The Supreme Court’s recent opinion on the Presidential reference under Article 143, dealing with the timelines for assent to State Bills by Governors and, in some cases, the President, is being celebrated in certain quarters as a triumph of constitutional propriety. The five-judge Bench, in a 111-page unanimous verdict written anonymously, has expounded at length on what it calls a “swadeshi interpretation” of the Constitution. One cannot help but be reminded of another famous anonymous order that floated “faith and belief” as guiding principles of constitutional adjudication.
Names do not matter; ideas do. And the ideas propounded in this opinion deserve close scrutiny, for they strike at the root of federal balance, democratic governance, and ultimately the basic structure of our Constitution.
A familiar constitutional question
Questions concerning gubernatorial discretion are not new. For nearly seven decades, the Supreme Court has consistently held that the Governor is but a shorthand expression for the State government — a constitutional head who acts on the aid and advice of the Council of Ministers, except in a narrow band of situations. In decisions concerning the exercise of the pardoning power, dissolution of Assemblies, and summoning of Houses, the Court has repeatedly reminded us that the Governor enjoys no personal political authority.
Yet, over the last decade or more, we have witnessed a disturbing trend: Governors in several States have begun to act as parallel political actors, stalling Bills, sitting on files, delaying assent, and creating legislative stalemates. It is no coincidence that such
friction arises almost exclusively in States ruled by parties opposed to the ruling party at the Union.
The Constitution never intended Raj Bhavans to become political outposts. But constitutional silences, when exploited, have a way of rewriting institutional behaviour.
The Court’s response: restraint or abdication?
The Presidential reference sought clarity on whether Governors (and the President in cases of reserved Bills) are required to act within a reasonable time, and whether courts could prescribe timelines to prevent State governments from being held hostage to indefinite delay. The Court’s answer, bluntly put, is this: No timelines, no deemed assent, and no judicial imposition of deadlines.
Courts, it says, may intervene only in cases of “prolonged, unexplained, and inordinate” delay and may then direct the Governor merely to “act”, without dictating the decision. This formulation appears deceptively moderate. But on closer examination, it leaves State governments exactly where they were — burdened with delay, compelled to litigate, and left to navigate constitutional ambiguity without meaningful guidance.
A judgement riddled with contradictions
The verdict proclaims that “Governors cannot keep Bills pending indefinitely,” but immediately strips courts of the tools needed to prevent exactly that. It declares that State governments may approach courts for remedy, but offers no standard (timeline) by which “inordinate” delay may be measured. It eulogizes “constitutional morality,” only to leave unaddressed the “constitutional mischief” that prompted the reference in the first place.
The Bench takes pride in contributing to a “swadeshi foundation” of constitutional interpretation, but the substance of its reasoning reflects neither the text of the Constitution nor its democratic ethos. It is one thing to reject colonial vestiges; it is quite another to replace them with indeterminate discretion that undermines legislative will.
The problem with elastic discretion
Discretion occupies a legitimate space in constitutional governance. But discretion without accountability is a constitutional danger. When the Court says that the “elasticity” of Articles 200 and 201 must be preserved, it ignores the ground reality that such elasticity has been stretched beyond endurance.
Consider the implications:
l A Bill passed unanimously by a State Assembly can be kept in limbo for months or years.
l No one is required to explain the delay.
l The only recourse is costly litigation.
l And even after litigation, the Governor is only required to “act”—not necessarily assent, nor return the Bill promptly.
This is not cooperative federalism. It is constitutional paralysis disguised as propriety.
A political problem, judicially ignored
The Court’s verdict is notable not only for what it says, but for what it refuses to confront. The crisis of gubernatorial delay is not a product of constitutional interpretation but political reality. Governors in opposition-ruled States have repeatedly prevented the legislative process from taking its natural course. Whether in Tamil Nadu, Kerala, Telangana, Punjab, or even in earlier years in Karnataka and Maharashtra, Bills have been kept pending for unconscionably long periods, forcing State governments to return to the Assembly to re-enact the same legislation or to seek judicial intervention. The Court, instead of addressing this systemic malaise, has chosen to treat it as an episodic inconvenience.
The democratic cost of endless litigation
Under the Court’s present opinion, every instance of delay will require the State government to approach the High Court or the Supreme Court to compel a decision. This means:
l diverting public funds to litigation,
l consuming administrative energy, and
l leaving important reforms hostage to judicial calendars.
Is this the constitutional design envisioned by the framers? That the will of the people, expressed through elected representatives, must stand deferred until a court intervenes? There is no greater irony than the fact that the judiciary — charged with protecting democratic values — has inadvertently burdened States with a recurring cycle of litigation to secure what ought to be a routine executive function.
Here, one is reminded of a famous line: “The Constitution is not a mere lawyer’s document.” Yet this opinion risks making governance a mere lawyer’s occupation.
Receding Federalism
By refusing to define “reasonable time,” the Court has ceded vast discretionary space to Governors. This risks converting the office into an active site of political contestation — especially in light of the deviant conduct displayed by several Governors.
The consequence is nothing short of a blow to Indian federalism. The Constitution envisions a Union of States, not a Union over States. When State legislatures — the true custodians of the people’s mandate — are impeded, federalism becomes a mere formality, and the basic structure of the Constitution itself is imperilled.
Navigating the future
Where do we go from here?
Parliament may, if political will exists, introduce a constitutional amendment to prescribe time-limits for granting assent — a reform that has been urged for decades. But anticipating such a measure in the current political climate is, at best, utopian.
State governments must therefore assert their constitutional rights through consistent challenge, public engagement, and democratic pressure. They must not permit discretionary delay to become the new normal. The principle at stake is larger than any individual Bill: it concerns the integrity of the legislative process itself.
A verdict that deepens the crisis
The Supreme Court has now spoken, but it has not settled the matter. By declining to impose timelines and by refusing to endorse deemed assent, the Court has left intact the very ambiguity that fuels gubernatorial overreach.
The opinion claims to restore constitutional balance; instead, it risks undermining it. The Apex Court has written an opinion that says much but resolves little; that warns Governors not to delay but refuses to stop them from doing exactly that and one that extols federalism even as it quietly erodes it.
If the Constitution is indeed “transformative,” as the judgement claims, then it must be transformed in the direction of accountability, not arbitrariness; democracy, not delay; federalism, not centralisation.
A verdict that weakens these principles is not a swadeshi interpretation. It is a swadeshi setback. And the Indian Republic, struggling to retain its democratic character, deserves far better than a judgement that shrinks federalism while celebrating it in prose.
