Supreme Court's Advisory Opinion: Redefining Federalism and Legislative Powers

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The Supreme Court has issued a significant advisory opinion under Article 143 of the Constitution, responding to a Presidential reference triggered by a two-judge Bench judgment from April 2025 related to delays in assent to State Bills.

Background to the Presidential Reference

The Presidential reference arose due to the Supreme Court’s April 2025 judgment in State of Tamil Nadu vs. Governor of Tamil Nadu, which:

• Mandated a three-month timeline for Governors and the President to act on Bills,
• Declared such decisions judicially reviewable,
• Exercised Article 142 powers to grant “deemed assent” to several pending Tamil Nadu Bills.

This ruling generated constitutional uncertainty, prompting the Union government to seek clarification on:

• Whether courts can prescribe timelines,
• Whether presidential inaction is justiciable,
• Whether the Supreme Court’s Article 142 powers can override constitutional provisions.

Scope of Questions Raised in the Reference

The reference placed 14 constitutional questions before a Constitution Bench, primarily relating to:

• Interpretation of Article 200 and Article 201 regarding assent to State Bills,
• Whether courts can intervene before a Bill becomes law,
• The justiciability of delays,
• The permissible boundaries of Article 142.

These questions went to the heart of India’s federal structure and the functional relationship among State legislatures, Governors, and the Union.

Key Takeaways from the Supreme Court’s Advisory Opinion

The five-judge Bench delivered a comprehensive opinion, which reshapes constitutional understanding on several fronts.

Governor’s Options Under Article 200

The Court clarified that a Governor has three constitutionally recognized choices when presented with a Bill:

• Assent,
• Reserve the Bill for Presidential consideration,
• Withhold assent and return the Bill to the legislature with observations.

These options are explicitly grounded in the constitutional text.

Discretion of the Governor

The Court held that the Governor enjoys discretion in choosing among these options and is not bound by the aid and advice of the Council of Ministers regarding assent-related decisions. This interpretation marks a significant shift from earlier decisions such as Shamsher Singh (1974) and Nabam Rebia (2016), which emphasized the primacy of ministerial advice.

Limited Justiciability

Governor’s actions under Article 200 are generally not justiciable; however, in cases of “glaring prolonged and unexplained inaction,” courts may issue a limited mandamus directing the Governor to act. Courts cannot review the validity of the Governor/President’s decision before a Bill becomes law.

No Judicial Timelines

A key reversal of the April 2025 judgment: the Court held that in the absence of constitutional timelines, the judiciary cannot prescribe time limits for Governors or the President to act on Bills.

No ‘Deemed Assent’

The Court strongly rejected the concept of “deemed assent,” holding that the judiciary cannot substitute executive authority through Article 142. Assent-related decisions belong exclusively to the Governor or President.

Issues Arising from the Opinion

Potential undermining of legislative intent is a concern. The Court’s recognition of wide gubernatorial discretion contradicts earlier judicial positions and expert committee recommendations. The Sarkaria Commission (1987) held that reserving Bills for the President should occur rarely, and only in cases of clear unconstitutionality. Earlier Supreme Court cases insisted that Governors act on ministerial advice, not independent discretion. The current opinion risks allowing Governors to delay or derail the legislative agenda of elected State governments.

Concerns over lack of timelines have also been raised. The Punchhi Commission (2010) recommended a six-month limit for gubernatorial decisions. The Supreme Court itself had earlier set non-textual timelines (e.g., in K.M. Singh, three months for Speakers to decide disqualification petitions). Thus, critics argue that judicially crafted timelines can be constitutionally permissible when required to uphold democratic functioning. The current advisory opinion rejects such purposive interpretation.

Way Forward

While the Governor represents the Union and the ideal of national unity, federalism is a basic structure of the Constitution. Moving forward, it is vital that:

• Governors must exercise constitutional powers with responsible urgency,
• The Centre must ensure the office is not used to thwart State governments,
• Judicial oversight must remain available to prevent constitutional paralysis while respecting the separation of powers.