In Re : Assent, Withholding Or Reservation Of Bills By The Governor And The President Of India vs. NaN

REPORTABLE

IN THE SUPREME COURT OF INDIA
2025 INSC 1333
ADVISORY JURISDICTION

SPECIAL REFERENCE NO. 1 of 2025
IN RE: ASSENT, WITHHOLDING OR RESERVATION OF BILLS
BY THE GOVERNOR AND THE PRESIDENT OF INDIA.

OPINION OF THE COURT
For clarity and coherent exposition of the issues under consideration, the
opinion of the Court on the Presidential Reference is set out in the following
parts:-
Table of Contents
I. Presidential Reference No. 1 of 2025. ............................................................. 2
II. Proceedings Before This Court. ....................................................................... 5
III. Preliminary submissions on the maintainability. ............................................... 7
A. Significance of this Reference ............................................................................. 9
B. Objections on malafide and form of reference ................................................... 14
................................... 16
C. Objections on the basis of the Judgment in Cauvery (2)
D. Re : The Court’s power to decline answering a question referred ...................... 22
.................. 24
IV. Values that should govern and guide Constitutional Interpretation
V. Constitutional options before the Governor upon the presentation of a Bill ..... 25
................... 25
A. Role of the Governor under Chapter III, Part VI of the Constitution
B. Article 200: the “what” and “how” of Governor’s options .................................... 28
C. Competing arguments on the options available to the Governor under Articles 200
and 201 ............................................................................................................. 29
D. Analysis of the decisions of this Court in State of Punjab, Kameshwar, Valluri and
Hoechst ............................................................................................................ 31
E. Construction of the plain text of the Constitution to determine the options available
for the Governor under Article 200 .................................................................... 32
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2025.11.20
14:08:01 IST
Reason:
F. Interpretation and Construction of Article 200 in the context of Federalism as a
........................................................................ 40
basic feature of the Constitution
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VI. Whether the Governor is bound by the aid and advice tendered by the Council of
Ministers while exercising all the options available with him when a Bill is
presented before him under Article 200 of the Constitution of India ................ 46

VII. Options of the Governor under Article 200 after the Legislative Assembly
. 67
presents the Bill to the Governor after reconsideration under the first proviso
VIII. Re : Questions 5, 7, 10 and 11 relating to the prescription of time limits on the
Governor and the President for exercising their discretion under Articles 200 and
............................................................ 70
201, and the issue of deemed assent
IX. Justiciability of the functions exercised by the Governor and the President under
Article 200 and Article 201 respectively ......................................................... 85
............................................................................. 99
A. Limits of judicial intervention
X. Article 361 and its interplay with judicial review of actions under Article 200.. 103
XI. Opinion of the Court on the Presidential Reference. .................................... 108

I. Presidential Reference No. 1 of 2025.
1. In exercise of powers conferred under Article 143(1) of the Constitution
th
of India, the President of India has on 13 May, 2025 referred fourteen
questions relating to interpretation of powers of the Governor under Articles 200
and 201 along with certain ancillary questions for opinion of the Supreme Court.
The context that occasioned the reference, followed by the questions are as
follows;
“PRESIDENT
REPUBLIC OF INDIA

WHEREAS Article 200 of the Constitution of India prescribes the
powers of the Governor and the procedure to be followed while
assenting to Bills, withholding assent to Bills and reserving a Bill for
the consideration of the President;

WHEREAS Article 200 of the Constitution of India does not stipulate
any time frame upon the Governor for the exercise of constitutional
options under Article 200;

Page 2 of 111


WHEREAS Article 201 of the Constitution of India prescribes the
powers of the President and the procedure to be followed while
assenting to Bills or withholding assent therefrom;

WHEREAS Article 201 of the Constitution of India does not stipulate
any time frame or procedure to be followed by the President for the
exercise of constitutional options under Article 201;

WHEREAS the Constitution of India enlists numerous instances
where the assent of the President has to be obtained before a
legislation can take effect in the State;

WHEREAS the exercise of constitutional discretion by the Governor
and the President under Article 200 and Article 201 of the
Constitution of India, respectively are essentially governed by
polycentric considerations, inter alia being federalism, uniformity of
laws, integrity and security of the nation, doctrine of separation of
powers;

WHEREAS there are conflicting judgments of the Supreme Court
as to whether the assent of the President of India under Article 201
of the Constitution of India is justiciable or, not;

WHEREAS the States are frequently approaching the Supreme
Court of India invoking Article 32 [and not Article 131] of the
Constitution of India raising issues which by their very nature are
federal issues involving interpretation of, inter alia, the Constitution
of India;

WHEREAS the contours and scope of provisions contained in
Article 142 of the Constitution of India in context of issues which are
occupied by either constitutional provisions or statutory provisions
also needs an opinion of the Supreme Court of India;

WHEREAS the concept of a deemed assent of the President and
the Governor is alien to the constitutional scheme and
fundamentally circumscribes the power of the President and the
Governor;

WHEREAS in view of what is herein before stated and the present
prevailing circumstances, it appears to me that the following
questions of the law have arisen and are of such nature and of such
public importance that it is expedient to obtain the opinion of the
Supreme Court of India thereon,

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NOW, THEREFORE, in exercise of the powers conferred upon me
by clause (1) of Article 143 of the Constitution of India, I, Droupadi
Murmu President of India, hereby refer the following questions to
the Supreme Court of India for consideration and to report its
opinion thereon, namely:-

1. What are the constitutional options before a Governor when
a Bill is presented to him under Article 200 of the Constitution
of India?

2. Is the Governor bound by the aid & advice tendered by the
Council of Ministers while exercising all the options available
with him when a Bill is presented before him under Article 200
of the Constitution of India?

3. Is the exercise of constitutional discretion by the Governor
under Article 200 of the Constitution of India justiciable?

4. Is Article 361 of the Constitution of India an absolute bar to
the judicial review in relation to the actions of a Governor under
Article 200 of the Constitution of India?

5. In the absence of a constitutionally prescribed time limit, and
the manner of exercise of powers by the Governor, can
timelines be imposed and the manner of exercise be
prescribed through judicial orders for the exercise of all powers
under Article 200 of the Constitution of India by the Governor?

6. Is the exercise of constitutional discretion by the President
under Article 201 of the Constitution of India justiciable?

7. In the absence of a constitutionally prescribed timeline and
the manner of exercise of powers by the President, can
timelines be imposed and the manner of exercise be
prescribed through judicial orders for the exercise of discretion
by the President under Article 201 of the Constitution of India?

8. In light of the constitutional scheme governing the powers
of the President, is the President required to seek advice of the
Supreme Court by way of a reference under Article 143 of the
Constitution of India and take the opinion of the Supreme
Court when the Governor reserves a Bill for the President's
assent or otherwise?

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9. Are the decisions of the Governor and the President under
Article 200 and Article 201 of the Constitution of India,
respectively, justiciable at a stage anterior into the law coming
into force? Is it permissible for the Courts to undertake judicial
adjudication over the contents of a Bill, in any manner, before
it becomes law?

10. Can the exercise of constitutional powers and the orders
of/by the President/Governor be substituted in any manner
under Article 142 of the Constitution of India?

11. Is a law made by the State legislature a law in force without
the assent of the Governor granted under Article 200 of the
Constitution of India?

12. In view of the proviso to Article 145(3) of the Constitution
of India, is it not mandatory for any bench of this Hon'ble Court
to first decide as to whether the question involved in the
proceedings before it is of such a nature which involves
substantial questions of law as to the interpretation of
constitution and to refer it to a bench of minimum five Judges?

13. Do the powers of the Supreme Court under Article 142 of
the Constitution of India limited to matters of procedural law or
Article 142 of the Constitution of India extends to issuing
directions /passing orders which are contrary to or inconsistent
with existing substantive or procedural provisions of the
Constitution or law in force?

14. Does the Constitution bar any other jurisdiction of the
Supreme Court to resolve disputes between the Union
Government and the State Governments except by way of a
suit under Article 131 of the Constitution of India?”

II. Proceedings Before This Court.
2. As per the orders of the Chief Justice of India, the reference was placed
before the Constitution Bench following the procedure prescribed under Order
XXXVII of the Supreme Court Rules on 22.07.2025. Learned Solicitor General
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appeared for the Union of India, and we requested the Attorney General to
assist the Court.
3. Formal notices were issued to States and Union Territories and they were
asked to file written submissions. Pursuant to the filing of these submissions,
hearing commenced on 19.08.2025 with the Attorney General addressed this
Court on the scope of the reference. The Solicitor General who made
exhaustive submissions on behalf of the Union of India. He was followed by Mr.
Neeraj Kishan Kaul for the State of M.P., Mr. Harish Salve for the State of
Maharashtra, Mr. Maninder Singh for the State of Rajasthan, Mr. K.M. Nataraj,
ASG for the States of Orissa and Uttar Pradesh, Mr. Vikramjit Banerjee, ASG
for the State of Goa, Mr. Vinay Navare for the Union Territory of Puducherry
and Mr. Guru Krishna Kumar for the State of Haryana.
4. Dr. Abhishek Manu Singhvi, Sr. Advocate made comprehensive
submissions on behalf of the State of Tamil Nadu. He was followed by Mr. K.K.
Venugopal for the State of Kerala, Mr. Kapil Sibal for the State of West Bengal,
Mr. Gopal Subramanium for the State of Karnataka, Mr. Anand Sharma for the
State of Himachal Pradesh, Mr. Arvind Datar for the State of Punjab, and Mr. S.
Niranjan Reddy for the State of Telangana. Advocate General for the State of
Meghalaya, Mr. Amit Kumar assisted us. Mr. Gopal Sankaranarayanan, Sr.
Advocate, Ms. Avani Bansal, Dr. Vivek Sharma, Mr. Sudiep Shrivastava
appeared on behalf of the intervenors.
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III. Preliminary submissions on the maintainability.
5. Many of the parties opposing the present reference advanced distinct and
nuanced submissions on the substantive questions referred but were
unanimous in their opposition to the maintainability of the present reference
itself. It was argued that the reference was not maintainable, and ought to be
declined and returned unanswered in entirety .
6. The main thrust of the argument on maintainability was that the powers
of the President to refer questions under Article 143 is contingent on the fact
that a ‘question of law or fact has arisen, or is likely to arise ’, which is not the
case presently, as these issues have been answered conclusively by the
1
Division Bench in State of Tamil Nadu v. Governor of Tamil Nadu ( hereinafter
‘State of Tamil Nadu’ ), which in turn is binding under Article 141 of the
Constitution (unlike an opinion tendered under Article 143 in exercise of
advisory jurisdiction). Counsel appearing for the parties opposing the reference
laboured extensively on the submission that the Presidential Reference was an
appeal, or review in disguise. They submitted that the reference seeks to raise
such questions which are already decided by this Court in earlier decisions (not
limited to State of Tamil Nadu ) and thus, is an attempt to disturb the findings,
and nullify the effect of the judgment already rendered in State of Tamil Nadu
(supra). It was argued therefore, that this presidential reference was a malafide
attempt by the Central Government to sidestep the decision of this Court, by

1
2025 INSC 481; (2025) 8 SCC 1.
Page 7 of 111


invoking Article 143 jurisdiction to essentially seek an appeal of the binding
decision already passed, without the Governor in fact filing a review, or curative
petition, in relation to the State of Tamil Nadu (supra) decision.
7. Extensive reliance was placed on the decision of this Court in Cauvery
2
Water Disputes Tribunal, in Re: (hereinafter ‘Cauvery (2)’). It was also
suggested that in exercise of advisory jurisdiction, earlier decisions of this court
cannot be overruled. It was further argued that the present reference seeks
formulation of general and omnibus standards for constitutional authorities to
follow, in the absence of any factual matrix warranting the same. Reliance was
3
placed on In Re: Special Courts Bill 1978 , wherein this Court had held that a
reference must be refused when it is vague, hypothetical, speculative, general
and omnibus.
8. In view of these submissions, we find that the preliminary objections on
maintainability raised by these parties warrant the careful consideration of this
Court before any discussion on the questions referred by the Hon’ble President.
In doing so, it is necessary to first lay out the scope of advisory jurisdiction of
this Court under Article 143, and the effect of an opinion tendered while
exercising such jurisdiction.

2
1991 INSC 304; 1993 Supp. (1) SCC 96 (2) [5JB].
3
1978 INSC 249; (1979) 1 SCC 380, paragraphs 21-26.
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A. Significance of this Reference
9. There have previously been 15 presidential references made under
Article 143(1) of the Constitution of India. Each reference was made in a specific
factual matrix, that had arisen and necessitated the advice of the Supreme
Court. Pertinently, almost each of these references under Article 143(1) was the
subject of challenge on the ground of maintainability. However, barring the
Special Reference of 1993 which was returned unanswered on the ground that
4
it did not serve any constitutional purpose , all references have been duly
answered – in part, or in full – by this Court. An illustrative list of the references
made so far under Article 143(1), and the subject matter they dealt with, are
mentioned below:
5
(i) Delhi Laws Act, 1912, In Re – on the power to delegate legislative
power to other organs of the state machinery.
6
(ii) Kerala Education Bill, 1957, In Re – constitutional validity of a Bill
in relation to Articles 29 and 30 of the Constitution.
7
(iii) Berubari Union (I), In Re – whether an Act under Article 3 by
Parliament was sufficient to implement a bilateral agreement
between India and Pakistan concerning cession of some parts of
territory.

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8
(iv) Sea Customs Act, S. 20(2), In Re – validity of a draft Bill
concerning imposition and authorisation of taxes by the Central
Government, and whether it was exempted under Article 289.
9
(v) Powers, Privileges and Immunities of State Legislatures, In Re
(hereinafter referred to as ‘Keshav Singh’) – a peculiar situation
between the State Legislature in Uttar Pradesh and the High Court
of Allahabad, which gave rise to questions relating to the validity of
initiation of contempt by the State Legislature against High Court
judges.
10
(vi) Presidential Poll, In Re – interpretation of Articles 56, 62, 70, and
71 with regards to the election of the President.
11
(vii) Special Courts Bill, 1978, In Re – consideration of a Bill for
constitution of special courts to entertain cases relating to offences
committed by individuals holding high political officers, during
Emergency.
12
(viii) Cauvery Water Disputes Tribunal, In Re – whether one party
could override implementation of an interim order passed by the
Water Dispute Tribunal, by way of an ordinance.
(ix) Special Reference No. 1 of 1993 (Ram Janma Bhumi-Babri Masjid
13
matter) – advice sought on the factual issue of whether there

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existed a Hindu temple or Babri Masjid on the disputed land (this
was returned unanswered) – see M. Ismail Faruqui (Dr) v. Union of
14
India .
15
(x) Special Reference No. 1 of 1998, Re – issue of appointment of
judges, and the binding effect of the recommendation of the Chief
Justice which was not agreeable to the Government, at that time.
(xi) Jammu and Kashmir Grant of Permit for Resettlement in (or
16
Permanent Return to) the State Bill, 1980, In Re – relating to
return and permanent resettlement of people who left Jammu and
Kashmir between 1947-1954, which was returned unanswered due
to efflux of time.
17
(xii) S pecial Reference No. 1 of 2001, In Re – validity of a State law
regulating use and distribution of natural gas and liquefied
petroleum gas, when the subject matter fell within the Union List.
(xiii) Special Reference No. 1 of 2002, In Re (Gujarat Assembly Election
18
matter) - obligation of the Election Commission to conduct
elections, when the state assembly is dissolved in haste and the
interplay of Articles 174 and 324, if any.
(xiv) Natural Resources Allocation, In Re, Special Reference No. 1 of
19
2012 – in relation to the judgment in the 2G spectrum case

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[ Centre for Public Interest Litigation v. Union of India (2012) 3 SCC
1].
20
(xv) Punjab Termination of Agreement Act, 2004, In Re – the
constitutional validity of the Punjab Termination of Agreement Act,
which sought to overcome the judicially directed implementation of
sharing of natural resources between Punjab, Haryana and
Rajasthan, in light of their water dispute.
10. None of these references have related to constitutional mechanics - the
day to day functioning of constitutional functionaries and the interplay between
various functionaries (the State Legislature, Governor, and the President), with
regards to enactment of legislation. This is, therefore, a ‘ functional reference ’,
which is fundamentally of a different nature as compared to the earlier
references under Article 143 – as it strikes at the root of the continuation of our
republican and democratic way, and the Constitution’s federal character. The
nature of this reference, therefore, places a duty on this Court, to answer some,
if not all, the questions so referred.
11. It is but apparent that the issues raised in the present reference have
arisen in the aftermath of the decision rendered by a 2-judge bench of this Court
in State of Tamil Nadu (supra) on 08.04.2025. A state of doubt, or confusion,
has arisen in relation to various issues concluded by this Court in State of Tamil
Nadu (supra), some of which were considered and decided in other decisions

20
2016 INSC 1018 ; (2017) 1 SCC 121.
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prior to it (many of which by benches of larger strength), including: the options
21
before a Governor under Article 200 , the prescription of time limits under
22
Articles 200 and 201 , whether the Governor is bound by the aid and advice of
23
the Council of Ministers when exercising such decision under Article 200 , the
24
justiciability of the decision made by the Governor and President under these
Articles, whether Bills can be passed and enacted as law by way of ‘deemed
assent’, to name a few. A perusal of the decision of this Court in State of Tamil
Nadu (supra) , would reveal that at least some of the conclusions are in variance
with earlier decisions, although the decision in State of Tamil Nadu (supra) ,
seeks to reconcile this departure from earlier precedents. In this context, this
Court finds that an authoritative opinion of this Court is mandated since the law
on the functions of the Governor and the President under Article 200 and Article
201, cannot be left in a state of confusion, as it would impede smooth
functioning of the Constitution. It is clear that in the present circumstances, there
exists substantial satisfaction of the Hon’ble President, that these are questions
of law that have arisen, or are likely to arise, which are of public importance,
which necessitate that an opinion be sought from this Court– as she is
empowered to do so, under Article 143(1) of the Constitution. This Court finds

21
Earlier considered in a catena of judgments, including - State of Bihar v. Kameshwar Singh , 1952
INSC 28; (1952) 1 SCC 528 [5-Judge bench]; Union of India v. Valluri Basavaiah Chowdhary , 1979
INSC 93; (1979) 3 SCC 324 [5-Judge bench]; Purushothaman Nambudiri v. State of Kerala, 1961 INSC
331; 1961 SCC OnLine SC 361 [5-Judge bench]; Hoechest Pharmaceutricals Ltd. v. State of Bihar,
1983 INSC 61; (1983) 4 SCC 45 [3-Judge Bench]; State of Punjab v. Governor of Punjab , 2023 INSC
1017; (2024) 1 SCC 384 [3-Judge Bench].
22
Purushothaman Nambudiri v. State of Kerala, 1961 INSC 331; 1961 SCC OnLine SC 361 [5JB].
23
Nabam Rebia & Bamang Felix v. Arunachal Pradesh Legislative Assembly , 2016 INSC 526; (2016)
8 SCC 1; Samsher Singh v. State of Punjab , 1974 INSC 154; (1974) 2 SCC 831; etc.
24
Hoechest Pharmaceutricals Ltd. v. State of Bihar, 1983 INSC 61; (1983) 4 SCC 45; Kaiser-I-Hind
(P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., 2002 INSC 406; (2002) 8 SCC 182.
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that it is an institutional responsibility , to tender its opinion on this functional
reference sought by the highest constitutional functionary of the country.
12. The unique nature of the advisory jurisdiction of this Court lies in its
institutional character . The power to interpret the Constitution, nay, the duty to
interpret it for the benefit of the Republic and its constituents, is exclusively
vested with the judiciary. This Court is endowed with the institutional capacity
and the constitutional duty to answer references that will ensure that the
Constitution is nurtured and worked for the benefit of the people. The exercise
of this advisory function is a constitutional dialogue between the Executive and
the Judiciary. The Court cannot shirk away from its responsibility to iron out
constitutional creases, to authoritatively clarify the roles of constitutional
institutions, when doubts as to their roles and powers are raised. However, as
stated above, this Court is well within its constitutional duty to refuse to answer
questions that are purely speculative, over broad, vague, purely political in
nature and beyond its institutional capacities.
B. Objections on malafide and form of reference
13. On the preliminary objection on form – that the Presidential Reference
does not disclose the State of Tamil Nadu (supra) decision, which it indirectly
seeks to impugn, and which answers 11 of the 14 questions, as per the parties
opposing the reference – we find that the law is settled.
14. This Court has held that there is neither a particular format prescribed,
nor a specific pattern while framing a reference. A reference is certainly not to
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be returned unanswered, on either of these counts, and rather require
“ appropriate analysis, understanding and appreciation of the content or the
issue on which doubt is expressed, keeping in view the concept of constitutional
25
responsibility, juridical propriety and judicial discretion ” .
15. Furthermore, Order XLII of the Supreme Court Rules, 2013 prescribes
that the Attorney General, and the parties to whom notice is issued in terms of
Rules 1 and 2, are the parties to bring out the relevant facts and law to the
attention of this Court. It was also specifically held in Natural Resources
Allocation (supra) that the written briefs and arguments advanced can be relied
26
on to discern the legal controversies before this Court under Article 143 itself .
Admittedly, the decision in State of Tamil Nadu (supra) forms the bulk of the
submissions advanced before this Court, and there is no question of it having
eluded us in our consideration of the matter.
16. The allegation that the non-disclosure of the judgment in itself, reflects
mala fides , is certainly a leap in logic, and one which does not behove this Court
to entertain, against the highest constitutional functionary, i.e., the President.
Given the constitutional significance of the questions so referred, we deem it
appropriate to reject the preliminary objection made in this regard. In any event,
a challenge to the maintainability of the reference on the grounds of malafide is

25
Natural Resources Allocation (supra), paragraph 33 .
26
Natural Resources Allocation (supra) , see paragraph 31.2.
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no longer available in view of the pronouncement of this Court in Natural
Resources Allocation (supra) .
17. The questions referred by the Hon’ble President pertain to the very core,
and foundational modalities of our constitutional machinery, that ensures the
continuation of our republican democracy, and governance by elected
representatives. That they are constitutionally significant, cannot by any
measure, be overstated. This Court is empowered, and entrusted under Article
143, with the duty to answer such questions in service of the Constitution, and
the people that have so adopted it. Judicial propriety, and institutional integrity
requires that this Court answer the questions referred to it in the present
proceedings.
C. Objections on the basis of the Judgment in
Cauvery (2)

18. The parties opposing the reference rely on Cauvery (2) (supra) to argue
that the substantial overlap in issues between the questions referred, and the
findings of this Court in State of Tamil Nadu (supra), result in an appeal in
disguise. They also argue that it is impermissible to overrule an earlier
precedent of this Court while exercising jurisdiction under Article 143.
19. On the latter aspect, we find it appropriate to refer to the opinion of Y.V.
Chandrachud, J. in In Re: Special Courts Bill 1978 (supra) where the binding
effect of an opinion rendered under Article 143 jurisdiction, is discussed at
length:
Page 16 of 111

(emphasis supplied)
20. We find that the reasoning of Chandrachud, J. (speaking for the majority)
in the 7-judge bench decision of In Re: Special Courts Bill is compelling, insofar
as it holds that our opinion may even go so far as to “ overrule, if necessary ”,
the view taken earlier by this very Court. Pertinently, the Court in Natural
Resources Allocation (supra), relying on the same paragraph (para 101)
27
reiterated that this Court has the power to overrule a previous view.
21. The argument that this reference amounts to an appeal in disguise, is
also sufficiently answered in Natural Resources Allocation (supra), in which
case this Court was considering a Reference that had been occasioned by an
earlier decision of the Court in Centre for Public Interest Litigation v. Union of
28
India [“2G case”]. In this case too, maintainability of the Reference was
challenged on the ground that it was an “ indirect endeavour to unsettle and
29
overturn the verdict in 2G Case” and reliance was placed heavily on the
decision in Cauvery (2) (supra), especially paragraphs 83 and 85 (as was done
by parties opposing the present reference as well) which read as follows:
“83. … Although this Court by the said decision has kept open
the question viz. whether the Tribunal has incidental, ancillary,

27
Natural Resources Allocation, In re, Special Reference No. 1 of 2012 , paragraph 50.
28
2012 INSC 68 ; (2012) 3 SCC 1.
29
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, paragraph 37 .
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inherent or implied power to grant the interim relief when no
reference for grant of such relief is made to it, it has in terms
concluded the second part of the question. We cannot, therefore,
countenance a situation whereby question 3 and for that matter
questions 1 and 2 may be so construed as to invite our opinion
on the said decision of this Court. That would obviously be
tantamount to our sitting in appeal on the said decision which it
is impermissible for us to do even in adjudicatory jurisdiction.
Nor is it competent for the President to invest us with an appellate
jurisdiction over the said decision through a Reference under
Article 143 of the Constitution.

84. Shri Nariman, however, contended that the President can
refer any question of law under Article 143 and, therefore, also
ask this Court to reconsider any of its decisions. For this purpose,
he relied upon the language of clause (1) of Article 143 which is
as follows […]

85. In support of his contention he also referred us to the
opinion expressed by this Court in The Delhi Laws Act, 1912, the
Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C
States (Laws) Act, 1950, Re [1951 SCC 568: 1951 SCR 747: AIR
1951 SC 332]. For the reasons which follow, we are unable to
accept this contention. In the first instance, the language of
clause (1) of Article 143 far from supporting Shri Nariman's
contention is opposed to it. The said clause empowers the
President to refer for this Court's opinion a question of law or fact
which has arisen or is likely to arise. When this Court in its
adjudicatory jurisdiction pronounces its authoritative opinion on a
question of law, it cannot be said that there is any doubt about
the question of law or the same is res integra so as to require the
President to know what the true position of law on the question
is. The decision of this Court on a question of law is binding on
all courts and authorities. Hence under the said clause the
President can refer a question of law only when this Court has
not decided it. Secondly, a decision given by this Court can be
reviewed only under Article 137 read with Rule 1 of Order 40 of
the Supreme Court Rules, 1966 and on the conditions mentioned
therein. When, further, this Court overrules the view of law
expressed by it in an earlier case, it does not do so sitting in
appeal and exercising an appellate jurisdiction over the earlier
decision. It does so in exercise of its inherent power and only in
exceptional circumstances such as when the earlier decision
is per incuriam or is delivered in the absence of relevant or
material facts or if it is manifestly wrong and productive of public
mischief. [See: Bengal Immunity Company Ltd. v. State of
Bihar [(1955) 2 SCR 603: AIR 1955 SC 661 : (1955) 6 STC 446]].
Under the Constitution such appellate jurisdiction does not vest
in this Court, nor can it be vested in it by the President under
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Article 143. To accept Shri Nariman's contention would mean
that the advisory jurisdiction under Article 143 is also an appellate
jurisdiction of this Court over its own decision between the same
parties and the executive has a power to ask this Court to revise
its decision. If such power is read in Article 143 it would be a
serious inroad into the independence of judiciary.”
(emphasis supplied)
22. While extrapolating the true ratio of Cauvery (2) (supra), this Court in
Natural Resources Allocation (supra) held as follows:
“47. Therefore, references in para 85 of Cauvery (2) [1993
Supp (1) SCC 96 (2)] to “decision” and “view of law” must be
severed from each other. The learned Judge observes that in
case of a decision, the appellate structure is exhausted after a
pronouncement by the Supreme Court. Therefore, the only
option left to the parties is of review or curative jurisdiction (a
remedy carved out in the judgment in Rupa Ashok Hurra v. Ashok
Hurra [(2002) 4 SCC 388]. After the exercise of those limited
options, the parties concerned have absolutely no relief with
regard to the dispute: it is considered settled for eternity in the
eye of the law. However, what is not eternal and still malleable
in the eye of the law is the opinion or “view of law” pronounced in
the course of reaching the decision. Sawant, J. in Cauvery (2)
[1993 Supp (1) SCC 96 (2)] clarifies that unlike this Court's
appellate power, its power to overrule a previous precedent is an
outcome of its inherent power when he says: (SCC p. 145, para
85)”
(emphasis supplied)
23. The Court concluded, as follows:
“48. Therefore, there are two limitations—one jurisdictional and
the other self- imposed:
48.1. The first limitation is that a decision of this Court can be
reviewed only under Article 137 or a curative petition and in no
other way. It was in this context that in para 85 of Cauvery (2)
[1993 Supp (1) SCC 96 (2)], this Court had stated that the
President can refer a question of law when this Court has not
decided it. Mr Harish Salve, learned Senior Counsel, is right
when he argues that once a lis between parties is decided, the
operative decree can only be opened in review. Overruling the
judgment—as a precedent—does not reopen the decree.
48.2. The second limitation, a self-imposed rule of judicial
discipline, was that overruling the opinion of the Court on a legal
Page 19 of 111


issue does not constitute sitting in appeal, but is done only in
exceptional circumstances, such as when the earlier decision is
per incuriam or is delivered in the absence of relevant or material
facts or if it is manifestly wrong and capable of causing public
mischief […]”.
(emphasis supplied)
24. The Court in Natural Resources Allocation (supra) further noted that in
various judgments, this Court had either explained, clarified or read down the
ratio of previous judgments. Reference was made to this Court’s decision in
Keshav Singh (supra) and the pronouncements it had considered, and clarified
by way of the 7-judge opinion rendered under Article 143(1), and it was held:

Page 20 of 111


(emphasis supplied)
25. Similarly, in Special Reference No. 1 of 1998, Re, (supra) too, the
reference was decided despite there being two judgments of this Court of larger
30
benches (First and Second Judges cases) . Though, in that case, the Attorney
General had specifically submitted that the Union of India was not seeking a
review or reconsideration of the previous judgments, which would be
31
considered to be binding.
26. The range of questions referred by the Hon’ble President do not require
this Court to sit in appeal over the decision in State of Tamil Nadu (supra) but
may require us to consider the view of law expressed, differently. The reference
raises pertinent questions of constitutional law, that hold significant public
importance, relating to the interpretation of the Articles 200, 201, 142, 143,
145(3) and 361. The questions do not require this Court to vacate, amend, or
modify the final relief granted by this Court in State of Tamil Nadu (supra), and
instead, at the most, seek clarification on the propositions of law laid down in it,
which have ramifications for the governance of all States, i.e., beyond the
parties that were before it in that lis .
27. The discussion of the ratio of Cauvery (2) (supra) has already clarified
that “sitting in appeal” would mean the variation, or vacation of the operative
order in a concluded lis . It was held that Article 143 cannot be invoked to

30
S.P. Gupta v. Union of India , 1981 INSC 209; 1981 SCC OnLine SC 494 (“the First Judges case”);
Supreme Court Advocates-on- Record Assn. v. Union of India, (1993) INSC 318; (1993) 4 SCC 441
(“the Second Judges case”).
31
Special Reference No. 1 of 1998, Re, 1998 INSC 402; (1998) 7 SCC 739, paragraph 11.
Page 21 of 111


overturn a concluded adjudication inter-se parties, but this cannot be conflated
with the authority of this Court to answer general questions of law referred to it
by the Hon’ble President, that hold constitutional importance. In this regard, the
submission made by the Attorney General, and Solicitor General - that the
present reference seeks clarification of constitutional principles for future
governance, and not the setting aside of an already awarded decree, or the
relief granted therein - is hereby, duly accepted.
28. In light of the findings elaborated hereinabove, we find that the
preliminary objections made in relation to similarity with the findings, or issues
raised in State of Tamil Nadu (supra) ought to be dismissed at the threshold,
and the various questions of constitutional significance referred by the Hon’ble
President merit our comprehensive consideration, within the contours and
scope of jurisdiction already laid out by this Court in a catena of judgments, in
relation to Article 143.
D. Re : The Court’s power to decline answering a question referred
29. Maintainability of a reference under Article 143 cannot be conflated with
the discretion that always lies with this Court, to decline answering a question
referred. A reference can be found to be maintainable, yet, this Court, upon
analysing the issues and after careful consideration, may still conclude that it
would be in the larger interest, to decline to answer a question (or questions).
The discretion that is exercisable to decline answering a question when it is
Page 22 of 111


over broad, superfluous, political, or not serving any constitutional purpose –
undoubtedly remains.
30. Having emphasized the functional nature of the present reference, this
Court finds that at least some of the questions do not concern with functional
aspects of the institutions of the Governor and the President. Question 12
concerns itself with Article 145(3) and the composition of benches in the
Supreme Court which should hear cases concerning substantial questions of
law involving the interpretation of the Constitution. Whether a dispute raises
such a question or not is within the province of judicial enquiry and it is also
within the power and jurisdiction of the Chief Justice of India to determine the
strength of a Bench. This query is irrelevant to the functional nature of the
reference, and this Court declines to answer this question. Question 14
concerning the jurisdiction of this Court to resolve disputes between the Union
and the States is also irrelevant to functional nature of the reference, and this
Court declines to answer this question.
31. Question 13 concerning the power of this Court under Article 142 is
worded in such broad terms that it is not possible to answer it in a
comprehensive and definitive manner. However, Question 10 which also
concerns the use of Article 142, but raised in the context of the functions of the
Governor and the President, will be answered in the course of this opinion.
Page 23 of 111


IV. Values that should govern and guide Constitutional Interpretation
32. Before this Court proceeds to render its opinion on the queries raised, a
few, yet significant prefatory observations on the use of comparative law and
precedents are in order. Copious written submissions and extensive arguments
have been employed by counsel to underscore the functioning of the
Westminster parliamentary model and its workings in the United Kingdom. They
sought to draw parallels on the discretionary powers of the Crown and the
limitations thereon. On the other hand, arguments were advanced on the
Presidential system prevalent in the United States of America, and the strict
separation of powers practiced there. This Court believes that our constitutional
truth does not lay in either of these extremes but is grounded in the way we
have successfully, and if we may add, proudly, worked our Constitution over
three quarters of a century. While our Constitutional text may have been
inspired by comparative outlook, its interpretation and working, we believe is
truly swadeshi .
33. Unlike the English experience of an unwritten constitution, we have a
written text. English constitutional law did not have to grapple with vital
questions of federalism and an inherently diverse country. It did not have to deal
with distribution of legislative powers between the Union and the States,
questions of shared natural resources, inter State trade, commerce and
taxation, Union control over foreign relations and the not so infrequent, yet
healthy contestations of constitutional spaces between the Union and States.
The American experience is vastly different due to the strict separation of
Page 24 of 111


powers between Executive and Legislature, necessitating the Presidential veto.
Indian constitutionalism on the other hand has evolved over years to a
parliamentary model where legislative agenda, business and enactment is
overwhelmingly executed at the behest of the Executive, and the introduction
of the Tenth Schedule to the Constitution has left very little, if no, room for
legislation without the support of government in power. The point that is being
made is this- the Indian Constitution is not just transformative in its adoption, it
has been and continues to be transformative in its practice and interpretation,
shedding its colonial vestiges for a vibrant and evolving swadeshi foundation.
V. Constitutional options before the Governor upon the presentation of
a Bill
A. Role of the Governor under Chapter III, Part VI of the Constitution

34. The focal point of the present Reference is the interpretation of Article
200 of the Constitution of India. This provision is nestled in Chapter III of Part
VI of the Constitution of India. Chapter III entitled “the State Legislature”,
contains some unique provisions concerning the Governor and the State
Legislature. It must be recalled here, that unlike the President, the Governor is
32
not elected but is appointed by the President of India under Article 155 . The
constitutional scheme in Chapter II of Part VI vests the Executive power of the
State with the Governor and provides detailed machinery as to how the
executive functions shall be discharged. And yet, an unelected Governor is

32
“ 155 . Appointment of Governor.— The Governor of a State shall be appointed by the President by
warrant under his hand and seal. ”
Page 25 of 111


33
constitutionally engrafted as part of the State legislature under Article 168 .
The Governor’s constitutional functions vis-à-vis the State legislature are to be
found in Chapter III whereas the Governor’s legislative powers are situated in
Chapter IV of Part VI, which, uniquely, contains only a single provision- Article
213, which is the power of the Governor to promulgate ordinances. The wide
variety of legislative functions of the Governor in Chapter III include the power
34
to summon the House (or each House), prorogue, dissolve the House , the
35
right of the Governor to address the House , the right to send messages to the
36 37
House , special address by the Governor , and the duty to give oath to
38
members . In respect of legislative business in the House, the Governor is
tasked with the responsibility of laying before the House the annual financial

33
“ 168 . Constitution of Legislatures in States.— (1) For every State there shall be a Legislature which
shall consist of the Governor, and—(a) in the States of Andhra Pradesh, Bihar, Madhya Pradesh,
Maharashtra, Karnataka, Tamil Nadu, Telangana, and Uttar Pradesh, two Houses; (b) in other States,
one House. (2) Where there are two Houses of the Legislature of a State, one shall be known as the
Legislative Council and the other as the Legislative Assembly, and where there is only one House, it
shall be known as the Legislative Assembly.”
34
“ . .—(1) The Governor shall
174 Sessions of the State Legislature, prorogation and dissolution
from time to time summon the House or each House of the Legislature of the State to meet at such time
and place as he thinks fit, but six months shall not intervene between its last sitting in one session and
the date appointed for its first sitting in the next session. (2) The Governor may from time to time—(a)
prorogue the House or either House; (b) dissolve the Legislative Assembly.”
35
“ 175 . Right of Governor to address and send messages to the House or Houses. —(1) The
Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council,
either House of the Legislature of the State, or both Houses assembled together, and may for that
purpose require the attendance of members .”
36
“ 175 . Right of Governor to address and send messages to the House or Houses. — […]
(2) The Governor may send messages to the House or Houses of the Legislature of the State, whether
with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message
is so sent shall with all convenient despatch consider any matter required by the message to be taken
into consideration.”
37
“ 176. Special address by the Governor .—(1) At the commencement of 2 [the first session after
each general election to the Legislative Assembly and at the commencement of the first session of each
year], the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative
Council, both Houses assembled together and inform the Legislature of the causes of its summons. (2)
Provision shall be made by the rules regulating the procedure of the House or either House for the
allotment of time for discussion of the matters referred to in such address. ”
38
“ 188. Oath or affirmation by members .—Every member of the Legislative Assembly or the
Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or
some person appointed in that behalf by him, an oath or affirmation according to the form set out for
the purpose in the Third Schedule.”
Page 26 of 111


39 40
statement and statement for supplementary, excess and additional grant .
The Governor’s recommendation is constitutionally made a prerequisite for
41
demand of grant under Article 203(3) and for introducing, moving and passing
42
a Money Bill under Article 207 . It can thus be discerned that the Constitution
enjoins several legislative functions upon the Governor and crucial legislative
functions of the State legislature, including the entire ambit of financial
statements, appropriations and money bills are constitutionally triggered only
upon the recommendation of the Governor. It is against this backdrop that
Article 200 of the Constitution needs to be interpreted.
35. Article 200 reads as follows:

39
“ 202. Annual financial statement. —(1) The Governor shall in respect of every financial year cause
to be laid before the House or Houses of the Legislature of the State a statement of the estimated
receipts and expenditure of the State for that year, in this Part referred to as the “annual financial
statement ”.”
40
“ 205. Supplementary, additional or excess grants.— (1) The Governor shall—
(a) if the amount authorised by any law made in accordance with the provisions of article 204
to be expended for a particular service for the current financial year is found to be insufficient for the
purposes of that year or when a need has arisen during the current financial year for supplementary or
additional expenditure upon some new service not contemplated in the annual financial statement for
that year; or
(b) if any money has been spent on any service during a financial year in excess of the amount
granted for that service and for that year, cause to be laid before the House or the Houses of the
Legislature of the State another statement showing the estimated amount of that expenditure or cause
to be presented to the Legislative Assembly of the State a demand for such excess, as the case may
be.”
41
“ 203. Procedure in Legislature with respect to estimates .— […]
(3) No demand for a grant shall be made except on the recommendation of the Governor.”
42
“ 207. Special provisions as to financial Bills .—(1) A Bill or amendment making provision for any
of the matters specified in sub-clauses (a) to (f) of clause (1) of article 199 shall not be introduced or
moved except on the recommendation of the Governor, and a Bill making such provision shall not be
introduced in a Legislative Council:
Provided that no recommendation shall be required under this clause for the moving of an
amendment making provision for the reduction or abolition of any tax.
(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by
reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand
or payment of fees for licences or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local
purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure from the
Consolidated Fund of a State shall not be passed by a House of the Legislature of the State unless the
Governor has recommended to that House the consideration of the Bill.”
Page 27 of 111


“ 200. Assent to Bills. —When a Bill has been passed by the
Legislative Assembly of a State or, in the case of a State having a
Legislative Council, has been passed by both Houses of the
Legislature of the State, it shall be presented to the Governor and
the Governor shall declare either that he assents to the Bill or that
he withholds assent therefrom or that he reserves the Bill for the
consideration of the President:
Provided that the Governor may, as soon as possible after
the presentation to him of the Bill for assent, return the Bill if it is not
a Money Bill together with a message requesting that the House or
Houses will reconsider the Bill or any specified provisions thereof
and, in particular, will consider the desirability of introducing any
such amendments as he may recommend in his message and,
when a Bill is so returned, the House or Houses shall reconsider the
Bill accordingly, and if the Bill is passed again by the House or
Houses with or without amendment and presented to the Governor
for assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but
shall reserve for the consideration of the President, any Bill which
in the opinion of the Governor would, if it became law, so derogate
from the powers of the High Court as to endanger the position which
that Court is by this Constitution designed to fill.”

(emphasis supplied)
B. Article 200: the “what” and “how” of Governor’s options

36. We note that previous decisions of this Court as well the elaborate
submissions addressed before us conflate two important aspects of Article 200.
The first aspect is the range of options before the Governor when a Bill is
presented to the Governor- which is the “ what ” of the Article 200. The second
aspect relates to whether the Governor exercises these options in his discretion
or upon the aid and advice of the Council of Ministers - what we describe as the
“ how ”. Although it is tempting to address these issues together, in our
considered opinion, the constitutional options before the Governor under Article
200 stand independently of how it is exercised. In other words, the existence of
Page 28 of 111


options is de-hors the manner in which they are to be exercised. In this section
we intend to only discuss and opine as to the first, and not the second.
37. During the arguments, our attention was drawn to the precursor
43
provisions in the Government of India Act, 1919 , the Government of India Act,
44
1935 and the various draft provisions in the constitution making process. The
drafting process and Constituent Assembly Debates do not provide clear
insights as to the exact nature of the different options available and are of limited
assistance in this regard. But the aspects regarding the insertion and deletion
of the words “ in his discretion ” to the proviso of Article 175 (precursor to Article
200) in the Constituent Assembly Debates merit some consideration, which it
will receive in the following section of this opinion.
C. Competing arguments on the options available to the Governor
under Articles 200 and 201

38. The submission made on behalf of the Union of India, and some of the
States that have supported the reference, is that the text of Article 200 is explicit-

43
Section 12, Government of India Act, 1919, which reads as follows:
“ 12 . Return and reservation of Bills. (1) Where a Bill has been passed by a local Legislative council,
the Governor, Lieutenant-Governor or Chief Commissioner may instead of declaring that he assents to
or withholds his assent from the Bill, return the Bill to the Council for reconsideration, either in whole or
in part, together with any amendments which he may recommend, or, in cases prescribed by rules
under the Principal Act may, and if the rules so require shall, reserve the Bill for the consideration of the
Governor-General. […] ”
44
Section 75, Government of India Act, 1935, which reads as follows:
“ 75. Assent to Bills . A Bill which has been passed by the Provincial Legislative Assembly or, in the
case of a Province having a Legislative Council, has been passed by both Chambers of the Provincial
Legislature, shall be presented to the Governor, and the Governor in his discretion shall declare either
that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he
reserves the Bill for the consideration of the Governor-General:
Provided that the Governor may in his discretion return the Bill together with a message
requesting that the Chamber or Chambers will reconsider the Bill or any specified provisions thereof
and, in particular, will consider the desirability of introducing any such amendments as he may
recommend in his message and, when a Bill is so returned, the Chamber or Chambers shall reconsider
it accordingly .”
Page 29 of 111


upon presentation of the Bill, the Governor can assent to the Bill, or he can
withhold assent therefrom or he can reserve the Bill for the consideration of the
President. The first proviso to Article 200 regarding return of a Bill to the
Legislature, according to these submissions, is an additional option available to
the Governor, making it a total of four alternatives that the Governor can choose
from. They place reliance on the decisions in State of Bihar v. Kameshwar
45
Singh (hereinafter Kameshwar) , Union of India v. Valluri Basavaiah
46
Chowdhary (hereinafter Valluri) , and Hoechst Pharmaceuticals Ltd. v. State
47
of Bihar (hereinafter Hoechst) .
39. In opposition, it has been argued that Article 200 provides the Governor
with three options only - assent to the Bill, reserve it for the consideration of the

45
1952 INSC 28; (1952) 1 SCC 528 [5JB]. Reference to paragraph 235:
“ . […] The procedure to be followed after a Bill is passed by the State Assembly is laid down in
235
Article 200. Under that article the Governor can do one of three things, namely, he may declare that he
assents to it, in which case the Bill becomes a law, or he may declare that he withholds assent
therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed,
or he may declare that he reserves the Bill for the consideration of the President, in which case the
President will adopt the procedure laid down in Article 201. Under that article the President shall declare
either that he assents to the Bill in which case the Bill will become law or that he withholds assent
therefrom, in which case the Bill falls through unless the procedure indicated in the proviso is followed.
[…] ”
46
1979 INSC 93; (1979) 3 SCC 324 [5JB]. Reference to paragraph 19:
“ 19 . The Governor is, however, made a component part of the legislature of a State under Article 168,
because every Bill passed by the State legislature has to be reserved for the assent under Article 200.
Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent
to it, in which case the Bill becomes a law; or (ii) he may, except in the case of a “Money Bill”, withhold
his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first
proviso is followed i.e. return the Bill to the Assembly for reconsideration with a message, or (iii) he may
(subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the
President will adopt the procedure laid down in Article 201 . […]”
47
1983 INSC 61; (1983) 4 SCC 45 [3JB]. Reference to paragraph 85:
“ . The constitutional position of a Governor is clearly defined. The Governor is made a component
85
part of the legislature of a State under Article 168 because every Bill passed by the State legislature
has to be reserved for the assent of the Governor under Article 200. Under that Article, the Governor
can adopt one of the three courses, namely: (1) He may give his assent to it, in which case the Bill
becomes a law; or (2) He may except in the case of a ‘Money Bill’ withhold his assent therefrom, in
which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return
the Bill to the Assembly for consideration with a message; or (3) He may “on the advice of the Council
of Ministers” reserve the Bill for the consideration of the President, in which case the President will
adopt the procedure laid down in Article 201. […] ”
Page 30 of 111


President or return the Bill with message to the House requesting it to
reconsider the Bill or a part of it, and after such reconsideration, if the House
passes the Bill again, with or without amendment, the Governor is bound to give
assent. Reliance in this regard is placed on the decisions in in State of Punjab
48
v. Governor of Punjab (hereinafter State of Punjab) and State of Tamil Nadu
49
(supra) .
D. Analysis of the decisions of this Court in State of Punjab ,
Kameshwar , Valluri and Hoechst

40. Before analyzing the text of Article 200, a note on the precedents cited
above is necessary. The decision in State of Punjab (supra), does not cite the
decisions Kameshwar (supra) , Valluri (supra) , and Hoechst (supra) . On that

count it fails to engage with the logic in those judgments, and since each one of
them was rendered by larger Benches, it is our considered opinion that the
precedential value of State of Punjab (supra) is dented on this count. The Court
in State of Tamil Nadu (supra) , engages with the logic of these larger Bench
decisions but pits that logic against the decision in State of Punjab (supra) . Both
the decisions in State of Punjab (supra) and State of Tamil Nadu (supra), with
due respect, could not have deviated from the binding precedents of larger
Bench decisions.
41. Be that as it may, none of the factual scenarios in Kameshwar (supra),
Valluri (supra) , and Hoechst (supra), called for an analysis of the powers and

48
2023 INSC 1017; (2024) 1 SCC 384 [3JB]. See paragraphs 19, 20, 22, 24 and 25.
49
2025 INSC 481; (2025) 8 SCC 1 [2JB] See paragraphs 194, 198, 199, 203 and 204.
.
Page 31 of 111


options of the Governor under Article 200. The context in which Kameshwar
(supra) , was delivered, was a challenge to land reform enactments and
compliance with Article 31(3) of the Constitution as it then existed. Article 31(3)
mandated that certain laws referred to clause (2) of Article 31 shall not have
effect until they are reserved for the assent of the President and received it. The
Court was called upon to decide whether the assent of the Governor was a
perquisite for the reservation of the ‘law’ for the assent of the President. The
mechanics of Article 200 and options before the Governor were never in issue.
In Valluri (supra), yet again, the question posed was far stranger to the
substance of Article 200. The Court therein was engaged with the question as
to whether a resolution passed under Article 252 by the State legislature must
also contain the signatures of the Governor and whether the Governor was part
of the legislature for the purpose of Article 252. Hoechst (supra) pertained to
challenge to certain provisions of the Bihar Finance Act, 1981 on the ground
that it was repugnant to laws made by the Union. The Court had no occasion to
consider the options before the Governor under Article 200.
E. Construction of the plain text of the Constitution to determine the
options available for the Governor under Article 200

42. The foregoing discussion brings us to the plain text of Article 200. A literal
reading of the substantive provision of Article 200, a simple and attractive
method, presents to the Governor three options – each distinct and separated
using the word “ or ”. The President shall declare either, (i) that he assents to the
Bill, or (ii) that he withholds assent therefrom, or (iii) that he reserves the Bill for
Page 32 of 111


the consideration of the President. In this suggested reading of Article 200, the
first proviso carves out an exception and permits the fourth option where he can
return the Bill to the House with comments, unless it is a Money Bill. In this
suggested interpretation, there is an independent power to withhold the Bill
simpliciter , in which case the Bill falls through. The proviso provides an
additional option, a fourth option, to return the Bill to the House(s) with a
message for its reconsideration.
43. The second interpretative choice on Article 200, is to bind the first proviso
to the substantive part of Article 200, to qualify the power of the Governor to
withhold the Bill, in which case the Governor is provided with a total of three
options between the substantive part of Article 200 and the first proviso thereto.
First, the Governor may assent to the Bill. Second, he may reserve the Bill for
the consideration of the President. Third, he may withhold assent therefrom and
return the Bill to the legislature with comments, and if it is passed with or without
amendment, he shall not withhold assent therefrom. The third option, in such a
reading of Article 200 can be exercised only if the Bill is not a Money Bill.
44. For the reasons indicated hereinbelow, this Court is of the opinion that
the latter interpretation of Article 200 is aligned with the constitutional ethos,
constitutional structure and is to be preferred over an interpretation that
empowers the Governor to withhold a Bill simpliciter.
45. The substantive part of Article 200 employs three verbs that indicate the
options of the Governor- assent , withhold, and reserve . Each of these actions
Page 33 of 111


are qualitatively different from one another. However, the first proviso which
repeats the verb ‘ withhold’ indicates that the word “ withholds ” in the substantive
part is not without qualification. The first proviso in our considered opinion
qualifies the verb “ withholds ” in the substantive part and obliges the Governor
to “return” the Bill in accordance with the first proviso, except , in case of a Money
Bill. In that sense, the first proviso is not an exception that creates a fourth
option, it is rather a qualification to the substantive part of Article 200, limiting
the full play of the word “ withholds ” employed therein.
46. The manner in which the phrase “ shall not withhold assent therefrom ” is
employed in the first proviso to Article 200 and conspicuously absent from a
similarly worded proviso to Article 201, is a clear indication that the first proviso
was indeed limiting the full import of the term “ withholds ” in the substantive part
of Article 200.
47. Such a reading of the first proviso is also consistent with the
constitutional import of the second proviso to Article 200. The second proviso
mandates that a Governor shall not assent to, but reserve for the consideration
of the President, any Bill which, in the opinion of the Governor, derogates from
the powers conferred on the High Court by the Constitution. Akin to the first
proviso, the second proviso too does not create an exception, but qualifies the
full width of the verb - “ assent ” and limits its operation upon satisfaction of the
conditions specified therein. It impliedly limits the option of the Governor to even
withhold and return the Bill but obliges the Governor to mandatorily reserve the
Page 34 of 111


Bill for consideration of the President in case the Bill derogates from the power
of the High Court. Both the provisos in Article 200 are to be read as restricting
the options of the Governor and not creating a further option. The provisos, in
our opinion, do not create additional options, but restrict existing ones. In other
words, the provisos do not create exceptions but only limit the options before
the Governor in the substantive part of Article 200.
48. There is significant reason why there cannot exist a simpliciter power of
withholding, dehors the mandate to return the Bill to the House with comments.
The first proviso disentitles the Governor from returning the Bill to the House in
case it is a Money Bill. Therefore, in case of a Money Bill the Governor’s option
is limited to either assenting to the Bill or reserving it to the President. However,
if the option to withhold a Bill simpliciter is read into the substantive part of Article
200, then, even a Money Bill can be withheld simpliciter, which reading, in our
opinion, defies constitutional logic.
49. The Constitution employs a certain grammar, a different structure and
has devised a specific procedure for the introduction and passing of a Money
Bill. The framers were cautious enough to provide a detailed and exhaustive
50
definition of a Money Bill in Article 199 . A Money Bill cannot be introduced or

50
“ 199. Definition of “Money Bills ”.—
(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the State, or the
amendment of the law with respect to any financial obligations undertaken or to be undertaken by the
State;
(c) the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of
moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of the State;
Page 35 of 111


moved except on the recommendation of the Governor, and it cannot be
introduced in the Legislative Council in case the State has a bicameral
51 52
legislature, in terms of Article 198(1) read with Article 207 . The Constitution
framers also took care to ensure that a Money Bill passed by the Legislative
Assembly and transmitted to the Legislative Council, is returned by the
Legislative Council with its recommendations within 14 days, or else the Bill is
deemed to have been passed by both the Houses on the expiration on the said
53
period . A reading of Article 198(3) and 198(4) also reveals that the

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of
the State, or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of the State or the public account
of the State or the custody or issue of such money; or
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition
of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for
services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local purposes.
(3) If any question arises whether a Bill introduced in the Legislature of a State which has a
Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative Assembly of
such State thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council
under article 198, and when it is presented to the Governor for assent under article 200, the certificate
of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.”
51
“ 198. Special procedure in respect of Money Bills .— (1) A Money Bill shall not be introduced in a
Legislative Council. […]”
52
“ 207. Special provisions as to financial Bills .—
(1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f)
of clause (1) of article 199 shall not be introduced or moved except on the recommendation of the
Governor, and a Bill making such provision shall not be introduced in a Legislative Council:
Provided that no recommendation shall be required under this clause for the moving of an
amendment making provision for the reduction or abolition of any tax.
(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by
reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand
or payment of fees for licences or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local
purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure from the
Consolidated Fund of a State shall not be passed by a House of the Legislature of the State unless the
Governor has recommended to that House the consideration of the Bill.” (emphasis supplied)
53
In terms of (2) and (5) of Article 198 , which reads as follows:
“ 198. Special procedure in respect of Money Bills. —
(1) A Money Bill shall not be introduced in a Legislative Council.
(2) After a Money Bill has been passed by the Legislative Assembly of a State having a Legislative
Council, it shall be transmitted to the Legislative Council for its recommendations, and the Legislative
Council shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the
Page 36 of 111


recommendations suggested by the Legislative Council are not binding on the
54
Legislative Assembly in the case of a Money Bill. In such circumstances, in
our opinion, it would be contrary to the structure of Constitution, that the
Governor has the option to simpliciter withhold even a Money Bill when the
Legislative Council, an elected body, cannot mandate changes to a Money Bill.
Though Mr. Salve submitted that even a Money Bill could be withheld
simpliciter, we find that such submission ought to be squarely rejected.
50. Even in the case of a Bill, which is not a Money Bill, the first proviso
disempowers the Governor from withholding the Bill when it is presented again
to the Governor. What is impermissible to withhold through a dialogic process
in the first proviso, cannot be permitted to be withheld abruptly or simpliciter by
the Governor alone, employing the “ withholds ” option in the substantive part.
This fortifies our reasoning that term “ withholds” in the substantive part of Article
200 is conditioned and qualified by the first proviso.
51. We are of the firm opinion that if two interpretations are possible, then
an interpretation that favors a dialogic process, which encourages institutional

Legislative Assembly with its recommendations, and the Legislative Assembly may thereupon either
accept or reject all or any of the recommendations of the Legislative Council.
(3) If the Legislative Assembly accepts any of the recommendations of the Legislative Council, the
Money Bill shall be deemed to have been passed by both Houses with the amendments recommended
by the Legislative Council and accepted by the Legislative Assembly.
(4) If the Legislative Assembly does not accept any of the recommendations of the Legislative
Council, the Money Bill shall be deemed to have been passed by both Houses in the form in which it
was passed by the Legislative Assembly without any of the amendments recommended by the
Legislative Council.
(5) If a Money Bill passed by the Legislative Assembly and transmitted to the Legislative Council for
its recommendations is not returned to the Legislative Assembly within the said period of fourteen days,
it shall be deemed to have been passed by both Houses at the expiration of the said period in the form
in which it was passed by the Legislative Assembly.”
54
Ibid.
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comity and deliberation between constitutional institutions – in this case that of
the Governor and the House(s) – must be preferred over an interpretation that
limits or eschews such a dialogue. Such an interpretation prevents institutional
redundancy. We observe a deliberate constitutional design in incorporating the
Governor within the definition of Legislature in Article 168. The institution of the
Governor and the House(s) are coupled together in this process under Article
201. One institution sends a message (suggestions) initiating this dialogic
process and the other deliberates upon this message. We find that this dialogic
process is in consonance with the functional roles assigned to both these
institutions.
52. It is this very same dialogic process that prompted the framers of the
Constitution to engrave Article 201 and the proviso thereto. Upon reservation
under Article 200, the President is empowered to exercise his options under
Article 201, and the proviso also provides for an option to return the Bill to the
House with a message. What is important is that the words “ shall not withhold
therefrom ” which is present in the first proviso to Article 200 is conspicuously
absent from the proviso to Article 201. Since the Presidential reference has not
sought our opinion as regards the options under Article 201, we say no further.
53. As an additional reason, we take a textual cue from Section 12 of the
Government of India Act, 1919, the first sub-section of which reads as under:
“Sec. 12. (1) Where a Bill has been passed by a local Legislative
council, the Governor, Lieutenant-Governor or Chief Commissioner
may instead of declaring that he assents to or withholds his assent

from the Bill, return the Bill to the Council for reconsideration, either
in whole or in part, together with any amendments which he may
Page 38 of 111


recommend, or, in cases prescribed by rules under the Principal Act
may, and if the rules so require shall, reserve the Bill for the
consideration of the Governor-General” .
(emphasis supplied)
The deployment of the phrase “ instead of ” in relation of assent and withhold,
clearly postulates that the succeeding option of returning the Bill was an option
divorced from the option of withhold and a completely different option. Such a
phraseology was available and not put to deliberate use in the text of the
Constitution. This adds an additional reason to our interpretative choice of
Article 200.
54. Submissions were also advanced that the language of Article 200 is
consistent with Section 75 of the Government of India Act, 1935 and that the
Governor thereunder, was empowered to withhold a Bill simpliciter. This
argument must be noted only to be rejected. A colonial appointee’s (the office
of the Governor then) power to withhold a Bill passed by a legislature (which
was not elected based on universal adult suffrage), cannot and must not inform
the interpretation of a democratic, republican, and an emancipatory Constitution
like ours.
55. It was also urged by the counsel supporting the reference that the term
“ may ” employed in the first proviso to Article 200 indicates the power to withhold
and the power to return the Bill to the House(s) are divorced, and the Governor
“ may” exercise the option to return the Bill only in some cases. We are of the
opinion, that the use of the phrase “ may” (and not “shall”) in the first proviso is
only to indicate that the Governor need not return every Bill to the House(s),
Page 39 of 111


and that he still can exercise the option of assenting to the Bill, or to reserve it
for the consideration of the President.
F. Interpretation and Construction of Article 200 in the context of
Federalism as a basic feature of the Constitution

56. At this stage, it is apposite to refer to the federal nature of our
Constitution. We are quite conscious that our law reports are replete with
enough judgments on this count and our opinion in a Presidential reference is
not the ideal occasion for an exhaustive analysis. There is no gainsaying that
federalism is part of the basic structure or that it is a basic feature of the
55
Constitution of India. As to the nature of Indian federalism, judicial
pronouncements of this Court have employed divergent yardsticks and
deployed varying terminology to distill the true nature of the federalism. We do
not have any hesitation in recalling the observations made by this Court in State
56
of Rajasthan v. Union of India , while categorizing our constitution as
‘ amphibian’:
“60. Although Dr Ambedkar thought that our Constitution is federal
“inasmuch as it establishes what may be called a Dual Polity”, he
also said, in the Constituent Assembly, that our Constitution-makers
had avoided the ‘tight mould of federalism’ in which the American
Constitution was forged. Dr Ambedkar, one of the principal
architects of our Constitution, considered our Constitution to be
“both unitary as well as federal according to the requirements of
time and circumstances”.
61. If then our Constitution creates a Central Government which is
“amphibian”, in the sense that it can move either on the federal or
unitary plane, according to the needs of the situation and
circumstances of a case, the question which we are driven back to
consider is whether an assessment of the “situation” in which the
Union Government should move either on the federal or unitary

55
S. R. Bommai v. Union of India, 1994 INSC 111; (1994) 3 SCC 1 [9JB], see paragraphs 96, 106 (P
B Sawant J., for Kuldip Singh J. and himself), paragraph 247 (K. Ramaswami, J.).
56
1977 INSC 143; (1977) 3 SCC 592 [7JB].
Page 40 of 111


plane are matters for the Union Government itself or for this Court
to consider and determine. Each organ of the Republic is expected
to know the limits of its own powers. The Judiciary comes in
generally only when any question of ultra vires action is involved,
because questions relating to vires appertain to its domain.”

57
57. In State of West Bengal v. Union of India , the Court opined that our
Constitution adopted a federal structure with a strong bias towards the Centre
58
and the Centre remains strong to prevent fissiparous tendencies. The Court
stated that “ The exercise of powers, legislative and executive, in the allotted
fields is hedged in by the numerous restrictions, so that the powers of the States
59
are not co-ordinate with the Union and are not in many respects independent. ”
60
58. In S. R. Bommai v. Union of India , this Court described the nature of
the Indian polity as that of pragmatic federalism and cautioned against an
approach that affixes a theoretical label to the Constitution. After an exhaustive
survey of the constitutional provisions and case law, the Court concluded that
( B.P. Jeevan Reddy, J. ) –
“276. The fact that under the scheme of our Constitution, greater
power is conferred upon the Centre vis-à-vis the States does not
mean that States are mere appendages of the Centre. Within the
sphere allotted to them, States are supreme. The Centre cannot
tamper with their powers. More particularly, the courts should not

57
1962 INSC 391; (1964) 1 SCR 371 [6JB]
58
Ibid., paragraph 82, which reads as follows:
“ . […] A federal structure is mainly conceived to harmonize existing conflicting interests and to provide
82
against future conflicts. India is a vast country: indeed, it is described as a sub-continent. Historically,
before the advent of the Constitution, there were different Provinces enjoying in practice a fair amount
of autonomy and there were innumerable States with varying forms of government ranging from pure
autocracy to guided democracy. There were also differences in language, race, religion etc. There were
also foreign pockets expected sooner or later to be incorporated with the main country. In those
circumstances our Constitution adopted a federal structure, with a strong bias towards the Centre.
Under such a structure, while the Centre remains strong to prevent the development of fissiparous
tendencies, the States are made practically autonomous in ordinary times within the spheres allotted to
them. ”
59
Ibid. , paragraph 25.
60
1994 INSC 111; (1994) 3 SCC 1 [9JB].
Page 41 of 111


adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to
the States. … must put the court on guard against any conscious
whittling down of the powers of the States. Let it be said that the
federalism in the Indian Constitution is not a matter of administrative
convenience, but one of principle — the outcome of our own
historical process and a recognition of the ground realities. … It is
enough to note that our Constitution has certainly a bias towards
Centre vis-à-vis the States (Automobile Transport (Rajasthan)
Ltd. v. State of Rajasthan [(1963) 1 SCR 491: AIR 1962 SC 1406],
SCR at p. 540). It is equally necessary to emphasise that courts
should be careful not to upset the delicately crafted constitutional
scheme by a process of interpretation.”
(emphasis supplied)
Whereas Sawant , J. opined:
“99. […] the States have an independent constitutional existence
and they have as important a role to play in the political, social,
educational and cultural life of the people as the Union. They are
neither satellites nor agents of the Centre. The fact that during
emergency and in certain other eventualities their powers are
overridden or invaded by the Centre is not destructive of the
essential federal nature of our Constitution. The invasion of power
in such circumstances is not a normal feature of the Constitution.
They are exceptions and have to be resorted to only occasionally to
meet the exigencies of the special situations. The exceptions are
not a rule.”
(emphasis supplied)
59. In the context of State legislations, this Court in ITC Ltd. v. Agricultural
61
Produce Market Committee held:
“58. True, the parliamentary legislation has supremacy as provided
under Articles 246(1) and (2). This is of relevance when the field of
legislation is on the Concurrent List. While maintaining
parliamentary supremacy, one cannot give a go-by to the federalism
which has been held to be a basic feature of the Constitution
(see S.R. Bommai v. Union of India [(1994) 3 SCC 1]).
59. The Constitution of India deserves to be interpreted, language
permitting, in a manner that it does not whittle down the powers of
the State Legislature and preserves the federalism while also
upholding the Central supremacy as contemplated by some of its
articles.”

61
2022 INSC 44; (2002) 9 SCC 232 [5JB].
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(emphasis supplied)
62
60. This Court in Kuldip Nayar v. Union of India held as follows:
“63. True, the federal principle is dominant in our Constitution and
that principle is one of its basic features, but, it is also equally true
that federalism under the Indian Constitution leans in favour of a
strong Centre, a feature that militates against the concept of strong
federalism. […]
65. The concept of federalism in our Constitution, it has been held,
is vis-à-vis the legislative power as would be evident by various
articles of the Constitution. In fact, it has come into focus in the
63
context of distribution of legislative powers under Article 246 .”

(emphasis supplied)
64
61. In Government (NCT of Delhi) v. Union of India this Court
characterized federalism in India, to be ‘collaborative’ or ‘cooperative’
federalism [taking forward the description in State of Rajasthan (supra) – this is
65
where the term cooperative federalism from Austin’s work, is recognized by
this Court]:
“ 111. The aforesaid idea, in turn, calls for coordination amongst the
Union and the State Governments. The Union and the States need
to embrace a collaborative/cooperative federal architecture for
achieving this coordination.
[…]
116. Thus, the Union and the State Governments should always
work in harmony avoiding constitutional discord. In such a
collaboration, the national vision as set out in the Preamble to our
Constitution gets realised. The methods and approach for the
Governments of the Union and the States may sometimes be
different but the ultimate goal and objective always remain the same
and the governments at different levels should not lose sight of the
ultimate objective. This constitutional objective as enshrined in the
Constitution should be the guiding star to them to move on the path
of harmonious coexistence and interdependence. They are the

62
2006 INSC 532; (2006) 7 SCC 1 [5JB].
63
ITC Ltd. v. Agricultural Produce Market Committee, 2022 INSC 44; (2002) 9 SCC 232.
64
2019 INSC 194; (2018) 8 SCC 501 [5JB].
65
2019 INSC 194; (2018) 8 SCC 501, paragraph 121.

Page 43 of 111


basic tenets of collaborative federalism to sustain the strength of
constitutional functionalism in a Welfare State.
[…]
119. Thus, the idea behind the concept of collaborative federalism
is negotiation and coordination so as to iron out the differences
which may arise between the Union and the State Governments in
their respective pursuits of development. The Union Government
and the State Governments should endeavour to address the
common problems with the intention to arrive at a solution by
showing statesmanship, combined action and sincere cooperation.
In collaborative federalism, the Union and the State Governments
should express their readiness to achieve the common objective
and work together for achieving it. In a functional Constitution, the
authorities should exhibit sincere concern to avoid any conflict. This
concept has to be borne in mind when both intend to rely on the
constitutional provision as the source of authority. We are
absolutely unequivocal that both the Centre and the States must
work within their spheres and not think of any encroachment. But in
the context of exercise of authority within their spheres, there should
be perception of mature statesmanship so that the constitutionally
bestowed responsibilities are shared by them. Such an approach
requires continuous and seamless interaction between the Union
and the State Governments. […]”
(emphasis supplied)
62. While considering the abrogation of Article 370, this Court in Article 370
66
of the Constitution, In Re , held that the said Article, was an instance of feature
of ‘asymmetric federalism’. This was explained as follows:
“167. […] The Constitution accommodates concerns specific to a
particular State by providing for arrangements which are specific to
that State. Articles 371-A to 371-J are examples of special
arrangements for different States. This is nothing but a feature of
asymmetric federalism, [State (NCT of Delhi) v. Union of India,
(2023) 9 SCC 1] which Jammu and Kashmir too benefits from by
virtue of Article 370. The State of Jammu and Kashmir does not
have “internal sovereignty” which is distinguishable from the powers
and privileges enjoyed by other States in the country. In asymmetric
federalism, a particular State may enjoy a degree of autonomy
which another State does not. The difference, however, remains
one of degree and not of kind. Different States may enjoy different
benefits under the federal set-up but the common thread is
federalism.”

66
2023 INSC 1058; (2024) 11 SCC 1 [5JB].
Page 44 of 111


(emphasis supplied)
63. What then emerges from this brief discussion on the nature of Indian
federalism, is that the States are entitled to determine the legislative policy
within the legislative spheres constitutionally allotted to them subject to the
constitutional provisions and framework. What can be observed is that this
Court’s understanding of the nature of Indian federalism is not unidimensional.
Rather, the court has consciously adapted its view of the nature of federalism
under the Constitution and tailored its judgments to suit the organic needs of
the Constitution. It would be an error to conclude that the Court has shifted away
from earlier approaches on federalism and adopted new ones. It has only
analyzed the varied constitutional questions posed before it from different
perspectives and commented on aspects of Indian federalism. No one
description - federal, quasi federal, federalism with unitary bias, pragmatic
federalism, cooperative federalism or asymmetrical federalism, captures the
nature of Indian federalism in its entirety, but each contributes to a unique
perspective of understanding the nature of Indian federalism.
64. Whatever be the description of Indian federalism, we think that it would
be against the principle of federalism and a derogation of the powers of the
State legislatures, to permit the Governor to withhold a Bill without following the
dialogic process in the first proviso to Article 200. In our opinion, the first proviso
initiating a constitutional conversation between the institution of the Governor
and the House (or Houses), and the option to reserve the Bill for the
Page 45 of 111


consideration of the President under the substantive part of Article 200,
exemplify the cooperative spirit of Indian federalism, and also bring out different
facets of the checks-and-balances model that the Constitution has envisaged.
We are accustomed to the traditional view of checks-and-balances, where the
decision taken by one institution or branch is set at naught by the other. In our
considered opinion, this understanding must give way to a more nuanced one.
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.
VI. Whether the Governor is bound by the aid and advice tendered by the
Council of Ministers while exercising all the options available with
him when a Bill is presented before him under Article 200 of the
Constitution of India

65. Parties supporting the reference submitted that Article 200(1) was an
instance of the exception to the general rule of ‘aid and advice’ as under Article
163, and consequently, to limit the Governor’s power of exercising discretion,
would be to render Article 163(2) redundant. It was further argued that the
deletion of “ in his discretion ” from the proviso to Article 175 (precursor of Article
200) during the Constituent Assembly Debates, only related to the option of
Page 46 of 111


returning a Bill with comments to the Legislature under the first proviso, and not
to the substantive provision, wherein the Governor still retained discretion.
66. Parties opposing the reference argued that the Governor is a formal
head, and the sole repository of executive power but is incapable of acting,
except on, and according to the advice of their Council of Ministers. Reference
was made to Section 75 of the Government of India Act, 1935 and the
Constituent Assembly Debates, to submit that all residual discretion
contemplated under Section 75, had been intentionally eliminated in draft Article
175 (i.e., Article 200), by dropping “in his discretion” from the substantive part
and first proviso. It was their submission that the constitutional scheme evolved
beyond the Government of India Act, and that discretion, was only retained by
the use of “ in the opinion of the Governor ” in the second proviso (i.e., to refer a
Bill that could amount to derogation of the authority of the High Court, to the
President). Pointing to a mandatory obligation upon the Governor to grant
assent when a Bill has been passed a second time as per the second half of
the first proviso to Article 200, it was argued that the same proviso could not be
construed to confer discretion upon the Governor, in the first half.
67. The text of Article 163 is of relevance to note:
“ 163. Council of Ministers to aid and advise Governor .—
(1) There shall be a Council of Ministers with the Chief Minister as
the head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as
respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the
Page 47 of 111


Governor shall not be called in question on the ground that he ought
or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered
by Ministers to the Governor shall not be inquired into in any court.”

(emphasis supplied)
68. Before we opine on this aspect on whether the Governor is bound by the
aid and advice of the Council of Ministers in exercise of his functions under
Article 200, it is relevant to note the judgments of this Court that have taken a
view on the discretion of the Governor and Article 200. Peculiarly, both sides
rely on the same judgments but offer differing readings, or interpretations of
67
them: (i) Samsher Singh v. State of Punjab and Anr. , and (ii) MP Special
68
Police Establishment v. State of M.P. & Ors. , and (iii) Nabam Rebia and
Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and
69
Ors . Though the aforementioned three judgments arose from facts not
relating to the discretion of the Governor vis-à-vis Article 200, their observations
as Constitution Benches of this Court, are still of relevance in interpreting the
provisions.
69. The judgment in Samsher Singh (supra) arose from appeals relating to
the appointment of persons other than district judges to the State Judicial
Services under Article 234. On the discretion exercised by the Governor, it was
held that:
“54. The provisions of the Constitution which expressly require
the Governor to exercise his powers in his discretion are contained
in articles to which reference has been made. To illustrate, Article

67
1974 INSC 154; (1974) 2 SCC 831 [7JB], paragraph 54-57.
68
2004 INSC 642; (2004) 8 SCC 788 [5JB].
69
2016 INSC 526; (2016) 8 SCC 1 [5JB], paragraph 143, 147-151, 155, 257, 300.
Page 48 of 111


239(2) states that where a Governor is appointed an administrator
of an adjoining Union territory he shall exercise his functions as
such administrator independently of his Council of Ministers. The
other articles which speak of the discretion of the Governor are
paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-
A(1)(b), 371-A(1)(d) and 371-A(2)(b) and 371-A(2)(f). The discretion
conferred on the Governor means that as the constitutional or
formal head of the State the power is vested in him. In this
connection, reference may be made to Article 356 which states that
the Governor can send a report to the President that a situation has
arisen in which the government of the State cannot be carried on in
accordance with the provisions of this Constitution. Again Article
200 requires the Governor to reserve for consideration any Bill
which in his opinion if it became law, would so derogate from the
powers of the High Court as to endanger the position which the High
Court is designed to fill under the Constitution.
55. In making a report under Article 356 the Governor will be
justified in exercising his discretion even against the aid and advice
of his Council of Ministers. The reason is that the failure of the
constitutional machinery may be because of the conduct of the
Council of Ministers. This discretionary power is given to the
Governor to enable him to report to the President who, however,
must act on the advice of his Council of Ministers in all matters. In
this context Article 163(2) is explicable that the decision of the
Governor in his discretion shall be final and the validity shall not be
called in question. The action taken by the President on such a
report is a different matter. The President acts on the advice of his
Council of Ministers. In all other matters where the Governor acts in
his discretion he will act in harmony with his Council of Ministers.
The Constitution does not aim at providing a parallel administration
within the State by allowing the Governor to go against the advice
of the Council of Ministers.
56. Similarly Article 200 indicates another instance where the
Governor may act irrespective of any advice from the Council of
Ministers. In such matters where the Governor is to exercise his
discretion he must discharge his duties to the best of his judgment.
The Governor is required to pursue such courses which are not
detrimental to the State.
57. For the foregoing reasons we hold that the President or the
Governor acts on the aid and advice of the Council of Ministers with
the Prime Minister at the head in the case of the Union and the Chief
Minister at the head in the case of State in all matters which vests
in the Executive whether those functions are executive or legislative
in character. Neither the President nor the Governor is to exercise
the executive functions personally. The present appeals concern
the appointment of persons other than District Judges to the Judicial
Services of the State which is to be made by the Governor as
contemplated in Article 234 of the Constitution after consultation
with the State Public Service Commission and the High Court.
Page 49 of 111


Appointment or dismissal or removal of persons belonging to the
Judicial Service of the State is not a personal function but is an
executive function of the Governor exercised in accordance with the
rules in that behalf under the Constitution.”
(emphasis supplied)
70. In M.P. Special Police Establishment (supra), this Court was considering
the legality of grant of sanction by the Governor under Section 197 of the
Criminal Procedure Code, for the prosecution of two ministers accused under
the Prevention of Corruption Act, 1988, after the Council of Ministers had
refused sanction on the ground that no prima facie case had been made out in
the Lokayukta report. On the discretion that is exercisable by the Governor
under the Constitution, this Court held that:
“ 11. Mr Sorabjee submits that even though normally the
Governor acts on the aid and advice of the Council of Ministers,
but there can be cases where the Governor is, by or under the
Constitution, required to exercise his function or any of them in his
discretion. The Constitution of India expressly provides for
contingencies/cases where the Governor is to act in his discretion.
Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2)
and 18(3) of the Sixth Schedule are some of the provisions.
However, merely because the Constitution of India expressly
provides, in some cases, for the Governor to act in his discretion,
can it be inferred that the Governor can so act only where the
Constitution expressly so provides? If that were so then sub-clause
(2) of Article 163 would be redundant. A question whether a matter
is or is not a matter in which the Governor is required to act in his
discretion can only arise in cases where the Constitution has not
expressly provided that the Governor can act in his discretion. Such
a question cannot arise in respect of a matter where the Constitution
expressly provides that the Governor is to act in his discretion.
Article 163(2), therefore, postulates that there can be matters where
the Governor can act in his discretion even though the Constitution
has not expressly so provided.

12. […] Thus, as rightly pointed out by Mr Sorabjee, a seven-Judge
Bench of this Court has already held that the normal rule is that
the Governor acts on the aid and advice of the Council of Ministers
and not independently or contrary to it. But there are exceptions
under which the Governor can act in his own discretion. Some of
the exceptions are as set out hereinabove. It is, however, clarified
Page 50 of 111


that the exceptions mentioned in the judgment are not exhaustive.
It is also recognised that the concept of the Governor acting in his
discretion or exercising independent judgment is not alien to the
Constitution. It is recognised that there may be situations where by
reason of peril to democracy or democratic principles, an action
may be compelled which from its nature is not amenable to
Ministerial advice. Such a situation may be where bias is inherent
and/or manifest in the advice of the Council of Ministers. ”

(emphasis supplied)
71. In Nabam Rebia (supra), this Court referred, and adopted, the
observations of the Report of the Commission on Centre-State Relations
70
(Punchhi Commission ) relating to the Governor’s discretionary power. Parties
71
on both sides before us, referred to various paragraphs in Nabam Rebia . In
that case, the majority (through Khehar, J.) opined on the dual nature of
legislative and executive functions of the Governor, with specific reference to
Article 154, 161, 163, and 166 on the executive nature of power, and Article
168, 158, 200, 201, 213 and 174 in relation to the legislative role. Though the
case was particularly on the responsibility under Article 163, this Court
undertook a comprehensive review of the Governor’s role and powers under
the Constitution. On the issue of Article 200, and the discretion of the Governor,
the majority opinion extracted the Justice M.M. Punchhi Commission Report on
“Constitutional Governance and the Management of Centre-State Relations”
and specifically affirmed:
“ 151. The important observations in the Justice M.M. Punchhi
Commission Report, with reference to Article 163(2), are
contained in Para 4.5. Relevant extract of the same is
reproduced below:

70
Report of the Commission on Centre-State Relations (March 2010)
< https://interstatecouncil.gov.in/report-of-the-commission-on-centre-state-relations/ >.
71
Nabam Rebia (supra) paragraphs 147-154, 257, and 300.
,
Page 51 of 111


“4.5. … Article 163(2) gives an impression that the
Governor has a wide, undefined area of discretionary
powers even outside situations where the Constitution
has expressly provided for it. Such an impression
needs to be dispelled. The Commission is of the view
that the scope of discretionary powers under Article
163(2) has to be narrowly construed, effectively
dispelling the apprehension, if any, that the so-called
discretionary powers extends to all the functions that
the Governor is empowered under the Constitution.
Article 163 does not give the Governor a general
discretionary power to act against or without the advice
of his Council of Ministers. In fact, the area for the
exercise of discretion is limited and even in this limited
area, his choice of action should not be nor appear to
be arbitrary or fanciful. It must be a choice dictated by
reason, activated by good faith and tempered by
caution .
The Governor's discretionary powers are the following
: to give assent or withhold or refer a Bill for Presidential
assent under Article 200; the appointment of the Chief
Minister under Article 164; dismissal of a Government
which has lost confidence but refuses to quit, since the
Chief Minister holds office during the pleasure of the
Governor; dissolution of the House under Article 174;
Governor's report under Article 356; Governor's
responsibility for certain regions under Articles 371-A,
371-C, 371-E, 371-H, etc. These aspects are now
considered below :”
(emphasis supplied)
152. We are of the considered view that the inferences drawn in

the Justice M.M. Punchhi Commission Report extracted
hereinabove, are in consonance with the scheme of the functions
and powers assigned to the Governor, with reference to the
executive and legislative functioning of the State, and more
particularly with reference to the interpretation of Article 163. We
endorse and adopt the same, as a correct expression of the
constitutional interpretation, with reference to the issue under
consideration.”
(emphasis supplied)

72. The Court went on to conclude:
“154. We are, therefore, of the considered view that insofar as the
exercise of discretionary powers vested with the Governor is
concerned, the same is limited to situations, wherein a constitutional
provision expressly so provides that the Governor should act in his
own discretion. Additionally, a Governor can exercise his functions
Page 52 of 111

has powers that are either specifically delineated, or implied in the Constitution:

We are of in agreement with the view affirmed in Nabam Rebia that Article 200
of the Constitution confers discretionary powers on the Governor. We find no
compelling reason to deviate from this position.
74. The view expressed in this judgment has been duly followed by this
72
Court, thereafter, in B.K. Pavitra v. Union of India . Having noted these
precedents, we need to analyze as to how these precedents inform the present
debate and also as to how the judgment in State of Tamil Nadu (supra) reflects
on these precedents.

72
2019 INSC 671; (2019) 16 SCC 129, see paragraphs 66, 67, 71.
Page 53 of 111


75. In State of Tamil Nadu (supra), this Court appears to notice paragraph 54
to 56 from the opinion of Ray, J. speaking for the majority in Samsher Singh
(supra), and reads it as follows:

76. The judgment further heavily relies on paragraphs 100, 113, 139 and 154
from the opinion of Iyer, J . (speaking for himself and Bhagwati, J.), where it was
observed:

73
State of Tamil Nadu (supra), paragraph 308.
Page 54 of 111


77. The Court in State of Tamil Nadu (supra), cites this view on the “ limited
nature of the scope of exercise of discretion by the President and the
74
Governor ” with approval. Pertinently, the view propounded by Iyer, J, does not
form the majority in Samsher Singh (supra), and is in fact contrary to the
provisions discussed in the majority opinion. In light of this Court’s judgment in
Nabam Rebia (supra) – specifically the majority opinion authored by Khehar, J.,
and Lokur, J.’s concurring opinion, such a view cannot be held to be the correct
position of law.
75
78. Therefore, the conclusion arrived at in State of Tamil Nadu (supra) that
the 7-judge bench in Samsher Singh (supra) held that the second proviso to
Article 200, is the only instance that contemplates discretion of the Governor,
cannot be relied upon as good law. We are respectfully unable to countenance

74
Paragraph 309.
75
“ 456.16.3. The decision in Samsher Singh [ Samsher Singh v. State of Punjab , (1974) 2 SCC 831: 1974
SCC (L&S) 550] illustrated certain provisions of the Constitution which expressly required the Governor
to exercise his powers in his discretion. The second proviso to Article 200 was one such illustration. Thus,
it is amply clear from the dictum in Samsher Singh [ Samsher Singh v. State of Punjab , (1974) 2 SCC 831
: 1974 SCC (L&S) 550] that the seven-Judge Bench, after taking into consideration the scheme of Article
200, observed that the second proviso to Article 200 was the only instance where the Governor had been
entrusted with the power to act in his own discretion. Subsequent Constitution Bench decisions in M.P.
Special Police [ M.P. Special Police Establishment v. State of M.P. , (2004) 8 SCC 788 : 2005 SCC (Cri)
1] and Nabam Rebia [ Nabam Rebia & Bamang Felix v. Arunachal Pradesh Legislative Assembly , (2016)
8 SCC 1] clarified that besides the instances where the Governor has been expressly conferred with
discretionary powers, there may still be certain exceptional circumstances wherein it would be legitimate
for him to act in his own discretion as indicated by us in paras 312 to 314. However, the general rule
remains that the Governor acts upon the aid and advice of the State Council of Ministers.
456.16.5 . The observations made in B.K. Pavitra [ B.K. Pavitra v. Union of India , (2019) 16 SCC 129 :
(2022) 2 SCC (L&S) 768] that “ a discretion is conferred upon the Governor to follow one of the courses
of action enunciated in the substantive part of Article 200 ” do not take into consideration the decision
of Samsher Singh [ Samsher Singh v. State of Punjab , (1974) 2 SCC 831 : 1974 SCC (L&S) 550] and is
for this reason per incuriam. It failed to consider that Article 200 which had been duly considered
by Samsher Singh [ Samsher Singh v. State of Punjab , (1974) 2 SCC 831 : 1974 SCC (L&S) 550] was
found to contain only one instance where the exercise of discretion was expressly provided, that being
the second proviso thereto. Besides this, as already aforestated, it failed to notice the removal of the
expression “ in his discretion ” from Section 75 of the GoI Act, 1935 which ultimately culminated into Article
200.”
Page 55 of 111


such a reading of Samsher Singh (supra) and find that the decision in State of
Tamil Nadu (supra) is based on a partial reading of these three judgments.
79. We must also take cognisance of the fact that the Constitution does not
explicitly state in which provisions, discretion is contemplated for the Governor
to exercise. In fact, in the Constitution as it originally stood, the word ‘discretion’
is conspicuously absent in relation to the Governor. Any provision that
contemplates discretion explicitly in the Constitution as on date, is a result of
subsequent amendment to the Constitution. These amended or newly inserted
provisions do not relate to matters of power to be exercised across the country,
but rather in special circumstances in relation to specific States and Areas –
namely, Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2)
and 18(3) of the Sixth Schedule.
80. This Court has read discretion into the function of the Governor under
76
the Constitution by way of its judgments . Our usage of the word ‘function’ is
done so deliberately, in contradistinction to ‘power’ because a function carries
with it, implicitly, a constitutional obligation. Thus, we are of the considered
opinion that the Constitution requires the Governor, in exercise of his ‘function’
use ‘discretion’ in certain circumstances, given the manner in which our
constitutionalism is practiced, or worked. This has been influenced by numerous
instances. In M.P. Special Police Establishment (supra), this Court in fact, held

76
Governor’s power call for a floor test when the Council of Ministers has lost the confidence of the
House as held in Shivraj Singh Chouhan v. M.P. Legislative Assembly, 2020 INSC 335, (2020) 17 SCC
1; Nabam Rebia, MP Establishments, Samsher Singh (supra).
Page 56 of 111


that the Governor is entitled to use his discretion, in a situation beyond what is
explicitly mentioned in the text of the Constitution itself, because of the context
in which the Governor’s function to grant sanction for prosecution arises.
81. We are of the opinion that from the above discussion, the following
position of law clearly emerges: Firstly , ordinarily, the Governor exercises his
functions in accordance with the aid and advice tendered by the Council of
Ministers. Secondly , the Constitution itself provides that the Governor may
discharge certain functions upon his discretion, and without being bound by the
aid and advice tendered by the Council of Ministers. Thirdly , the circumstances
or occasions where the Governor is to discharge his functions without being
bound by the aid and advice of the Council of Ministers, are either expressly
provided, or through necessary implication where the constitutional context
requires exercise of this discretion.
82. In such circumstances, it is for this Court to determine from the spirit and
text of the Constitution, and from the manner in which the Constitution has been
practiced, to see whether the Governor requires to be conferred discretion in
exercise of his function under Article 200. We are of the firm view, that the
Governor must be given this constitutional option, i.e., to exercise his discretion
under Article 200, for the reasons enumerated herein.
83. The Constitution itself provides in as many as five provisions – on law-
77
making relating to acquisition of estates , giving effect to certain directive

77
First proviso to Article 31A.
Page 57 of 111


78
principles , where there is inconsistency between law made by Parliament and
79
State Legislatures , exemption from taxation by States in respect of water or
80 81
electricity in certain cases , and during financial emergency – that such law,
having been reserved for the assent of the President, will not take effect until
such assent is granted (as prescribed under Article 201). The act of ‘ having
82
been reserved ’ , is a function that can be performed by the Governor alone, to
the exclusion of others. It is neither in the hands of the Legislature nor the
Executive. The Governor is the sole authority to reserve a Bill for the
consideration of the President under Article 200. For a moment, if it is assumed
that there is no discretion, then even if advice is tendered contrary to the written
text of the Constitution, the Governor will be bound by such advice. If that be
83
so, the Governor and the President ultimately fail in their duty to protect and
defend the Constitution because the President’s power of assent is hinged on
the Governor’s power to reserve the Bill for the consideration of the President.

78
Proviso to Article 31C.
79
Article 254 (2).
80
Article 288 (2).
81
Article 360.
82
These provisions contain similar phrasing in their proviso as indicated supra. See for instance, the
first proviso to Article 31A: “ Provided that where such law is a law made by the Legislature of a State,
the provisions of this article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent: ”
83
The Governor under Article 159 affirms on oath as follows:
“ I, A. B., do swear in the name of God that I will faithfully execute the solemnly affirm office of
Governor (or discharge the functions of the Governor) of ………(name of the State) and will to
the best of my ability preserve, protect and defend the Constitution and the law and that
I will devote myself to the service and well-being of the people of ..……(name of the State).”
Similarly, the President under Article 60, affirms on oath as follows:
“ I, A.B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of
President (or discharge the functions of the President) of India and will to the best of my
ability preserve, protect and defend the Constitution and the law and that I will devote
myself to the service and well-being of the people of India. ”.
Page 58 of 111


Viewed from both angles, the Constitution must be read as conferring on the
Governor this discretion.
84. The Indian Constitution is replete with examples that demonstrate the
carefully balancing of functions and powers between constitutional
functionaries, to preserve India’s federal character. Consider, for instance, the
84
proviso to Article 304 which stipulates that no Bill or amendment imposing
reasonable restrictions on the freedom of trade, commerce or intercourse, with
or within a State, can be introduced or moved in the said State Legislature,
without the “ previous sanction of the President ”. This provision, thus,
contemplates presidential approval by way of intervention, before the law is
introduced in the State Legislature and demonstrates the unique manner in
which Indian federalism plays out, and is preserved, in our Constitutional
scheme. Yet another provision which can demonstrate the federal feature of the
Indian Constitution qua the President’s functions and the Legislature (both
85
Union and States), is Article 364 which preserves a specific power with the

84
“ 304 . Restrictions on trade, commerce and intercourse among States . –
Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law—
(a) impose on goods imported from other States [or the Union territories] any tax to which similar goods
manufactured or produced in that State are subject, so, however, as not to discriminate between goods
so imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within
that State as may be required in the public interest:
Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved
in the Legislature of a State without the previous sanction of the President.”
85
. . –
364 Special provisions as to major ports and aerodromes
(1) Notwithstanding anything in this Constitution, the President may by public notification direct that as
from such date as may be specified in the notification—
(a) any law made by Parliament or by the Legislature of a State shall not apply to any major port or
aerodrome or shall apply thereto subject to such exceptions or modifications as may be specified in the
notification, or
(b) any existing law shall cease to have effect in any major port or aerodrome except as respects things
done or omitted to be done before the said date, or shall in its application to such port or aerodrome
have effect subject to such exceptions or modifications as may be specified in the notification.
Page 59 of 111


President to exempt major ports and aerodromes from the application of a law
(whether made by the Parliament, or State Legislature), or be subject to certain
modifications or exceptions as notified by the President.
85. The provisions which make the law subject to the President’s assent, if
so reserved for his consideration, are in no manner an exhaustive list. Given
the manner in which our Constitution functions and must be read in our federal
system, there are numerous other circumstances involving sharing of
resources, taxation, etc. where a Governor may seek the President’s
consideration. As pointed out earlier in this opinion as well, it is reiterated that
the Indian Constitution is unique, insofar as it must deal with distribution of
legislative powers between the Union and the State on various counts, including
natural resources, trade, commerce, and taxation. Our constitutional history
itself contains examples wherein the State government has passed a law,
contrary to decisions of this Court, and further impinging on the rights of other
States, in the sharing of natural resources. Reference may be made to the case
86
in Punjab Termination of Agreement Act, 2004, In Re and Cauvery Water
87
Disputes Tribunal, In Re .
86. In such a context, the role of the President in protecting and defending
the Constitution – in binding the Union as a cohesive unit – is crucial. It is

(2) In this article—
(a) “major port” means a port declared to be a major port by or under any law made by Parliament or
any existing law and includes all areas for the time being included within the limits of such port;
(b) “aerodrome” means aerodrome as defined for the purposes of the enactments relating to airways,
aircraft and air navigation.
86
2016 INSC 1018; (2017) 1 SCC 121 [5JB].
87
1991 INSC 304; 1993 Supp. (1) SCC 96 (2) [5JB].
Page 60 of 111


reiterated, that the President will be unable to exercise his functions, until the
Governor a priori reserves the Bill for his assent. It is unlikely that the Council
of Ministers – without whose support the Bill could not have been passed by the
Legislature – will advise the Governor, to return a Bill to the Legislature, or refer
it to the President, under Article 200, thus frustrating the operation of numerous
provisions of this Constitution, including the President’s powers. In such a
scenario, it is unfathomable to hold that the Governor is not conferred with
discretion, under Article 200.
87. We are also of the considered opinion that the inclusion of the phrase “ in
the opinion of the Governor ” in the second proviso to Article 200 is but a
definitive expression of the fact that Governor does enjoy discretion in
discharging his functions under Article 200. Either the Governor enjoys
discretion, or he does not. There is no interpretative space for discretion while
exercising some options of Article 200, and no discretion in others. A limited
application of this phrase to only the second proviso is neither logical, nor in
accord with the Constitutional scheme. We find it difficult to agree with the
submission canvassed by the parties opposing the reference that a limited
interpretation must be placed on the aforesaid phrase. This second proviso is
clearly a qualification, or condition of, and not an exception to the exercise of
discretion contemplated under the substantive part of Article 200.
Page 61 of 111


88. For these same reasons, the conclusion in State of Tamil Nadu (supra)
88
at paragraph 334.1 where it was held that the only situation in which discretion
has been explicitly laid down in the second proviso to Article 200, is erroneous.
89
Further, in paragraph 334.2 and sub-paragraph (i) , the characterisation that
the Governor’s act of reserving a Bill pertaining to the Articles identified above
[namely, Article 31A, 31C, 254(2), 288(2), etc.] is one where exercise of
discretion is by “ necessary implication ”, is on the face of it, textually untenable.
89. It is but obvious, that any Bill that has been reserved by the Governor for
the consideration of the President, cannot become law until such assent is
given. Therefore, the deliberate inclusion of the phrasing “ provisions of this
article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent ” in Articles 31A proviso,
31C proviso, Article 254(2), Article 288(2) and Article 360, is significant. The
framers of the Constitution cannot be presumed to have employed this wording
superfluously, to simply mean that the President’s assent was a precondition
only if and when the Bill is reserved for his consideration. Rather, the deliberate

88
“334.1. Where the Governor is by or under the Constitution required to act in his discretion. The only
situation in which such exercise of discretion has been explicitly laid down in the Constitution is the
second proviso to Article 200, that is, where, in the opinion of the Governor, the Bill, if assented to,
would so derogate from the powers of the High Court as to endanger the position which the High Court
is designed to fill by the Constitution;”
89
“334.2. Where the Governor is by necessary implication required to act in his own discretion. This
would include:
( i ) Where a Bill attracts such a provision of the Constitution which requires the mandatory assent of the
President for securing immunity or making the law enforceable. Exercise of discretion is permissible in
these cases. For instance, Article(s) 31-A, 31-C, 254(2), 288(2), 360(4)( a )( ii ), etc.
( ii ) Situations where the exceptional conditions as described in M.P. Special Police [ M.P. Special Police
Establishment v. State of M.P. , (2004) 8 SCC 788 : 2005 SCC (Cri) 1] and Nabam Rebia [ Nabam Rebia
& Bamang Felix v. Arunachal Pradesh Legislative Assembly , (2016) 8 SCC 1] are applicable i.e. the
State Council of Ministers has disabled or disentitled itself; possibility of complete breakdown of the rule
of law or by reason of peril to democracy/democratic principles, respectively, as a consequence of
which an action may be compelled which, by its nature is not amenable to ministerial advice.”
Page 62 of 111


use of this phrasing indicates that these are instances where the Governor must
reserve the Bill for the President’s consideration, and without whose assent,
these Bills cannot become law. The clear intent behind the explicit phrasing in
these provisions, is to demonstrate that the Governor is obliged to exercise his
discretion and reserve such Bills for the assent of the President.
90. In light of the reasoning elaborated hereinabove, we are of the considered
opinion that contrary to the articulation in State of Tamil Nadu (supra) (that of
‘necessary implication’) these provisions are instances where the Governor, is
explicitly , obligated and required to discharge his function of reserving the said
Bill for the consideration of the President, without whose assent, such Bill
cannot become law.
91. On the issue of discretion of the Governor, it is also relevant to point out
that prior to the insertion of the Tenth Schedule to the Constitution, it was a
realistic possibility that Bills could be passed without the support of the Council
of Ministers. Such a situation is virtually impossible now. Thus, a scenario
wherein the Council of Ministers would tender aid and advice to the effect that
the Governor must return a Bill for reconsideration, or reserve it for the
President’s assent, is not conceivable; rather, the converse, is inevitable, i.e., if
the Governor was bound by the aid and advice of the Council of Minister, all
Bills would be granted assent, rendering the option of referring to the President,
or returning with comments, nugatory.
Page 63 of 111


92. We are acutely aware, that in the Constituent Assembly Debates on
30.07.1949, Dr. B.R. Ambedkar, while introducing an amendment to the proviso
to Article 175 (now Article 200) made the remark that:
“ it was felt then that in a responsible government there can be no
room for the Governor acting on discretion. Therefore, the new
90
proviso deletes the word ‘in his discretion” .

Shri T. T. Krishnamachari also responded stating that the Governor should not
91
be conferred any discretionary power.
93. It is noteworthy that merely days prior, on 01.06.1949, B. R. Ambedkar
while discussing the draft Article 143 (precursor to Article 163 now) stated that
responsible government in no way deviates from conferral of discretion on the
Governor:
“Therefore, as I said, having stated that there is nothing
incompatible with the retention of the discretionary power in the
Governor in specified cases with the system of responsible
Government, the only question that arises is, how should we
provide for the mention of this discretionary power? It seems to
me that there are three ways by which this could be done. One
way is to omit the words from article 143 as my honourable
Friend, Pandit Kunzru, and others desire and to add to such
articles as 175, or 188 or such other provisions which the House
may hereafter introduce, vesting the Governor with the
discretionary power, saying notwithstanding article 143, the
Governor shall have this or that power. The other way would be
to say in article 143, “that except as provided in articles so and
so specifically mentioned— article 175, 188, 200 or whatever
they are”. But the point I am trying to submit to the House is that
the House cannot escape from mentioning in some manner that
92
the Governor shall have discretion.”
(emphasis supplied)

90 th
Volume IX, 30 July 1949.
91 th
Volume IX, 30 July 1949.
92
Constituent Assembly Debates dt. 01.06.1949 (Vol. VIII, p. 501).
Page 64 of 111


It was recognised that an illustrative list was not possible at that stage, since
discussion on various articles (including Article 200) that contemplated
discretion of the Governor, had not yet transpired. In any event, the Constituent
Assembly Debates in relation to Article 200 (draft Article 175) do not reflect the
crucial aspect that the President, under the text of the Constitution, exercises
powers over granting assent to Bills passed by the State Legislature, at least in
93
certain situations enumerated above . We do not think that the observations in
the Constituent Assembly Debates can bind us to the interpretation suggested
by the parties opposing the reference.
94. We are conscious that a government run within the four corners of a
written Constitution, must be responsible. Having already held that the
Governor does not have powers simpliciter to withhold, we find that the
Governor has discretion in the context of referring a Bill for the consideration of
the President, or for returning the Bill to the Legislature with his comments. We
do not think that this interpretation confers any unfettered powers on the
Governor. In fact, it does not in any way deviate from the concept of a
responsible constitutional government.
95. We have already held that the dialogic process either contemplated under
Article 200, or the act of referral under Article 201, are both parts of the federal
scheme of the Constitution, and also a part of the system of checks and
balances. In that view of the matter, the conferral of discretion on the Governor

93
Article 31A first proviso, Article 31C proviso, Article 254(2), Article 288(2), Article 360 of the
Constitution.
Page 65 of 111


to not be bound by the aid and advice of the Council of Ministers, and to reserve
the matter for the consideration of the President, or return it to the Legislature
with comments, is in no way antithetical to the fundamental premise of the
Constitution.
96. Much has been argued on the role of Governors and the President, and
the Cabinet form of governance that ‘Parliamentary democracy’ consists of, by
parties opposing the reference. They argue that this system of governance
abhors conferral of discretion on the Governor. We are in agreement that it is
the elected government (the Cabinet) that should be in the driver’s seat, and
that there cannot be two executive power centres in the State, as held in Ram
94
Jawaya Kapur & Ors. v. State of Punjab . However, we find that these
arguments relegating the Governor and President to a perfunctory role, i.e.,
merely the formal head comparable to the Crown in England, oversimplifies the
complex scheme of our written Constitution. The constitutional vision is of a
responsible government which is not merely synonymous with the Cabinet but
is one where the Governors and the President have been bound by specific
functions and roles in our written Constitution, unlike the Crown.
97. We clarify, as we have already held, that the Governor has no option to
withhold a Bill simpliciter. Therefore, it is not that the discretion so conferred,
allows a situation wherein the Governor could frustrate a Bill in perpetuity. The
three clear options that he has, is to grant assent, withhold assent and return

94
1955 INSC 27; (1955) 1 SCC 553 [5JB].
Page 66 of 111


the Bill to the legislature for reconsideration, or reserve the Bill for consideration
of the President, and he can exercise his discretion in choosing any of these
three options, having given due regard to the aid and advice tendered by the
Council of Ministers, and keeping in mind his duty – to protect and defend, the
Constitution.
VII. Options of the Governor under Article 200 after the Legislative
Assembly presents the Bill to the Governor after reconsideration
under the first proviso

98. As we have reasoned earlier, as per the substantive provision, and first
proviso of Article 200, the Governor at the first instance has three options – to
assent, reserve the Bill for the consideration of the President, or withhold and
return the Bill with a message for reconsideration of the State Legislature. The
exercise of discretion in discharging his function at this first stage, is essential
to initiate the dialogic process between the constitutional functionaries. The
second proviso reaffirms this exercise of discretion, and specifically lays out a
situation wherein if “ in his opinion ” the Governor finds that the Bill proposed may
derogate from the powers of the High Court or endanger its position as per the
Constitutional scheme, assent should not be granted, and the same shall be
reserved for the President’s consideration. However, another aspect of
interpretation of Article 200 that arises for our consideration, is the options that
are available to the Governor after he has, at the first instance, exercised his
discretion and chosen to withhold a Bill and return it to the State Legislature
Page 67 of 111


with a message, as prescribed under the first half of the first proviso to Article
200. We find that a discussion on this aspect, is warranted.
99. 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. Therefore, when the Bill is returned to the Governor, he
is still left with two options – either to grant his assent, or to refer it to the
President for his consideration. This power to reserve a Bill for the President’s
consideration, is irrespective of whether the Bill is returned by the Legislature in
its amended or unamended form.
100. An additional reason for deliberately providing this play in the joints in
Article 200 is to safeguard against the tagging of amendments, or material
changes, that the Legislature may insert, upon receiving a Bill back from the
Governor with comments. 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. Such a reading is fortified
by the second proviso, and the various provisions referred to earlier [Article 31A,
Page 68 of 111


31C, Article 228(2), etc.], which require the Governor to reserve the Bill for the
President’s consideration. This is irrespective of whether the Governor finds
these provisions are attracted when the Bill is presented for the first time, or
when it is returned from the Legislature after having considered his comments,
for the second time.
101. The reading of the first proviso as canvassed by parties opposing the
reference – that the Governor is left with only one option, i.e., to grant assent,
upon receiving a Bill back from the Legislature the second time is textually
untenable. This would further militate against the content of the second proviso,
which contemplates the President’s consideration specifically when a Bill may
potentially affect the powers of the High Court, and its position or function, within
the constitutional scheme. Therefore, we are of the firm opinion that the reading
of Article 200, which recognises both options – to grant assent, or reserve the
Bill for the President – further strengthens, and increases the potential for the
dialogic and consultative process that our Constitution values at its core, rather
than retracting from it.
102. As per parties opposing the reference, a Bill can be returned only once
at the option of the Governor, or the President (under the first provisos to
Articles 200 and 201, respectively). This would imply that the first proviso to
Article 200 is of the same nature as the proviso to Article 201. This is textually
incorrect for two reasons: (1) “ shall not withhold therefrom ” is absent in Article
201; and (2) the stipulation of six months period on the Legislature to reconsider
Page 69 of 111


the Bill, is absent in Article 200. This demonstrates that although the return of
the Bill by the President under the first proviso of Article 201 is routed through
the Governor, the return of the Bill by the two constitutional functionaries are
qualitatively distinct. This difference is not just in the institutions involved in the
dialogic process, but also in the response of the Legislature, and the effect
thereupon.
VIII. Re : Questions 5, 7, 10 and 11 relating to the prescription of time limits
on the Governor and the President for exercising their discretion
under Articles 200 and 201, and the issue of deemed assent

103. Question 5 and Question 7 in the Presidential Reference, pertain to
prescription of timelines for the Governor (under Article 200), and the President
(under Article 201) to exercise their functions. A natural consequence of the
reasoning pertaining to those questions, will be the answer to Question 10 on
‘deemed assent’. Hence, we find it appropriate to take up these three questions
together.
104. Parties in favour of the reference argued that, in the absence of any
explicitly prescribed time limit in the provision, it would not be open to the Court
to impliedly read in a timeline. Reliance was placed primarily on the decision in
95
Purushothaman Nambudiri v. State of Kerala . A distinction was made
96
between the various provisions of the Constitution which do in fact prescribe

95
1961 INSC 331; 1961 SCC OnLine SC 361 [5JB]
96
Articles 22, 62, 68, 75, 83, 85, 101, 108, 109, 123, 164, 172, 174, 190, 197, 198, 210, 224, 213, 239B,
240, 243E, 243U, 243ZF, 243ZL, 243ZM, 243ZN, 243ZQ, 243ZT, 249, 250, 279A, 280, 336, 337, 340,
343, 344, 349, 352, 354, 356, 360, 369, 372, 372A, 373, 392, Sixth Schedule-paragraph 15, Sixth
Schedule-Paragraph 16, Tenth Schedule-Paragraph 2.
Page 70 of 111


a timeline on one hand, and Articles 200 and 201 on the other, to submit that
the absence of timelines in the latter was by way of deliberate constitutional
design. Counsel laboured extensively to establish that the prescription of
timelines in State of Tamil Nadu (supra) was erroneous in light of earlier case
law.
105. On the other hand, the parties opposing the reference submitted that this
was no longer an issue that required consideration, given the reasoning and
decision in State of Tamil Nadu (supra). They argued that this Court in State of
97
Telangana v. Governor of Telangana , and State of Punjab (supra) had
interpreted “ as soon as possible ” in Article 200 to convey a constitutional
imperative of expedition, which necessarily had to mean that a Bill could not be
kept pending indefinitely without any action – which the prescription of timelines,
suitably addressed. They extensively argued that such timelines were not akin
to amending the text of the Constitution, because no consequences emanate
on the non-compliance of these timelines by the Governor – such as automatic
assent, and rather, it only opens the door for judicial review. Reliance was
placed on the findings of the Sarkaria Commission (Chapter V), and Punchhi
Committee Report which prescribed a maximum period of six months after a
Bill was presented, as a time limit on the Governor under Article 200.
106. The consideration of prescribing timelines to actions by the President
under Article 111 (draft Article 91), fell before the Constituent Assembly as well.

97
(2024) 1 SCC 405 [2JB].
Page 71 of 111


The Assembly specifically rejected the concept of a timeline wherein Dr. B.R.
Ambedkar’s amendment to delete “six weeks” from the draft clause of Article
98
91, was accepted . Despite H.V. Kamath’s remarks in support of a fixed
timeline to encourage prompt action, there is conspicuous absence of any
99
timeline in Article 111 of the Constitution, as adopted in 1950 . A similar logic
would apply to Article 200, in relation to the Governor’s function.
107. A reading of the text of Articles 200 and 201 clarifies that the only
temporal aspect tied to the constitutional functionaries so referred, in these
provisions are as follows: firstly , that if the Governor finds reason to withhold
and therefore, return the Bill with his comments for the consideration of the
100
State Legislature, he is required to do so “ as soon as possible ” as per the
first proviso to Article 200; secondly , that once the President instructs the
Governor to return a Bill to the State Legislature with the former’s comments, it
is incumbent upon the Legislature, in fact, to “ reconsider it accordingly within a
101
period of six months from the date of receipt of such message ” .
108. We have already held that the proviso to Article 200 – which contains the
phrase “ as soon as possible ” – is a condition , or a qualification , on the
substantive part of the Article 200, which relates to the Governor’s option to
withhold. Consequently, the afore-stated phrase cannot condition or qualify the

98 Constituent Assembly Debates dated 20.05.1949 (Vol. VIII, p. 192), discussion on Article 111
(draft Article 91).
99
Ibid . at p. 194.
100
First proviso to Article 200.
101
Proviso to Article 201.
Page 72 of 111


other two options. In any event, the said phrase cannot translate into the strict
imposition of timelines on the Governor, for the exercise of his discretion and
carrying out his functions, under Article 200.
109. That the Constituent Assembly chose, at one place (i.e., the proviso to
Article 201) to explicitly impose a definite timeline (for the Legislature to
reconsider the Bill so returned), but no such imposition is made on the other
functionaries of the Governor or the President, is significant. Implicit in this
distinction, is also the institutional respect that the Constitution contemplates,
and affords, to the constitutional functionaries of the Governor, and President.
110. Furthermore, judicial precedent on the aspect of timelines is clear, and
merits reference. In Nambudiri (supra), a Constitution Bench of this Court held
the absence of an explicit timeline in Articles 200 and 201 for the Governor and
President to exercise their function to be significant:
“15. It is clear that if a Bill pending the assent of the Governor or the
President is held to lapse on the dissolution of the Assembly it is not
unlikely that a fair number of Bills which may have been passed
by the Assembly, say during the last six months of its existence,
may be exposed to the risk of lapse consequent on the dissolution
of the Assembly, unless assent is either withheld or granted before
the date of the dissolution. If we look at the relevant provisions of
Articles 200 and 201 from this point of view it would be significant
that neither Article provides for a time limit within which the
Governor or the President, should come to a decision on the Bill
referred to him for his assent. Where it appeared necessary and
expedient to prescribe a time limit the Constitution has made
appropriate provisions in that behalf (vide : Article 197(1)(b) and
(2)(b)). In fact the proviso to Article 201 requires that the House to
which the Bill is remitted with a message from the President shall
reconsider it accordingly within a period of six months from the date
of the receipt of such message. Therefore, the failure to make any
provision as to the time within which the Governor or the President
should reach a decision may suggest that the Constitution-makers
knew that a Bill which was pending the assent of the Governor or
Page 73 of 111


the President did not stand the risk of lapse on the dissolution of
the Assembly. That is why no time limit was prescribed by Articles
200 and 201. Therefore, in our opinion, the scheme of Articles 200
and 201 supports the conclusion that a Bill pending the assent of
the Governor or the President does not lapse as a result of the
dissolution of the Assembly, and that incidentally shows that the
provisions of Article 196(5) are exhaustive.”
(emphasis supplied)
111. In State of Tamil Nadu (supra), the Court arrived at certain timelines for

the Governor and President, wherein failure to comply with them, would render
the Governor’s inaction, amenable to judicial review:

conclusion, which are necessary to address. The decision in Nambudiri (supra),
is considered and read such that this Court’s observation (in Purushothaman
Nambudiri ) where no timeline was prescribed in Article 200, would not be
reason in itself, to conclude that the exercise of power by the Governor under
Article 200 was not urgent or of expedient character, and thus could be
Page 74 of 111


102
exercised even beyond a reasonable time. While such a reading of
Nambudiri (supra) is on the face of it justified, it must be pointed out that the
Court in State of Tamil Nadu (supra) erroneously translated this reasoning to
justify the prescription of absolute, universal time limits on the Governor and
President, on the expiry of which their action, or inaction, would be amenable
to judicial review.
112. The Court in State of Tamil Nadu (supra), also relied on Keisham
103
Meghachandra Singh v. Speaker, Manipur Legislative Assembly . In that
case, the Court was considering whether the Speaker could be directed to
decide disqualification petitions within a ‘reasonable period’ of time. The
prescription of reasonable timeline in that case, was in the context of the
Speaker’s quasi-judicial function, of taking a decision on disqualification
petitions, as under the Tenth Schedule. The prescription of a reasonable period
of time for a quasi-judicial function, wherein the Speaker acts as a Tribunal,
cannot be equated with the gubernatorial function and the Governor’s exercise
of discretion in that regard under Article 200. Thus, this precedent too offers no
assistance. Reliance on State of Telangana (supra), wherein this Court merely
held that the phrase “ as soon as possible ” in the first proviso to Article 200,
carried “ significant constitutional content and must be borne in mind by
104
constitutional authorities ” , too, offers no assistance. The decision in Durga

102
State of Tamil Nadu (supra), paragraphs 245 and 246.
103
2020 INSC 65; (2021) 16 SCC 503 [3JB]
104
State of Telangana (supra), paragraph 2.
Page 75 of 111


105
Pada Ghosh v. State of W.B. was also referred to - where the Court
interpreted “ as soon as may be ” in Article 22(5) of the Constitution, while dealing
with a habeas corpus petition. By no means, can these judgments be
contemplated as translating to a judicial prescription of a timeline, on the text of
Constitution, binding constitutional functionaries.
113. The Court further relied on Circulars issued by the Ministry of Home
Affairs, to hold that there were applicable timelines on both the Governor under
106
Article 200, and the President under Article 201. We are of the considered
view that the Ministry’s circulars cannot be incorporated by way of judicial
interpretation in such a manner, so as to apply as a constitutional fetter, on the
Governor and the President. Such an exercise of judicial construction would not
be appropriate.
114. In view of the above reasoning, we are required to clarify that the
paragraphs 260-261 of the judgment in State of Tamil Nadu (supra), pertaining
to the imposition of timelines on the Governor under Article 200 are
107
erroneous. It must also be pointed out that there was no occasion for the
issue of setting a timeline for disposal of Bills referred to the President under
Article 201, to arise before this Court, while considering State of Tamil Nadu
108
(supra). Thus, it is clarified that any observations on the aspect of timelines

105
(1972) 2 SCC 656 [3JB].
106
State of Tamil Nadu (supra), paragraphs 404-408, and 417.
107
State of Tamil Nadu (supra), corresponding conclusions at paragraphs 456.10 to 456.14.4 as well.
108
State of Tamil Nadu (supra), paragraphs 389-447.
Page 76 of 111


109
applicable to the President under Article 201, or conclusions thereof on this
aspect, are merely obiter, and ought to be treated as such.
115. The text of Articles 200 and 201, has been framed in such a manner, so
as to provide a sense of elasticity, for constitutional authorities to perform their
functions, keeping in mind the diverse contexts and situations, and by
consequence the need for balancing that might arise in the process of law-
making in a federal, and democratic country like ours. The imposition of
timelines would be strictly contrary to this elasticity that the Constitution so
carefully preserves.
116. A logical corollary of this reasoning is that if there are no prescribed
timelines under Articles 200 and 201, then expiry of them too, cannot amount
to ‘deemed consent’. Though, in the background of the aforesaid findings on
timelines, the issue of ‘deemed assent’ has been rendered almost academic,
we deem it appropriate to briefly state certain observations, given that Question
10 specifically enquires regarding the scope of Article 142 in the context of
‘deemed consent’ and is of some constitutional importance.
117. We find that the Constitution framers were categorical as to when
deeming provisions were to operate in the context of legislative functions. Article
109(4) and 109(5), deem a Money Bill to be passed by Council of States either
when the House of the People do not accept the suggestions given by the
Council of States or if the Council of States does not return the Money Bill to

109
State of Tamil Nadu (supra), paragraph 456.19.
Page 77 of 111


the House within fourteen days. Similar provisions can be found in Article 198(4)
and (5). Similarly, Articles 107, 108, 196, 197, 213 and 239B also contemplate
a form of deeming, as a consequence. Such deeming clauses are absent in the
case of Articles 200 and 201, therefore, we find that by judicial intervention such
assent cannot be deemed.
118. The concept of ‘deemed assent’ in the context of Articles 200 and 201
presupposes that one constitutional authority (herein, the Court), could play a
‘substitutional role’ for another constitutional functionary (herein, the Governor,
or President). Such a usurpation of the gubernatorial function of the Governor,
and similarly of the President’s functions, is antithetical not only to the spirit of
the Constitution, but also specifically, the doctrine of separation of powers –
110
which is a part of the basic structure of the Indian Constitution. The
111
Constitution Bench of this Court in Bhim Singh v. Union of India explains the
distinction between overlap, and wresting away a function, within the separation
of powers doctrine:

110
Kesavananda Bharati v. State of Kerala , 1973 INSC 91; (1973) 4 SCC 225 [13JB], see paragraph
577 (Shelat & Grover, JJ.).
111
2010 INSC 276; (2010) 5 SCC 538 [5JB]
Page 78 of 111

pending Bills by the Court in exercise of jurisdiction under Article 142, is virtually
a takeover of the role, and function, of a separate constitutional authority. The
reliance on Article 142, cannot lead to supplanting constitutional provisions
itself.
119. The judicial creation of specific timelines and the effect of the expiry of
those timelines on the actions of the Governor and the President, as prescribed
in State of Tamil Nadu (supra), does not employ Article 142 to merely fill the
gaps. We have already held that the effect of this judgment insofar as ‘deemed
assent’ is concerned is that it undertakes a substitutional role. The constitutional
effect is such that it is not merely a gap-filling exercise, or a procedural exercise
that the Court undertook, but a substantive one which finds no basis in the text
of the Constitution. In this view of the matter, we are of the considered opinion
that Article 142 cannot be employed to arrive at a conclusion contrary to the
express provisions of the Constitution.
120. We find that the summation of case law on Article 142 is uncalled for, but
we only refer to the observations made by this Court in the following judgments,
which fortify our conclusions. It is a matter of settled law, that jurisdiction under
Page 79 of 111


112
Article 142 cannot be invoked to achieve results that are contrary to the
Constitution, or statutory provisions. Dealing with the powers of this Court under
113
Article 142, in Prem Chand Garg v. Excise Commissioner, U.P. , a
Constitution Bench of this Court held:
“ 14 . […] we ought to bear in mind that though the powers
conferred on this Court by Article 142 ( 1 ) are very wide, and the
same can be exercised for doing complete justice in any case, as
we have already observed, this Court cannot even under Article
142 ( 1 ) make an order plainly inconsistent with the express statutory
provisions of substantive law, much less, inconsistent with any
114
constitutional provisions[ …]”
( emphasis supplied )
115
121. In Supreme Court Bar Assn. v. Union of India , a Constitution Bench of
this Court held that a contemnor advocate cannot be punished by invoking
Article 142, while dealing with a contempt of court case, when such power is
statutorily available with the Bar Council of India. On the scope of Article 142, it
was held:
“47. […] This power cannot be used to “supplant” substantive
law applicable to the case or cause under consideration of the
Court. Article 142, even with the width of its amplitude, cannot be
used to build a new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject and thereby to
achieve something indirectly which cannot be achieved directly […].
The construction of Article 142 must be functionally informed by the

112
Article 142 reads as follows: “
142. Enforcement of decrees and orders of Supreme Court and
1) The Supreme Court in the exercise of its jurisdiction may pass such
orders as to discovery, etc.—(
decree or make such order as is necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or order so made shall be enforceable throughout the territory of
India in such manner as may be prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by order prescribe.”
113
1962 INSC 311; AIR 1963 SC 996 [5JB]
114
This decision was further considered in Union Carbide Corpn. v. Union of India [1991 INSC 250;
(1991) 4 SCC 584], a Constitution Bench of this Court dealing with the ambit and scope of the powers
of this Court under Article 142, wherein it was clarified that ordinary law did not limit the powers under
Article 142(1) regardless of the public policy it was founded on, but that the violation of constitutional
provisions and constitutional rights was significant and limited the scope of Article 142.
115
1998 INSC 183; (1998) 4 SCC 409 [5JB].
Page 80 of 111


salutary purposes of the article viz. to do complete justice between
the parties. […]
(emphasis supplied)
122. This Court in a recent Constitution Bench decision Shilpa Sailesh v.
116
Varun Sreenivasan , concluded the position of law on Article 142 as follows:
“ (i) The scope and ambit of power and jurisdiction of this
Court under Article 142(1) of the Constitution of India
74. This question as to the power and jurisdiction of this Court
under Article 142(1) of the Constitution of India is answered in terms
of paras 9 to 21, inter alia, holding that this Court can depart from
the procedure as well as the substantive laws, as long as the
decision is exercised based on considerations of fundamental
general and specific public policy. While deciding whether to
exercise discretion, this Court must consider the substantive
provisions as enacted and not ignore the same, albeit this Court
acts as a problem solver by balancing out equities between the
conflicting claims. This power is to be exercised in a ‘cause or
matter’.”
(emphasis supplied)
117
123. Much emphasis has been placed on A.G. Perarivalan v. State of T.N.
in the judgment of State of Tamil Nadu (supra) to arrive at the conclusion that
inexplicable delay on the count of the Governor in exercising his function under
Article 200, is both justiciable and that on account of such unexplained delay,
the power under Article 142 can be deployed to substitute the Governor’s
actions with a judicial order. This line of reasoning has also been adopted by
the Counsel opposing the reference. We find this approach to be erroneous for
the following reasons: Firstly , the decision in A.G. Perarivalan (supra) was
tendered in the context of Article 161 of the Constitution, dealing with the
executive power of pardon. Secondly, this Court came to the conclusion that

116
2023 INSC 468; (2023) 14 SCC 231 [5JB].
117
2022 INSC 588; (2023) 8 SCC 257 [3JB].
Page 81 of 111


the Governor is bound by the aid and advice of the Council of Ministers in this
regard, and advice having been so tendered after an inexplicable delay of over
2 years, is subject to judicial review. The conclusions of this Court in A.G.
Perarivalan (supra) at paragraphs 38.1 to 38.3, and 38.6 are to be noticed in
this regard:
“38.1. The law laid down by a catena of judgments of this Court
is well settled that the advice of the State Cabinet is binding on the
Governor in the exercise of his powers under Article 161 of the
Constitution.
38.2. Non-exercise of the power under Article 161 or
inexplicable delay in exercise of such power not attributable to the
prisoner is subject to judicial review by this Court, especially when
the State Cabinet has taken a decision to release the prisoner and
made recommendations to the Governor to this effect.
38.3. The reference of the recommendation of the Tamil Nadu
Cabinet by the Governor to the President of India two-and-a-half
years after such recommendation had been made is without any
constitutional backing and is inimical to the scheme of our
Constitution, whereby “the Governor is but a shorthand expression
for the State Government” as observed by this Court [Maru
Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112] .
[…]
38.6. Taking into account the appellant's prolonged period of
incarceration, his satisfactory conduct in jail as well as during
parole, chronic ailments from his medical records, his educational
qualifications acquired during incarceration and the pendency of his
petition under Article 161 for two-and-a-half years after the
recommendation of the State Cabinet, we do not consider it fit to
remand the matter for the Governor's consideration. In exercise of
our power under Article 142 of the Constitution, we direct that the
appellant is deemed to have served the sentence in connection with
Crime No. 329 of 1991. The appellant, who is already on bail, is set
at liberty forthwith. His bail bonds are cancelled.”

The relief that the Court in effect moulded is evident from the conclusion in
paragraph 38.6 where it neither deemed a pardon, nor did it direct a pardon. It
did, however, deem that the appellant had served his sentence towards Crime
Page 82 of 111


No. 329/1991. What is significant is that this Court did not deem to pardon at
the expiry of a timeline, nor did it fix any uniform, rigid and absolute timelines.
124. In our consideration, it is quite a leap of constitutional logic to use the
decision in A.G. Perarivalan (supra), as a springboard for prescribing universal
and absolute timelines on Governors and the President for the exercise of their
functions under Articles 200 and 201 respectively. Even more so given that the
expiry of such timelines, was used as the path that paved the way to judicial
review of functions under Articles 200 and 201.
125. Moreover, when we have already held that the Governor is not bound by
the aid and advice of the Council of Ministers in exercise of his functions under
Article 200, the prescription of the timelines as is delineated in paragraphs 260-
261 of State of Tamil Nadu (supra) apart from being a functional and absolute
restraint on the Governor and President, also suffers from legal infirmities.
Firstly, it prescribes a one-size-fits-all timeline, dehors the nature of the Bill and
complexity of the issue. Secondly , at the expiry of this one-size-fits all timeline,
it creates a right for judicial redressal, prima facie rendering the act of the
Governor or President suspect upon the expiry of such timeline. Both these
consequences, in our considered view, were uncalled for as they were neither
envisioned when we adopted the Constitution, nor they are borne out of our
constitutional practice.
126. The judgment in State of Tamil Nadu (supra), arrives at the conclusion
that the timelines devised by it are not being incorporated into the Constitution,
Page 83 of 111


118
but are only tools of judicial review for evaluating the exercise or non-exercise
of functions of the Governor and the President. In other words, the Court comes
to the conclusion that these specific timelines will only be used as a yardstick
for judicial review and no further. It draws a distinction between incorporation of
timelines into the Constitution, at the expiry of which, the natural consequence
would have been ‘deemed assent’. However, the Court in State of Tamil Nadu
(supra), stated that the usage of timelines devised by it as merely tools of judicial
review, would not result in ‘deemed assent’. The following paragraphs from
State of Tamil Nadu (supra), demonstrate how the Court sought to bring about
this difference:

118
“ 249 . Any time-limit in the exercise of powers in terms of Article 200 of the Constitution should not
be construed as timelines laid within the edifice of the provision, rather should be understood as
timelines that would serve as a lodestar for the purpose of exercise of judicial review by the courts, a
benchmark tool to aid and enable the courts in ascertaining if any inaction or malfeasance has
occasioned in the exercise of such powers. These timelines no doubt demand the earnest adherence
by the Governor, however, these being nothing more than tools upon which scrutiny by judicial review
is to be premised, remain as prescriptions within the realm of judicial review alone and do not transgress
into the legislative bounds or amount to alteration of the text or authority of Article 200 of the
Constitution. The reason why these timelines do not immolate the very fabric of Article 200 is because
the said provision even with the infusion of these time-limits still remains markedly different from its
counterpart provisions where such time-limits are legislatively prescribed. For instance, Article 75 of the
Constitution of the Islamic Republic of Pakistan or Article I, Section 7 of the US Constitution, where if
no decision is taken within the stipulated time-limit by the President then the Bills are deemed to have
been assented to .”
Page 84 of 111

127. We are of the considered opinion that this is an artificial distinction without
a difference. Although the Court attempted to draw a distinction between the
two methods quoted above, what the Court in fact went ahead and did by
invoking Article 142 of the Constitution, was to grant deemed assent, upon the
expiry of the timelines so prescribed by it. In effect, this has erroneously opened
the doors to a judicial remedy, purportedly under Article 142, that is contrary to
the text of the Constitution.
128. 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.
IX. Justiciability of the functions exercised by the Governor and the
President under Article 200 and Article 201 respectively

129. The present reference seeks categorical opinions as to the justiciability
of the functions exercised by the Governor under Article 200 and that of the
President under Article 201.
130. The judgment of this Court in State of Tamil Nadu (supra) is the first to
hold that the exercise of functions under Articles 200 and 201 are justiciable. It,
Page 85 of 111


thereafter, prescribes an elaborate regime delineating the nature and grounds
119
for justiciability , which are not being extracted herein for the sake of brevity.
131. State of Tamil Nadu (supra) discusses the cases of Kameshwar (supra) ,
120
Hoechst (supra), Bharat Sevashram Sangh v. State of Gujarat , Kaiser-I-Hind
121
(P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd. , and B.K.
Pavitra (supra) wherein specific arguments were raised on the question of
whether the assent of the President and/or Governor, was justiciable. Despite
the explicit ratio in these cases (discussed further below), the Court in State of
Tamil Nadu (supra) distinguished their findings or explained them on different
122
counts , to conclude that the assent of the Governor or President, is, in fact,
justiciable. Holding the grant or withholding of such assent to be legislative
procedure, and a part of the legislative process, it was held to be amenable to
123
judicial scrutiny. We find that an interpretive exercise and discussion of these
precedents is warranted.
132. In Kameshwar (supra), a Constitution Bench concluded that the assent
of the President on a Bill reserved for his consideration in the context of Article
31-A, was not justiciable (M.C. Mahajan, J.):

119
Discussion from paragraph 361 onwards, with conclusions at paragraphs 386-387.
120
1986 INSC 174; (1986) 4 SCC 51 [2JB].
121
2002 INSC 406; (2002) 8 SCC 182 [5JB].
122
See paragraphs 381-382, and specifically for each judgment – paragraphs 361 ( Kameshwar
Singh ), 363 ( Hoechst ), 364 ( Bharat Sevashram Sangh ), 367-368 ( B.K. Pavitra ), 373-374, 378 and
381 ( Kaiser-i-Hind ) in State of Tamil Nadu (supra).
123
State of Tamil Nadu (supra), see paragraphs 381-383 (Article 200), and 384-385 (on Article 201).
Page 86 of 111

133. In Hoechst (supra), a 3-Judge Bench of this Court was considering a
challenge to a legislation on the ground that despite its subject matter being in
List II, the Governor had no opportunity to reserve the said Bill for the
President’s consideration. In this context, the President’s assent granted had
been challenged, and this Court held:

Page 87 of 111


134. In Bharat Sevashram Sangh (supra), this Court faced a challenge to the
validity of a legislation on the ground that the President had tendered partial or
conditional assent, and for this purpose, the material on record before the
President was also looked into. The Court observed as follows:

Page 88 of 111

It is significant to point out that this Court in State of Tamil Nadu (supra) read

the same extract of the judgment in Bharat Sevashram Sangh (supra) and
observed that the case in Bharat Sevashram Sangh (supra) had not arrived at
its conclusions on account of non-justiciability, but rather had been decided on
124
the facts and circumstances of that case, based on the material on record.
We are unable to read this precedent in the manner so indicated. The reference
to and approval of the extract from Hoechst (supra) (emphasis supplied above)
clearly demonstrates that there was no deviation from its reasoning.
Conspicuously, the cross-reference to Hoechst (supra) at the end of paragraph
6 of Bharat Sevashram Sangh (supra), does not form a part of the extract
125
included in State of Tamil Nadu (supra).

124
State of Tamil Nadu (supra), paragraph 364 and 365.
125
State of Tamil Nadu (supra), paragraph 365.
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126
135. In B. K. Pavitra (supra), a Bill had been reserved for the consideration
of the President, who had thereafter granted assent. It was held that this assent
granted by the President, was not justiciable as the requirements of Article 201
had been met. Following the decision in Hoechst (supra), it was held by a
Division Bench of this Court that judicial scrutiny over the Governor’s discharge
of his function under Article 200, was not justiciable:

136. In Kaiser-e-Hind (supra), a Constitution Bench of this Court considered
the scope of Presidential assent to a Bill that was reserved for his consideration

126
Which led to the Reservation Act, 2018.
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under Article 254(2) on the ground of repugnancy. Concluding that such assent
was limited to the aspect as proposed by the State Government, and not a
blanket assent for all earlier laws, the Court still held that the merits or
correctness of such assent granted, could not be subjected to judicial review:

Notably, paragraph 27 of Kaiser-i-Hind (supra) does not find mention in the
reasoning of State of Tamil Nadu (supra).
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137. The decisions in Hoechst Pharmaceuticals (supra), and B.K. Pavitra
(supra) both arose from a situation wherein grant of assent was specifically
challenged, unlike the case in State of Tamil Nadu (supra) where in fact, this
question did not arise. Pertinently, the various decisions discussed in the
foregoing paragraphs were of larger bench strength ( B.K. Pavitra being a
coordinate bench) as compared to in State of Tamil Nadu (supra) and explicitly
held that a merits-review or the correctness of the assent granted by the
President was not within the purview of permissible judicial scrutiny. The
decision in Kaiser-i-Hind (supra), holds that the President must be informed of
the grounds on which the Governor is reserving the Bill for his consideration on
the issue of repugnancy. It further comes to a definite conclusion in paragraphs
25 and 27, that this was not to mean that the discharge of powers of the
President under Article 201 is justiciable. The ratio in this case has been turned
on its head in State of Tamil Nadu (supra) to arrive at its conclusion. We are of
the considered opinion that the Court in State of Tamil Nadu (supra) was bound
by these earlier decisions, and the discharge of function by the Governor and
President under Articles 200 and 201 respectively is thus, non-justiciable.
138. Beyond judicial precedent as well, we are unable to endorse the view
advanced in State of Tamil Nadu (supra). In light of the opinion that we have
tendered in the other questions above, since the Governor cannot withhold
assent simpliciter, the only options he has are to initiate the dialogic process
under Article 200 – either through returning the Bill to the Legislature for
reconsideration or reserving it for the President’s assent, who in turn under
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Article 201, may choose to return the Bill with a message to the Legislature as
well. The initiation of a dialogic process where other constitutional functionaries
are consulted before the Governor or President takes a decision on whether the
Bill must be assented to or not, is not a justiciable act in itself.
139. We have emphasized that the dialogic process is a part of the system of
checks and balances, and the federal system that our Constitution envisages.
The nature of the dialogic process contemplated under Articles 200 and 201 is
such that it is advisory, persuasive, deliberative, mediative, and consultative . It
stands at a markedly different position from the discharge of an adjudicatory
function, or a definitive exercise of executive power – both of which are subject
to judicial review. The discharge of functions under Articles 200 and 201,
however, is simply the initiation of a dialogic process, which cannot be the
subject of judicial review.
140. Under the Court’s formulation in State of Tamil Nadu (supra), each of the
three options - assent, reservation and return of the Bill – become justiciable.
We find that such a conclusion belies logic. Taking this line of reasoning further,
if the reservation of a Bill, or withholding and returning it to the Legislature, is
justiciable, then the grant of assent too, would necessarily have to be subject to
judicial review. This opens another front to challenge a Bill, and the resulting
legislation. Suppose for instance, that the Legislature passes a Bill, and the
Governor accords assent under Article 200. Apart from the grounds taken to
impugn the validity of the resulting Act, the grant of assent by the Governor
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itself, can become a ground for challenge. Those who bring such a challenge
to Court, can effectively challenge the substantive grant of the Governor’s
assent on merits, arguing instead that it ought to have been reserved for the
President’s consideration, or sent back with certain comments. This also throws
up the question of who can make such a challenge to the assent granted by the
Governor.
141. The most drastic consequence of accepting that assent, reservation or
return can be challenged, is that in any of the formulations of this Court in State
of Tamil Nadu (supra), it is not the enactment which will be brought for review
of the Court, but the Bill which will be subjected to judicial review. In other words,
to determine whether a Bill has been correctly accorded assent or not, the
primary document brought before the Court’s consideration will be the text of
the Bill, anterior to the stage of it becoming a law.
142. To appreciate this line of logic, few illustrative examples will provide
clarity. Consider for instance, if the Bill has been reserved for the President’s
consideration on account of repugnancy, the Court will have to tender a finding
specifically on whether the Bill is repugnant to any law so indicated by the
Governor, and consequently whether the Governor had rightly reserved the
same. Similarly, in a situation where the Governor was to reserve a Bill under
the second proviso of Article 200, and such action of the Governor is challenged
in Court – the said Court will have to scrutinize specific provisions of the Bill to
ascertain whether they affect the powers of the High Court, and therefore,
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whether such reservation of the Bill for the President’s consideration is justified.
In this manner, the Court’s jurisdiction would be invoked to render a finding and
specifically adjudicate upon whether various provisions of Bills in question merit
consideration of the President, or reconsideration by the Legislature.
143. The People’s will expressed through the Legislative Branch is only
definitive and conclusive, upon receiving the assent of the Governor, or
President, as the case may be. This is not an empty formality. It is only such a
definitive expression of legislative will, that is subject to judicial review. When
Article 13, 245, and 246 employ the word ‘law’ – in all these cases law means
legislation that is enacted in accordance with the Constitution.
144. Therefore, the judicial review of a Bill, that is anterior to its enactment as
law, is unheard of and unfathomable in our constitutional practice and history.
Judicial review of a legislation is premised on the fact that it will be considered
by the Court, only after it has been made into law – i.e., assented by the
Governor or President as the case may be, and brought into force. It is this
judicial review over legislation that our constitutionalism envisages, and this
particular form is an essential feature of our basic structure.
145. The Court in sub-para (1) and (2) of paragraph 456.24 of State of Tamil
Nadu (supra) lays out five categories of instances wherein the Governor’s act
of reserving a Bill for consideration of the President can be assailed by the State
Government before the High Court, and three grounds wherein the President’s
choice to withhold assent, can be similarly challenged before this Court. These
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grounds include – when a Bill is reserved under the second proviso to Article
200, when the Bill attracts any provision that requires the President’s assent as
a pre-requisite for proper enactment and enforcement of the law, where the Bill
imperils democracy or democratic principles, when the Governor is personally
dissatisfied or for political expediency, or to challenge the Governor’s inaction
upon being presented a Bill under Article 200. With regards to the President,
the grounds identified include withholding assent in an arbitrary or mala fide
manner, when the Bill is reserved as being patently unconstitutional, or
challenging the President’s inaction. As per the framework contained in the
judgment, specific redressal is possible through court intervention in each of
these scenarios.
146. The fundamental flaw in this line of reasoning that culminates in these
categories of ‘permissible grounds’ for challenge, is the erroneous presumption
that the Courts may sit in review over Bills, that are not yet enacted as law. This
would have the effect of Courts supplanting the wisdom, and considerations of
the Governor and President - who are constitutional authorities vested with
constitutional obligations, in exercise of the court’s power of judicial review. We
are of the considered opinion that to permit such a reading of the Constitution,
would be to destroy the doctrine of separation of powers – which as elaborated
above in our discussion on ‘deemed assent’– is an essential feature of our
Constitution. Designed with a system of checks and balances at its core, the
constitutional text equally preserves against overreach and supplanting of the
powers and functions that are carefully distributed across the three organs – the
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Executive, Legislature and Judiciary. There is no denying, that judicial review
too, is a part of the basic structure of the Constitution of India. This judicial
review, however, is not an unbridled scope that can negate or destroy the
separation of powers doctrine. Allowing the judiciary to meddle in the legislative
procedure (as so termed in Kaiser-i-Hind ), at the stage of the Governor initiating
a dialogic process as contained in Articles 200 and 201, would be to shatter the
permeable walls that maintain this separation of powers.
147. Looked at from another perspective, the sanctity of the legislative process
afforded by the Constitution must be protected and allowed to operate in its
entirety. The Court cannot interfere, in the midst of that process before it is even
concluded, and especially at the stage where the Governor is empowered to
initiate a dialogic process. The provisions of Articles 200 and 201 offer a
complete Code, for how Bills are to be dealt with, upon being passed by the
House(s). The way we practice our constitutionalism does not allow for judicial
consideration of Bills at this preliminary stage. It is reiterated that to allow this
would be to effectively supplant the role of the Legislature, and the checks and
balances placed squarely within its responsibility.
148. In view of the above discussion, we find no reason to deviate from the
binding decisions of this Court and for the additional reasoning stated above,
are of the considered view that the discharge of the Governor’s or President’s
functions under Articles 200 and 201 respectively, is not justiciable.
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149. Further, we are of the firm view that judicial review scrutiny and the
jurisdiction of courts can be invoked only once the Bill becomes law. It is
unfathomable, keeping in mind the way in which we practice our
constitutionalism in India, to suggest that Bills can be brought to Court and
adjudicated upon (rather than opined upon under Article 143). The only limited
scope and known constitutional route through which the Judiciary can look into
a Bill, is if the President, in exercise of Article 143, referred such a Bill to the
Supreme Court to opine on, in discharge of its advisory jurisdiction. Under
Article 143, it is the Executive through the President, that seeks an opinion of
this Court. This is markedly different from examining a challenge on merits
whether the Governor has reserved or withheld and returned the said Bill
justifiably so.
150. The same logic applies to the President’s assent under Article 201 as
well. Consider for instance, a Bill that is reserved for the President’s
consideration, which is thereafter assented to by him. Grounds for challenge of
such an Act, would effectively include whether the President had rightly
considered the entire conspectus of issues or concerns involved, thus allowing
the judiciary to supplant the wisdom, and functions of the President.
127
151. For the above reasons, the second part of Question 9 of the present
Presidential Reference, is answered accordingly, in the negative, i.e., it is

127
Are the decisions of the Governor and the President under Article 200 and Article 201 of the
Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it
permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner,
before it becomes law?
Page 98 of 111


impermissible for the Courts to undertake judicial adjudication over the contents
of a Bill, in any manner, before it becomes law – wherein discharge of its role
under Article 143, is not ‘judicial adjudication’.
152. It is also clarified that the President is not required to seek advice of this
Court by way of reference under Article 143 on every occasion that a Bill is
reserved for his consideration by the Governor, under Article 200. The
President’s subjective satisfaction is sufficient under Article 201. If for any
extraneous reasons, the President so requires this Court to tender an opinion
on a Bill, or specific aspects of it, a reference invoking the advisory jurisdiction
under Article 143 always lies. The judgment in State of Tamil Nadu (supra) does
not mandate reference under Article 143 but suggests it as a mechanism that
the President can employ and must be read as so. It is clarified, however, that
no such pre-requisite exists, when considering Bills reserved for the President’s
assent, whose subjective satisfaction is the only requirement. This in turn,
should answer Question 8 of this Presidential Reference.
A. Limits of judicial intervention
153. The Courts cannot interfere in the procedure of a Bill’s passage and
embark on its merit review, as already observed earlier in this opinion. However,
the consequent question that arises – as it did before this Court in State of Tamil
Nadu (supra) – is what redressal lies, when no decision is forthcoming from the

Governor, under Article 200? In other words, what relief is constitutionally
permissible, when faced with inaction of the Governor under Article 200, thus
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frustrating the legislative process and the will of the people, expressed through
such a Bill that is left pending?
154. We have given the submissions on such a situation, our anxious
consideration. To permit a reading of the Constitution that enables or even
allows, unchecked discretion to potentially bring Bills passed in furtherance of
the peoples’ will, to a procedural impasse and frustrate lawmaking would be
antithetical to the values and spirit of the Constitution. That the Governor enjoys
discretion under various provisions, is no longer res integra. However, the
question we are confronted with is whether the constitutional breadth of
discretion extends to protecting an indefinite or prolonged inaction of the
Governor under Article 200. We are of the considered opinion that while the
merits of action taken by the Governor under Article 200 cannot be looked into
by Courts – inaction that is prolonged, unexplained and indefinite, will certainly
invite limited judicial scrutiny.
155. Each constitutional organ, or authority, cannot function by itself. The
working of our constitutional scheme is premised on constitutional authorities –
who are each assigned specific but inter-dependent roles – performing their
duties, akin to cogs that keep a clock ticking. They depend on each other, to
keep the Constitution humming, and thus, working. They are also
constitutionally obligated, to offer checks-and-balances, for the other. Such a
constitutional scheme, thus, abhors inaction . In other words, our constitutional
scheme works, only if it is worked . It is one thing to say that one constitutional
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organ will not substitute or supplant the wisdom or role of another constitutional
authority, but completely another – to shy away from checks and balances on
this pretext, when there is deliberate inaction .
156. The concept of accountability, and checks and balances, courses through
the provisions of the Constitution. Thus, the Legislature which represents the
people’s will, is only effective, if the Governor acts , under Article 200. This is not
to say that the Governor is merely a rubber stamp, between a Bill becoming an
Act. There is value, in his consideration, and thus, choice exercised between
the three options before him under Article 200. Thus, it is correct that the Court
cannot supplant the wisdom of the Governor and enter a merits-review of this
decision so taken. However, where the Governor chooses to not act under
Article 200, resulting in prolonged pendency in Bills without initiating the dialogic
process that the Constitution envisions, thus frustrating the outcome of the
Legislature’s functions and efforts – Constitutional Courts can exercise limited
judicial review.
128
157. In Aeltemesh Rein v. Union of India , this Court was considering a writ
petition that alleged inaction by the Union Government in bringing into force
Section 30 of the Advocates Act, 1961, despite 25 years having elapsed since
the Act had been passed. The principal defense of the Union was based on the
129
decision in A.K. Roy v. Union of India , which held that no mandamus could

128
1988 INSC 203; (1988) 4 SCC 54 [2JB].
129
1981 INSC 210; (1982) 1 SCC 271 [5JB].
Page 101 of 111


be issued to bring into force a Constitutional amendment. In that context, the
Court observed as follows:

is fair and balanced.
158. The Courts are empowered to grant a form of a limited direction, to the
Governor, to take action . The Court can after being satisfied from a perusal of
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records on what has transpired can issue a limited direction to the Governor to
act under Article 200, within a reasonable time limit, without making any
observations on the merits of the exercise of discretion. It would thus, serve the
purpose of asking the Governor to exercise his function under Article 200, rather
than substituting his role.
159. The complexity of the Bill presented, emergent nature of the enactment,
nature of consultative process undertaken, are a few illustrative factors that the
Court will take into consideration while issuing a limited mandamus to take an
appropriate step under Article 200. We clarify that this does not extend to the
Court directing that one particular course of action will be employed by the
Governor. There is no formulaic manner, or timeline, that the Courts by judicial
order can establish. Not every case would lead the Court to issue an automatic
direction to ‘act’, rather this limited direction would have to be measured based
on appropriate circumstances. In this manner, this limited direction that the
Court can issue, serves as a form of institutional accountability.
X. Article 361 and its interplay with judicial review of actions under
Article 200

160. Another question specifically referred to this Court for opinion, is whether
130
Article 361 serves as an absolute bar to judicial review in relation to the
actions of a Governor under Article 200 of the Constitution.

130
“ 361. Protection of President and Governors and Rajpramukhs
(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for
the exercise and performance of the powers and duties of his office or for any act done or purporting to
be done by him in the exercise and performance of those powers and duties:
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161. Counsels appearing in support of the reference, argued that Article 361
131
was already a narrower version of Section 306 of the Government of India
Act, 1935, as the former only applies to the President and Governor, while they
remain in office. Counsel submitted that the Governor’s decision to exercise
options under Article 200 was an official act of a high constitutional functionary
who enjoys absolute personal immunity from being “ answerable to any court ”
for acts “ done or purported to be done ” in the exercise of office. Article 361 was
characterized as a ‘constitutional insulation’ against judicial intervention of any
kind – manner, reasons, or timing of the choice so exercised under Article 200,
thus precluding coercive relief or process that would require the Governor to
explain or modify any such choice made. Heavy reliance was placed on this

Provided that the conduct of the President may be brought under review by any court, tribunal or body
appointed or designated by either House of Parliament for the investigation of a charge under article
61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to
bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the
Governor of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue
from any court during his term of office.
(4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall
be instituted during his term of office in any court in respect of any act done or purporting to be done by
him in his personal capacity, whether before or after he entered upon his office as President, or as
Governor of such State, until the expiration of two months next after notice in writing has been delivered
to the President or the Governor, as the case may be, or left at his office stating the nature of the
proceedings, the cause of action therefor, the name, description and place of residence of the party by
whom such proceedings are to be instituted and the relief which he claims.”
131
“ 306. Protection of Governor-General, Governor or Secretary of State
(1) No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any court in
India against the Governor-General, against the Governor of a Province, or against the Secretary of
State, whether in a personal capacity or otherwise, and, except with the sanction of His Majesty in
Council, no proceedings whatsoever shall lie in any court in India against any person who has been
the Governor-General, the Governor of a Province, or the Secretary of State in respect of anything
done or omitted to be done by any of them during his term of office in performance or purported
performance of the duties thereof:
Provided that nothing in this section shall be construed as restricting the right of any person to bring
against the Federation, a Province, or the Secretary of State such proceedings as are mentioned in
chapter III of Part VII of this Act.
(2) The provisions of the preceding subsection shall apply in relation to His Majesty's Representative
for the exercise of the functions of the Crown in its relations with Indian States as they apply in relation
to the Governor-General.”
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Court’s Constitution Bench decision in Rameshwar Prasad (VI) v. Union of
132
India . Counsel also referred to Nabam Rebia v. Deputy Speaker, Arunachal
133
Pradesh Legislative Assembly (order dated 01.02.2016), B. R. Kapur v. State
134 135
of T.N. and Anindita v. Pranab Kumar Mukherjee .
162. Counsel opposing the reference, too, relied on the decision in
Rameshwar Prasad (VI) (supra) and submitted that the President and
Governor, are both personally immune and the Courts are restrained from
issuing any direction for even filing an affidavit, to assist the Court. This
immunity under Article 361, however, does not preclude the Court from
examining the validity of actions (as most are done under aid and advice of the
Council of Ministers), including on the ground of mala fides. Further, even
where personal mala fides are alleged and established, it was argued that the
Government could not shield itself from answering, on account of immunity
under Article 361. Reference was also made to State of Tamil Nadu (supra)
where it was held that the decision in Rameshwar Prasad (supra) clarified that
“ the immunity enshrined in Article 361 of the Constitution does not preclude or
prohibit the courts in any manner from looking into the actions of the Governor
which by necessary implication would include his actions under Article 200 as
well ”.

132
2006 INSC 42; (2006) 2 SCC 1 [5JB].
133
2016 SCC OnLine SC 94.
134
2001 INSC 453; (2001) 7 SCC 231 [5JB].
135
(2018) 15 SCC 628 [2JB].
Page 105 of 111


163. We have considered these submissions and are of the firm view that the
Constitution Bench in Rameshwar Prasad (supra) offers a complete answer to
the question referred to this Court. In that case, it was held that Article 361
affords to the Governor complete immunity, such that on the one hand is not
answerable to any court for exercise and performance of powers and duties of
his office, or for any act done or purporting to be done in exercise of his powers
and duties, but on the other hand does not preclude the Court from examining
136
the validity of the action, including on the ground of mala fides. The relevant
extracts are as follows:
“ What is the scope of Article 361 granting immunity to the
Governor ?
170. […] We accepted the submissions made on behalf of the
respondents that in view of this article, notice could not be issued to
the Governor, at the same time, further noticing that the immunity
granted does not affect the power of this Court to judicially scrutinise
attack made on the proclamation issued under Article 356(1) of the
Constitution on the ground of mala fides or it being ultra vires and
that it would be for the Government to satisfy the Court and
adequately meet such ground of challenge. A mala fide act is wholly
outside the scope of the power and has no existence in the eye of
the law. We further held that the expression “purported to be done”
in Article 361 does not cover acts which are mala fide or ultra vires
and thus, the Government supporting the proclamation under Article
356(1) shall have to meet the challenge. The immunity granted
under Article 361 does not mean that in the absence of the
Governor, the grounds of mala fide or being ultra vires would not be
examined by the Court. […].
173. A plain reading of the aforesaid article shows that there is
a complete bar to the impleading and issue of notice to the
President or the Governor inasmuch as they are not answerable to
any court for the exercise and performance of their powers and
duties. Most of the actions are taken on the aid and advice of the
Council of Ministers. The personal immunity from answerability
provided in Article 361 does not bar the challenge that may be made
to their actions. Under law, such actions including those actions
where the challenge may be based on the allegations of mala fides
are required to be defended by the Union of India or the State, as

136
Rameshwar Prasad (supra), paragraph 179.

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the case may be. Even in cases where personal mala fides are
alleged and established, it would not be open to the Governments
to urge that the same cannot be satisfactorily answered because of
the immunity granted. In such an eventuality, it is for the respondent
defending the action to satisfy the Court either on the basis of the
material on record or even filing the affidavit of the person against
whom such allegation of personal mala fides are made. Article 361
does not bar filing of an affidavit if one wants to file on his own. The
bar is only against the power of the Court to issue notice or making
the President or the Governor answerable. In view of the bar, the
Court cannot issue direction to the President or the Governor for
even filing of affidavit to assist the Court. Filing of an affidavit on
one's own volition is one thing than the issue of direction by the
Court to file an affidavit. The personal immunity under Article 361(1)
is complete and, therefore, there is no question of the President or
the Governor being made answerable to the Court in respect of
even charges of mala fides.
[…]
179. The position in law, therefore, is that the Governor enjoys
complete immunity. The Governor is not answerable to any court
for the exercise and performance of the powers and duties of his
office or for any act done or purporting to be done by him in the
exercise and performance of those powers and duties. The
immunity granted by Article 361(1) does not, however, take away
the power of the Court to examine the validity of the action including
on the ground of mala fides.”
(emphasis supplied)
164. The decision in Rameshwar Prasad (supra) was in the context of
invocation of Presidential Rule, which was held to be a justiciable act. In the
context of Article 200, however, the constitutional choice made by the Governor
is not justiciable and a merit review is unavailable in judicial proceedings.
However, as we have held above, this Court can always take cognizance of
inaction and for that limited purpose, a direction can be issued asking the
Governor to exercise his constitutional choice within a reasonable period of
time. This limited judicial review, cannot be overcome on the pretext of Article
361, which offers personal immunity to the Governor. The constitutional office
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of the Governor is definitely subject to the jurisdiction of the court, to prevent
prolonged and evasive constitutional inaction.
XI. Opinion of the Court on the Presidential Reference.
165. In light of our findings and observations above, we deem it appropriate to
summarise our conclusions on this Presidential Reference:
165.1 The Governor has three constitutional options before him, under
Article 200, namely - to assent, reserve the Bill for the consideration
of the President, or withhold assent and return the Bill to the
Legislature with comments. The first proviso to Article 200 is bound
to the substantive part of the provision, and restricts the existing
options, rather than offering a fourth option. Pertinently, the third
option – to withhold assent and return with comments – is only
available to the Governor when it is not a Money Bill.
165.2 The Governor enjoys discretion in choosing from these three
constitutional options and is not bound by the aid and advice of the
Council of Ministers, while exercising his function under Article 200.
165.3 The discharge of the Governor’s function under Article 200, is not
justiciable. The Court cannot enter into a merits review of the
decision so taken. However, in glaring circumstances of inaction
that is prolonged, unexplained, and indefinite – the Court can issue
a limited mandamus for the Governor to discharge his function
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under Article 200 within a reasonable time period, without making
any observations on the merits of the exercise of his discretion.
165.4 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.
165.5 In the absence of constitutionally prescribed time limits, and the
manner of exercise of power by the Governor, it would not be
appropriate for this Court to judicially prescribe timelines for the
exercise of powers under Article 200.
165.6 For similar reasoning as held with respect to the Governor, the
President’s assent under Article 201 too, is not justiciable.
165.7 For the same reasons as indicated in the context of the Governor
under Article 200, it is clarified that the President, too, cannot be
bound by judicially prescribed timelines in the discharge of
functions under Article 201.
165.8 In our constitutional scheme, the President is not required to seek
advice of this Court by way of reference under Article 143, every
time a Governor reserves a Bill for the President’s assent. The
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subjective satisfaction of the President is sufficient. If there is a lack
of clarity, or the President so requires advice of this Court on a Bill,
it may be referred under Article 143, as it has been done on
numerous previous occasions.
165.9 The decisions of the Governor and President under Articles 200
and 201 respectively, are not justiciable at a stage anterior into the
law coming into force. It is impermissible for the Courts to
undertake judicial adjudication over the contents of a Bill, in any
manner, before it becomes law. Pertinently, discharge of its role
under Article 143, does not constitute ‘judicial adjudication’.
165.10 The exercise of constitutional powers and the orders of the
President/Governor cannot be substituted in any manner under
Article 142, and we hereby clarify that the Constitution, specifically
Article 142 even, does not allow for the concept of ‘deemed assent’
of Bills.
165.11 Question 11 is answered in accordance with our opinion tendered
on Question 10, i.e., there is no question of a law made by the State
Legislature coming into force without assent of the Governor under
Article 200. The Governor’s legislative role under Article 200
cannot be supplanted by another constitutional authority.
165.12 We have already indicated in our opinion, that Question 12 relating
to the Article 145(3) and the composition of benches in this Court
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that hear cases of constitutional importance is irrelevant to the
functional nature of this reference, and is returned unanswered.
165.13 We have also indicated in our opinion that Question 13 concerning
the power under Article 142 is overly broad, and not possible to
answer in a definitive manner. Our opinion on the scope of Article
142 in the context of the functions of the Governor and President
has already been answered as a part of Question 10.
165.14 Question 14 – pertaining to this Court’s jurisdiction to resolve
disputes between the Union and State Governments outside of
Article 131 – is also found to be irrelevant to the functional nature
of the reference and hence returned unanswered.

………………………………....CJI
[B.R. GAVAI]
………………………………....J.
[SURYA KANT]
………………………………....J.
[VIKRAM NATH]
………………………………....J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………....J.
[ATUL S. CHANDURKAR]
NEW DELHI;

NOVEMBER 20, 2025

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