A Constitution Bench headed by Chief Justice of India (CJI) BR Gavai on Tuesday (July 22, 2025) said President Droupadi Murmu’s questions on whether the President and Governors can be restricted to a timeline while examining laws proposed by States concern the entire country.
Presidential reference hearing live
The Chief Justice indicated posting the Reference for detailed hearing from the middle of August, sometime proximate to Independence Day.
Chief Justice Gavai, flanked by Justices Surya Kant, Vikram Nath, P.S. Narasimha and A.S. Chandurkar, issued formal notice to all the States and the Union government, inviting their responses to the Presidential Reference. The notices are returnable in a week. The Bench said it would assemble again on July 29, next Tuesday.
“We are keeping all the questions [in the Presidential Reference] open,” CJI Gavai addressed the assembled lawyers.
Senior advocate K.K. Venugopal, appearing for Kerala, questioned the very maintainability of the Presidential Reference issued on May 13.
Tamil Nadu, represented by senior advocate P. Wilson, said all the questions raised by the President were already answered in the April 8 judgment of a Division Bench of the apex court in the Tamil Nadu Governor case.
CJI Gavai responded that the questions concerned all the States, and not restricted to Tamil Nadu and Kerala.
“The issue affects all the States. The Supreme Court is concerned with the entire country. The court will answer the questions raised by the President,” the CJI said categorically.
Attorney-General of India R. Venkataramani agreed to assist the Bench while Solicitor General Tushar Mehta appeared for the Centre. Senior advocates Kapil Sibal, A.M. Singhvi, Rakesh Dwivedi and Gopal Subramanium appeared in the Reference.
The Reference has sought clarity from the apex court under its advisory jurisdiction in Article 143 of the Constitution. Broadly, the Reference has asked if judicial powers would extend to imposing deadlines on the functioning of the President and Governors under Articles 200 (the provision which covers the process of grant of assent by Governors to State Bills) and 201 (when Bills are reserved by Governors for Presidential assent) of the Constitution.
“In the absence of any constitutionally prescribed time limit or manner of exercise of powers by a Governor, can time limits be imposed and manner of exercise of powers be prescribed through judicial orders? Can judicial orders impose timelines and manner of exercise of powers by the President under Article 201,” the Presidential Reference has asked.
The April 8 judgment by a Bench of Justices J.B. Pardiwala and R. Mahadevan came in a petition filed by the Tamil Nadu government challenging the Governor’s delay in clearing 10 re-passed Bills and his subsequent action to reserve them for consideration by the President.
The judgment had held the Governor’s action as illegal. This had led to the default cancellation of the President’s decision to assent to one of the 10 Bills while rejecting seven and not considering two others.
The verdict authored by Justice Pardiwala had invoked Article 142 of the Constitution to deem that all 10 Bills had got assent.
The Reference has now sought the court’s opinion on the very “contours and scope” of Article 142.
“Can the Constitutional powers of the President/Governors be substituted by a judicial order exercising Article 142? Is Article 142 limited to matters of procedural law or does it extend to issuing directions “contrary to or inconsistent with existing substantive or procedural provisions of the Constitution?” it asked.
Indirectly questioning the validity of the “deemed” assent, the Reference has queried if a law made by a State Legislature could even “be considered a law in force without the assent of the Governor”.
“Are decisions of the Governor and the President under Articles 200 and 201, respectively, justiciable at a stage prior to even the Bill in question becoming a law. Is it permissible for the courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?” the Presidential Reference posed.
It said the “concept of deemed assent” of the President and the Governor, introduced in the judgment, was alien to the constitutional scheme and worked to fundamentally circumscribe the power of the President and Governors. Vice-President Jagdeep Dhankar had called Article 142 a “nuclear missile against democratic forces”.
Justice Pardiwala had explained in the verdict that Article 142 was invoked only to do complete justice in public interest for the people of Tamil Nadu.
“We are not exercising our power under Article 142 in a casual manner or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor – first in exhibiting prolonged inaction over the bills; secondly in declaring a simpliciter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round – were all in clear violation of the procedure envisaged under the Constitution,” the judgment had reasoned.
But the Reference has also raised questions about a two-judge Bench of the Supreme Court pronouncing judgments on “substantial questions of law regarding the interpretation of the Constitution without referring it to a minimum five-judge Bench as prescribed under Article 145(3) of the Constitution.
The Reference has touched on the basics of Article 200, asking the court to clarify the constitutional options before a Governor when a Bill is presented to him under Article 200.
This is despite the fact that the April 8 judgment had clearly specified that the Governor had three choices – assent, withhold assent or reserve a Bill for consideration by the President. The court had underscored that a Governor could not indefinitely delay a decision on a Bill as it represented the “will of the people”.
Again, the Reference sought the court’s opinion on whether a Governor was bound by the aid and advice tendered by the Council of Ministers under Article 200. The judgment had clearly stated that Governors, as a general rule, had to abide by the aid and advice of the State Cabinet under Article 200 while deciding on Bills.
The Reference has raised doubts as to whether the “constitutional discretion” of Governors and the President under Articles 200 and 201, respectively, was even justiciable. It maintained there were “conflicting judgments” of the Supreme Court.
“Is Article 361 of the Constitution [immunity given to President and Governors from legal action while in office] an absolute bar to judicial review in relation to the actions of a Governor under Article 200?” the Presidential Reference sought.
Justice Pardiwala had clearly dealt with the question while referring to the court’s own past judgments. “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,” the Supreme Court had held.