New Delhi, November 22, 2025 – In a move that has sparked fierce debate among constitutional scholars and opposition leaders, the Supreme Court of India's advisory opinion on a Presidential Reference has been lambasted for upending decades of settled jurisprudence on gubernatorial powers, potentially tilting the scales toward central overreach in India's federal structure.
Delivered unanimously by a five-judge Constitution Bench on November 20, the opinion addresses 14 questions referred by President Droupadi Murmu under Article 143 of the Constitution. The reference stemmed from lingering uncertainties following the Court's April 2025 ruling in State of Tamil Nadu v. Governor of Tamil Nadu, which had imposed timelines on governors for acting on state bills and deemed prolonged delays as automatic assent. This latest pronouncement, the 16th such advisory since the Court's inception, seeks to clarify the contours of executive discretion under Articles 200 and 201, which govern the assent process for bills passed by state legislatures and Parliament.
### Background: A Reference Amid Tensions
The reference arose amid escalating Centre-state frictions, particularly in opposition-ruled states like Tamil Nadu, Kerala, and Punjab, where governors have been accused of stalling legislative agendas through indefinite delays—often dubbed "pocket vetoes." In the Tamil Nadu case, the Court had rebuked the governor for withholding assent to 10 bills for over three years, invoking its extraordinary powers under Article 142 to grant deemed assent and prescribing deadlines: one week for fresh bills, three months for reconsidered ones, and six months for those reserved for the President.
President Murmu's July 2025 reference, comprising 14 pointed queries, questioned the justiciability of gubernatorial actions, the binding nature of ministerial advice, and whether courts could mandate timelines—issues that pitted federal autonomy against constitutional safeguards. Hearings spanned two months, with interventions from attorneys general and state counsel highlighting the high stakes for India's parliamentary democracy.
### The Supreme Court's Stance: Discretion Without Deadlines
In its 200-page opinion, authored by Chief Justice B.R. Gavai, the Bench upheld the reference's maintainability as a "functional" query aimed at institutional clarity, not political expediency. Key holdings include:
Gubernatorial Options Under Article 200: Governors have three choices—assent, withhold and return for reconsideration, or reserve for the President. Crucially, even after a bill is repassed by the legislature, the governor retains the option to reserve it rather than assent, departing from the Tamil Nadu ruling's stricter mandate.
Scope of Discretion: Governors are not invariably bound by the Council of Ministers' aid and advice when exercising Article 200 powers, enjoying limited discretion to protect federal interests or constitutional integrity. This, the Court argued, aligns with the provision's provisos, positioning governors as vigilant sentinels rather than mere rubber stamps.
No Fixed Timelines: Rejecting judicially imposed deadlines, the Bench held that Articles 200 and 201 contain no rigid timelines beyond "as soon as possible" for returns and a six-month window for presidential comments. Guidelines from the Sarkaria and Punchhi Commissions or Home Ministry circulars, while useful for reasonableness, cannot override constitutional text.
Justiciability and Intervention: Core actions under these articles are non-justiciable to preserve separation of powers, as they involve a "dialogic" legislative-executive interplay. However, prolonged, unexplained inaction invites limited judicial scrutiny—a "mandamus" to act promptly—without delving into merits. Deemed assent was firmly ruled out, critiquing the Tamil Nadu order as an overreach of Article 142.
The Court emphasized that these principles apply prospectively, leaving the Tamil Nadu bills' fate intact while aiming to "settle the law" for future disputes.
### A Flawed Reversal? Critics Cry Foul
While the government hailed the verdict as a "restoration of constitutional balance," detractors argue it resurrects an era of gubernatorial mischief, undermining the Westminster model's emphasis on collective ministerial responsibility. Legal expert V. Sudhish Pai, in a scathing *New Indian Express* column, described the opinion as "bristling with faulty propositions" that "cut into the vitals of our constitutional democracy."
Pai's critique centers on three pillars:
1. Erosion of Ministerial Primacy: By carving out discretion under Article 200, the ruling contradicts the landmark Shamsher Singh v. State of Punjab* (1974) precedent, which held that governors, like the President, act on ministerial advice in all but exceptional cases. "This creates unelected parallel power centers," Pai writes, warning of governors as de facto Union proxies in polarized politics.
2. Logical and Textual Gymnastics: Allowing reservation of repassed bills, per Pai, "strains language and perverts logic," ignoring Article 200's plain intent and the non-justiciability of merits while oddly permitting review of delays. He accuses the Bench of selective textualism, sidelining judicial gloss from cases like *Nabam Rebia* (2016) and conventions that bind executives to advice.
3. Neglect of Reasonableness Standards: Dismissing timelines as "judicial fiat" overlooks commissions' recommendations as benchmarks for fair play, potentially enabling indefinite stalls without accountability. "It disregards 75 years of constitutional evolution," Pai contends, likening it to the infamous *ADM Jabalpur* (1976) for prioritizing restraint over rights.
Echoing these concerns, The Wire labeled the ruling a "bad day for the Republic," arguing it reverses hard-won safeguards against executive overreach and enables BJP-led Centre's alleged weaponization of governors since 2014. Senior advocate Abhishek Singhvi, who argued for states, called it a "retreat from federalism," noting the absence of clear criteria for "inordinate delays" leaves ambiguity ripe for abuse.
Opposition voices, including Congress leader Jairam Ramesh, termed it "a green light for constitutional sabotage," urging an all-party meet to revisit gubernatorial appointments.
### Implications for Federalism
As states brace for renewed battles—Kerala alone has 18 pending bills—the verdict could embolden governors in non-BJP bastions, testing the federal compact. Proponents, including Attorney General R. Venkataramani, defend it as upholding "constitutional morality" by curbing judicial overreach. Yet, with the 2026 state polls looming, the opinion risks deepening divides, prompting calls for amendments to Article 200.
Legal circles await whether this advisory—binding in spirit but not law—will invite further references or challenges, underscoring the judiciary's tightrope in an era of institutional strain. As Pai poignantly notes, "No case is ever finally decided until it is reheard."
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