Why in News?

• The Supreme Court has reserved its opinion on the Presidential reference under Article 143(1) of the Constitution concerning the powers of the President and Governors in granting assent to Bills.
• The reference comes after the SC’s ruling (April 2025) that held Tamil Nadu Governor R. N. Ravi’s delay in assenting to 10 Bills unconstitutional, invoking Article 142 to enforce assent and prescribing timelines.
• This development raises fundamental issues of federalism, separation of powers, and judicial review in India’s constitutional framework.

What’s in Today’s Article?

• Nature of the Reference
• Governor’s Powers - Aid and Advice vs. Discretion
• Governor’s Veto and “Pocket Veto”
• Judicial Enforcement of Timelines
• Fundamental Rights and Writ Jurisdiction
• Larger Constitutional and Political Implications
• Way Forward
• Conclusion

Nature of the Reference:

• Presidential reference under Article 143(1): It enables the President to seek SC’s opinion on questions of law/fact of public importance.
• States’ argument: The reference is an indirect appeal against the SC’s ruling, violating stare decisis - review lies only before the same Bench.
• Centre’s argument: The court’s advisory jurisdiction under Article 143 is distinct, and could be used to clarify constitutional doubts, even if past rulings existed.
• Past practice: SC has earlier refused to answer Presidential references.

Governor’s Powers - Aid and Advice vs. Discretion:

• States’ stance:
  • The governor is bound by the aid and advice of the Council of Ministers (Article 163).
  • Governance must reflect popular mandate, not the Governor’s discretion.
  • Historical rulings of SC have restricted the Governor's role to avoid overreach.
• Centre’s stance:
  • The governor is not a “postman” or “showpiece.”
  • Discretionary powers exist in exceptional circumstances
  • Example: A 2004 Punjab law unilaterally terminated a tripartite river-water sharing treaty, highlighting the importance of a Governor’s discretionary powers. The SC in 2016 declared the law unconstitutional.
  • Data (from 1970 to the present): Only 20 out of 17,000 bills were withheld by Governors, with 90% granted assent within the first month.

Governor’s Veto and “Pocket Veto”:

• SC’s ruling (State of TN vs Governor of TN case): Governor cannot indefinitely withhold assent, concluding that a Governor cannot exercise a “pocket veto” over the elected government.
• Centre’s argument: Withholding assent means the Bill lapses, citing the Government of India Act 1935 as precedent, where the Governor’s “initial withholding was an absolute veto.”
• States’ rebuttal: Governors are not colonial-era Viceroys - such discretions were consciously omitted in the Constitution.

Judicial Enforcement of Timelines:

• SC ruling: Introduced timelines for assent to prevent delays.
• Centre’s objection:
  • Timelines amount to judicial amendment of the Constitution.
  • The Constituent Assembly rejected fixed timelines, replacing a six-week limit with the phrase “as soon as possible” in Article 200.
  • Impasses should be resolved politically through dialogue between the state and the Governor, rather than the court acting as a “judicial headmaster”.
• States’ argument:
  • “As soon as possible” implies urgency.
  • The timelines in the April 2025 ruling did not specify when automatic assent would take place; rather, they specified when judicial review would be available.

Fundamental Rights and Writ Jurisdiction:

• Centre’s position: States cannot invoke Article 32, meant for fundamental rights of individuals.
• States’ counter:
  • Governors act as links between Union and States.
  • Denying writ remedy to states weakens federal balance.
  • Even Andhra Pradesh (where the ruling party is a coalition partner in the Centre) defended states’ right to move SC.

Larger Constitutional and Political Implications:

• Executive vs. judiciary: The reference has become a flashpoint testing limits of judicial review over executive action.
• Polyvocal court challenge: Whether a 5-judge Bench will reaffirm or differ from the 2-judge ruling of April 2025.
• Federalism at stake: Opposition-ruled states back judicial intervention; Centre resists it.
• Impact on democratic governance: Issue of whether Governors’ discretionary power can override popular will of elected legislatures.

Way Forward:

• Clarity on Governor’s role: A constitutional definition of timelines and scope of discretion is necessary to prevent misuse.
• Strengthening federalism: Balance must be maintained between Union authority and state autonomy.
• Judicial prudence: SC must respect separation of powers but ensure constitutional morality is upheld.
• Political dialogue: State–Centre–Governor coordination mechanisms need strengthening to avoid judicialisation of governance.
• Long-term reform: Consideration of a constitutional amendment or codification of Governor’s functions to prevent recurring disputes.

Conclusion: In essence, the Presidential reference will determine how India negotiates the delicate balance between federalism, constitutional conventions, and judicial oversight.