A Constitutional Reset on Governor Assent: The Supreme Court’s opinion in the presidential reference on Articles 200–201 Rejecting indefinite withholding, restoring legislative primacy, but leaves serious constitutional vulnerabilities unresolved
24, Nov 2025 | Tanya Arora
In its significant opinion delivered under Article 143 of the Constitution, a Constitution Bench led by Chief Justice BR Gavai, also comprising Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar, substantially re-clarified the constitutional mechanics of assent to State bills, Governor discretion, and presidential review under Articles 200 and 201. Delivered in response to a Presidential Reference under Article 143, the opinion re-centres federalism, democratic accountability, and the dialogic structure of law making in India’s constitutional design.
At the heart of the Reference were 14 questions touching upon the options available to Governors when presented with Bills, the limits of executive discretion, the permissibility of judicial timelines, the concept of “deemed assent,” and the extent of judicial review over the President and Governor when acting under Articles 200 and 201.
The Court insisted that the issues raised by the President “strike at the root of the continuation of our republican and democratic way, and the Constitution’s federal character.” This reference, the Court said, concerns a “functional” constitutional problem, namely: persistent deadlock between elected State governments and Governors over legislative assent.
I. Re-Reading Article 200: No power of indefinite withholding
The Court unequivocally held that Article 200 does not permit a Governor to withhold assent simpliciter. Withholding, the Court emphasised, is inextricably linked with the obligation to return the Bill to the Legislature with comments. Treating “withhold assent” as a standalone power would allow the Governor to effectively veto legislation by inaction — a result the Court described as antithetical to federalism.
The bench foregrounded the text of the first proviso to Article 200, observing that it explicitly curtails only one of the three options available to the Governor — the option to withhold assent — once a Bill is repassed by the House:
“The text of the first proviso to Article 200 through its phrasing “shall not withhold assent therefrom” clearly indicates that what was sought to be curtailed among the three options, was only the option to ‘withhold’. We have already held that the first proviso conditions the verb ‘withhold’, to mean withhold and return to the Legislature. The first proviso cannot be read in a manner so as to condition the option of the Governor to reserve the Bill for President’s consideration as well.” (Para 99)
This reading is transformative. It anchors the proviso as a constitutional safeguard ensuring meaningful legislative–executive dialogue, not an additional, fourth option. The Court rejected the Union Government’s contention that returning the Bill is an independent option, insisting instead that withholding and returning are a composite act.
Money bills and constitutional logic
A particularly incisive part of the reasoning is the Court’s rejection of the Union’s argument on the Governor’s independent power to withhold. The Court explained that if a “simpliciter” power to withhold existed, it would extend even to Money Bills, which the Governor is constitutionally prohibited from returning. This, the bench held, would “defy constitutional logic.”
The opinion stressed that the choice must favour a “dialogic process,” which encourages institutional comity and deliberation, rather than an interpretation that enables “obstructionism” by the Governor.
II. The Governor’s Discretion: Limited but real
While affirming that the Governor normally acts on the aid and advice of the Council of Ministers, the Court held that Article 200 constitutes an exception. The presence of the phrase “in his opinion” in the second proviso creates a narrow zone of discretion for returning or reserving Bills.
Yet, the Court sharply differentiated this discretion from unreviewable political authority. The discretion must operate within constitutional boundaries, guided by the structure of cooperative federalism.
III. Reservation After Re-Passage: Governor retains the option
Rejecting the contrary position taken in the Tamil Nadu Governor case, the 5-judge bench held that a Governor may reserve a Bill even after it has been re-passed by the Legislature following its initial return. This becomes critical where the Legislature modifies the Bill in ways that implicate federal or inter-State concerns.
The Court articulated this function as one of constitutional vigilance:
“Since it is the Governor who considers the Bill in its amended form, and is able to compare it to the earlier version passed by the Legislature, it is his constitutional function to decide whether the Bill ought to be assented to, or if its amended form affects such inter-state, or federal aspect of the country, requiring the attention of the President.” (Para 100)
This reasoning defends cooperative federalism against strategic legislative manoeuvres while preventing governor obstruction of ordinary legislative processes.
IV. Judicial review, inaction, and the limits of Article 361
The Court provided a nuanced delineation of the scope of judicial review over the Governor’s actions.
The bar on merit review vs. exception for inaction
The general rule is that the discharge of the Governor’s functions under Article 200 is not justiciable; the Court cannot enter into a “merit-review” of the decision itself (e.g., why the Bill was returned).
However, the Court carved out a limited exception for cases of “glaring circumstance of inaction that is prolonged, unexplained and indefinite.” In such instances, the Court can exercise judicial review to issue a limited mandamus directing the Governor to discharge his functions within a reasonable time, without commenting on the outcome (assent or reservation).
Article 361 and the office of the governor
Addressing the scope of Article 361 (Protection of President and Governors), the Court clarified that while the Article provides an absolute bar against judicial proceedings concerning the Governor’s personal acts; it cannot entirely immunize the office of the Governor from constitutional oversight.
“Article 361 of the Constitution is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings. However, it cannot be relied upon to negate the limited scope of judicial review that this Court is empowered to exercise in situations of prolonged inaction by the Governor under Article 200. It is clarified that while the Governor continues to enjoy personal immunity, the constitutional office of the Governor is subject to the jurisdiction of this court.” (Para 165.4)
Non-justiciability of bills
The Court reiterated the established principle that the decisions of the Governor and the President under Articles 200 and 201 are not justiciable at a stage anterior (before) the law comes into force. The contents of a Bill cannot be adjudicated by the courts until the legislative process is complete and the Bill becomes an Act.
V. No judicial timelines, no “deemed assent”
The Opinion delivered a firm constitutional check on the Judiciary’s power to intrude into the executive and legislative domains by rejecting the idea of prescribing time limits.
Upholding constitutional elasticity
The bench held that the absence of a time limit in Articles 200 and 201 is a feature of the Constitution, not a bug. It provides a necessary “sense of elasticity” for constitutional authorities to navigate complex legislative matters in a diverse federal country.
“The imposition of timelines would be strictly contrary to this elasticity that the Constitution so carefully preserves.” (Para 115)
For this reason, the Court held that it is inappropriate to judicially prescribe a timeline for the Governor or the President, thereby protecting the operational space of the executive branch.
The unconstitutionality of ‘deemed assent’
The most potent argument against judicial overreach was the definitive rejection of the doctrine of ‘deemed assent,’ which was a major point of confusion post-the Tamil Nadu Governor case. The Court explicitly stated that declaring a Bill law simply because a timeline was breached is a violation of the Separation of Powers and an abuse of Article 142.
“We have no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution.” (Para 128)
The Court confirmed that a State law cannot be in force without the Governor’s assent, and the Governor’s legislative role “cannot be supplanted by another Constitutional authority.”
VI. Article 201: Presidential discretion mirrors governor discretion
Applying similar reasoning to Article 201, the Court held:
- Presidential discretion under Article 201 is non-justiciable.
- No timelines may be imposed on the President.
- The President is not required to seek judicial opinion each time a Bill is reserved.
- The President may, in cases of uncertainty, invoke Article 143 — but this is not mandatory.
The Court thus restored symmetry in the constitutional design of executive assent.
VII. Maintainability of the reference and the Tamil Nadu judgment
The States argued that the Reference was an “appeal in disguise” against the Tamil Nadu Governor case. The Court rejected this argument. It underscored:
- Article 143 is a constitutional safety valve, allowing the President to seek clarity where judicial decisions create systemic uncertainty.
- Some conclusions in the Tamil Nadu judgment were in “variance with earlier decisions,” creating a state of doubt about foundational constitutional processes.
- The reference concerns day-to-day functioning of constitutional authorities, unlike previous references.
Invoking In re Special Courts Bill and the 2G Reference, the Court reiterated that responding to a reference may include clarifying, explaining, or even overruling precedent if necessary for constitutional coherence.
VIII. Dialogic constitutionalism as a structural principle
Perhaps the most significant part of the opinion is the Court’s articulation of dialogic constitutionalism as the governing principle under Articles 200 and 201. The Court rejected a mechanical “checks-and-balances” model in favour of an iterative, conversational relationship between the Legislature, Governor, and Union.
In its opinion, the Court observed:
“A dialogic process, which has the potential to understand and reflect on conflicting or opposing perspectives, to reconcile and to move forward in a constructive manner, is an equally potent check-and-balance system that the Constitution has prescribed. Once this perspective is grasped, the persons who occupy various constitutional offices or institutions will also do well to ingrain in themselves that dialogue, reconciliation and balance, and not obstructionism is the essence of constitutionalism that we practice in this Republic.” (Para 64)
This articulation transforms how we conceptualise federal dynamics. The emphasis is not on vetoes but on structured interaction, mutual accountability, and constitutional good faith.
Summary of answers to presidential queries
The 14 queries posed by the President under Article 143 were addressed as follows:
| Query No. | Subject Matter | Supreme Court’s Opinion (Answer) |
| 1 | Constitutional options before a Governor under Article 200. | Three options: Assent, Withhold (which must be accompanied by returning the Bill), or Reserve for the President. The first proviso qualifies the option of withholding. |
| 2 | Is the Governor bound by the aid and advice of the Council of Ministers under Article 200? | Ordinarily, yes, but the Governor exercises discretion in deciding to return the Bill or reserve it, as indicated by the phrase “in his opinion.” |
| 3 | Is the exercise of constitutional discretion by the Governor under Article 200 justiciable? | Not justiciable for merit-review. However, a limited mandamus can be issued in cases of “prolonged, unexplained and indefinite” inaction. |
| 4 | Is Article 361 an absolute bar to judicial review of the Governor’s actions under Article 200? | No. While personal immunity is an absolute bar, the office of the Governor is subject to limited judicial review for prolonged inaction. |
| 5 & 7 | Can timelines be imposed by judicial orders for the exercise of powers by the Governor (Q.5) and the President (Q.7)? | No. Imposing timelines is contrary to the constitutional elasticity preserved in Articles 200 and 201. |
| 6 | Is the exercise of constitutional discretion by the President under Article 201 justiciable? | No. For similar reasoning as held for the Governor, the President’s assent is not justiciable for merit-review. |
| 8 | Is the President required to seek advice of the Supreme Court under Article 143 when a Bill is reserved? | No. The subjective satisfaction of the President is sufficient. Reference is optional if there is a lack of clarity. |
| 9 | Are the decisions of the Governor and President under Articles 200/201 justiciable before the law comes into force? | No. Bills can be challenged only after they become law. |
| 10 & 13 | Can the powers of the President/Governor be substituted, or can the Court use Article 142 to declare ‘deemed assent’? | No. The concept of “deemed assent” is unconstitutional. Article 142 cannot be used to substitute executive functions. |
| 11 | Is a law made without the assent of the Governor a law in force? | No. There is no question of a law coming into force without the Governor’s assent. |
| 12 | Mandatory nature of Article 145(3) for five-judge benches. | Returned unanswered as irrelevant to the functional nature of the reference. |
| 14 | Does the Constitution bar other jurisdictions of the Supreme Court to resolve Union-State disputes besides Article 131? | Not answered as found irrelevant to the functional nature of the reference. |
Where the opinion falls short
While the Supreme Court’s opinion undeniably brings clarity to the constitutional scheme of assent, it is not immune from critique. In fact, several aspects of the opinion raise serious concerns about practical enforceability, institutional realism, and the Court’s own conception of constitutional federalism.
1. The court’s rejection of timelines leaves a real vacuum
The Court’s insistence that timelines cannot be judicially prescribed because Articles 200 and 201 contemplate “elasticity” may be doctrinally defensible, but it leaves a pressing institutional problem unresolved.
In recent years, several Governors have delayed Bills for 12–18 months, creating deliberate legislative paralysis. The Court recognises this reality — it even describes such conduct as capable of “frustrating the legislative process” — but then offers only a limited mandamus, a remedy whose effectiveness depends on judicial willingness to intervene case by case.
This raises the question: Is elastic constitutional design being used to justify an increasingly inflexible political obstruction?
The Court’s refusal to articulate even outer constitutional boundaries (e.g., “reasonable time” standards, structured guidelines, presumptive limits) risks normalising governor delay as a political weapon.
2. The decision overestimates the governor’s neutrality
The opinion rests heavily on the idea that the Governor engages in a “constitutional conversation” with the Legislature. This idealised model presumes constitutional good faith — an assumption that does not align with contemporary political realities.
Governors today often act:
- as agents of the Union Government,
- as political veto points,
- with partisan motivations rather than deliberative ones.
By retaining wide discretion after re-passage (including the power to reserve), the Court may have inadvertently reinforced avenues of political interference rather than constrained them.
3. The court rejects deemed assent but offers no functional alternative
The Court is doctrinally correct that deemed assent couldn’t be judicially manufactured.
But rejecting deemed assent without creating:
- temporal guardrails,
- presumptive timelines,
- structured standards for delay, or
- constitutional consequences for non-action means the status quo of indefinite executive stalling may remain substantially unchanged.
The Court’s solution — a “limited mandamus” in cases of “prolonged and unexplained inaction” — is conceptually elegant but practically weak. Governors can simply supply some explanation for delay to forestall judicial review.
4. The Opinion Avoids Confronting the Hard Question: What happens if the governor still does not act?
Even after a mandamus directing the Governor to “decide within a reasonable period,” the Court does not address:
- What if the Governor still does not act?
- Can the Court enforce compliance?
- Can non-compliance itself trigger constitutional consequences?
By stopping short of answering these questions, the Court leaves open the possibility that constitutional commands may remain judicially unenforceable.
5. The court’s “dialogic federalism” is normatively attractive, but descriptively unrealistic
The opinion’s philosophical turn toward “dialogue, reconciliation and balance” is attractive and intellectually sophisticated. However, Indian federalism today is marked by:
- partisan conflict,
- aggressive centralisation,
- Governors acting as political brakes on opposition-ruled States,
- selective obstruction of specific policy agendas.
In such an environment, dialogic federalism risks becoming constitutional romanticism, a theoretical model with limited grounding in empirical governance.
6. The decision leaves the legislature ultimately dependent on executive grace
Even after clarifying the options, the Court affirms that:
- the Governor has discretion to reserve Bills (even after repassage),
- the President’s discretion under Article 201 is non-justiciable,
- and no timelines apply at either level.
This means a State law may still be caught in executive limbo between Raj Bhavan and Rashtrapati Bhavan for months or years, with no remedy except discretionary judicial nudges.
The structure therefore remains executive-heavy and legislature-vulnerable.
Conclusion
The Court’s opinion is doctrinally coherent, textually grounded, and institutionally respectful of separation of powers. It restores structural clarity and corrects errors in the Tamil Nadu Governor decision. Its articulation of dialogic federalism is aspirational and constitutionally rich.
However, the opinion also reflects a profound judicial reluctance to discipline constitutional actors who act in bad faith. By declining to set timelines, refusing to articulate enforceable standards, and preserving a broad zone of discretion for Governors and the President, the Court leaves significant room for political misuse of constitutional offices.
In effect, the opinion clarifies the law but does not fully address the practical crisis of governor obstruction that sparked the reference itself. It upholds constitutional ideals but leaves unresolved the very dysfunction that compelled the President to invoke Article 143.
The opinion thus represents a structural clarification without structural correction — a doctrinal victory, but an incomplete solution to a deepening constitutional tension between democratic mandates and executive gatekeeping.
The complete opinion may be read below.
Image Courtesy: courtbook.in
Related:
