Tamil Nadu held that Governors cannot sit indefinitely on Bills passed by State legislatures. Invoking its extraordinary powers under Article 142, the Court declared that the pending Bills—which had languished without action for years—shall be deemed to have received assent. More significantly, it held that the Governor had “acted with clear lack of bona fides in reserving the Bills for the consideration of the President.” The ruling, seen by many as a vindication of State autonomy, has since sparked political, constitutional and institutional debate, culminating in a Presidential Reference under Article 143(1)—raising critical questions about the limits of judicial power, executive discretion and the edifice of Indian federalism.
From Silence to Action
The Constitution under Article 200 envisages four options for a Governor when a Bill is presented: assent, withholding assent, returning the Bill (if it is not a Money Bill) or reserving it for the President. However, what it does not permit is inaction. By interpreting the phrase “as soon as possible” in Article 200 to mean within a reasonable time, the Supreme Court of India made it clear that legislative processes cannot be indefinitely obstructed by constitutional functionaries. In its own words, “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.” It further noted that the framers had consciously removed the words “in his discretion” from the draft Article, reinforcing the Governor’s obligation to act in accordance with the ‘aid and advice of the Council of Ministers.’
Yet, the controversy did not rest there. The Attorney General, expressing dissatisfaction with the ruling, hinted at a possible review petition. None has materialised to date. Instead, a more circuitous path was chosen: the Hon’ble President of India invoked Article 143(1) of the Constitution to refer 14 questions of law to the Supreme Court—questions that stem directly from the judgement itself. These include queries regarding the scope of Article 142, the applicability of Article 145(3) and whether such disputes ought to be resolved exclusively through a suit under Article 131. The move by the Chief Minister of Tamil Nadu, has characterised as an attempt to “incapacitate the State Legislature” and “challenge the authority of the Supreme Court as the final interpreter of the Constitution.” While this may be politically articulated, the reference does raise larger institutional concerns.
A Constitution Above All
The Vice-President of India, himself a constitutional functionary and a senior advocate, made remarks suggesting that the Court was acting like a “Super Parliament.” He went further to question the timeline set by the Apex Court for the Hon’ble President of India to act on Bills, though the President was not a party to the proceedings. Such comments, besides being inappropriate in tone, are legally unsound. As Lord Diplock once observed, “The privilege is not absolute but qualified. It is lost if the occasion which gave rise to it is misused.”
On a subsequent occasion, then Chief Justice of India Sanjiv Khanna reminded all institutions that, “It is the Constitution that is higher than all of us.” Echoing this sentiment, present Chief Justice of India B.R. Gavai, during his felicitation, observed, “Every organ of the Constitution must reciprocate and show respect to other institutions.” Both emphasised that judicial review, being an inherent judicial function, cannot be dismissed as overreach, rather, it is a constitutional duty entrusted to the judiciary itself.
Against this backdrop, the presidential reference brings to the fore a fundamental question: Can the advisory jurisdiction under Article 143(1) be invoked to indirectly contest a binding judgment of the Supreme Court? While the President does have the discretion to seek the Court’s advisory opinion under this provision, it is well-established that the Supreme Court is not obligated to respond if it deems it unnecessary. In Re: Special Courts Bill (1978), the Court voiced concern that even references could amount to “an exercise in futility.”
A Backdoor Challenge?
Some legal experts suggest that the Union’s use of a Presidential Reference, instead of a review petition, signals political unease more than a genuine constitutional concern. Notably, the Attorney General, who argued the original case, did not request a larger Constitutional Bench—a fact that weakens the post facto justification for seeking re-evaluation through Article 143. It recalled the principle that “what cannot be done directly, cannot be done indirectly.” Furthermore, the reference appears to carry undertones of confrontation. Instead of accepting the judgment (relief moulded under Article 142) as law declared under Article 141, the Union has chosen to test the very foundation of that principle. This raises the spectre of institutional friction, one that the Constitution was designed to prevent.
A Governor’s withholding assent to duly passed legislation—without cogent reasons or within a reasonable timeframe—amounts to a subversion of democratic and federal principles. Thus, the Supreme Court’s intervention in this case has reinforced a vital aspect of constitutional accountability. When it set a timeline for the President and Governors, it was not legislating but interpreting constitutional silence to avert democratic deadlock. By applying the “mischief rule” of statutory interpretation, the Court aimed to curtail the arbitrary exercise of gubernatorial discretion and thereby safeguard the democratic will (of the legislature/people).
The Road Ahead
This is not the first time that a Presidential Reference has raised eyebrows. Of the fifteen references made since independence, only one—concerning the Babri Masjid dispute—was left unanswered as it involved deciding questions of fact. Whether the Supreme Court will entertain this reference or decline to respond remains to be seen. But its decision will set an important precedent on whether Article 143(1) can be invoked to indirectly override a judicial verdict. It must remain mindful that its role is advisory and guard against being drawn into a political thicket. As the maxim goes, lex non cogit ad impossibilia—the law does not compel the impossible, but it does require fidelity to the Constitution. With this in mind, the Court must uphold the integrity of its earlier ruling while carefully navigating the contours of Article 143.
Before concluding, it is worth recalling the wise words of former Chief Justice of India P.B. Gajendragadkar, who answered two Presidential References: “I earnestly hope that the present trend of the Court’s decisions does not lead to any confrontation between the Highest Court and Parliament. If that unfortunate event were to take place, it will mean grave danger to the future of democracy in this country.” In our constitutional framework, separation of powers is not a wall but a bridge—each organ standing independently, yet united in their shared commitment to uphold the rule of law.
The battle over gubernatorial assent is, at its core, a test of our democratic maturity. Can the organs of the State and creatures of the Constitution honour each other’s roles without encroaching upon them? Can constitutional mechanisms be used for dialogue rather than discord? The answers will define not only this moment but also the future of representative democracy, cooperative federalism and the constitutional morality for years to come.
