Context

• Walter Bagehot’s reminder that the British monarch has no veto and must even sign her own death-warrant underscores the democratic expectation that the nominal head of state functions without independent political will.
• This principle illuminates the contemporary debate over the role of the Indian Governor under Article 200, where ambiguity about discretion has repeatedly strained Centre–State relations.
• The Supreme Court’s recent advisory opinion attempts clarification, yet its implications reveal deeper tensions between constitutional design and political practice.

Historical Foundations and Constitutional Intent

• The Government of India Act, 1935 vested substantial discretionary power in Governors, including the ability to assent, withhold assent, or return Bills.
• The framers of the Indian Constitution consciously departed from this colonial model.
• During the evolution of draft Article 175, the Constituent Assembly removed references to discretion, signalling a commitment to a parliamentary system in which the Governor acts on the aid and advice of the Council of Ministers.
• This intended transformation placed the Governor as a figurehead akin to Bagehot’s constitutional monarch, with no personal political mandate.
• Yet practice has never fully aligned with this vision.
• Shifts in political alliances, party discipline, and the potential for partisan interference have kept the question of gubernatorial authority unresolved and often contentious.

Judicial Interpretation and the Expansion of Discretion

• The Supreme Court recently considered whether the Governor possesses implied discretion under Article 200 and whether timelines can be imposed for decisions on Bills.
• The Court affirmed that discretion exists in assenting, withholding, or reserving Bills, and concluded that mandatory timelines cannot be judicially prescribed. Judicial review is limited to cases of prolonged, unexplained, or indefinite delay.
• This stance reintroduces discretionary space that the framers had consciously excluded. The Court argued that the anti-defection law and strict party whips ensure unified legislative action, making it unlikely that a Bill could pass without cabinet support.
• Therefore, the Governor may need discretion if advice is unconstitutional or contrary to the text.
• However, this reasoning overlooks politically plausible scenarios where coalitions shift, and a new ministry may legitimately reconsider a Bill passed under a previous alliance.
• Constitutional advisor N. Rau noted such situations, cautioning against assumptions of stable legislative intent.
• Moreover, safeguards already exist: a Governor confronted with blatantly unconstitutional advice may act under Article 356 without relying on ministerial recommendation.

Political Realities and Institutional Friction

• Expansive discretion becomes problematic in a political context where Governors are often perceived as extensions of the Union executive.
• Soli Sorabjee’s criticism of the office becoming a consolation prize for burnt-out politicians highlights concerns about impartiality.
• When different parties control the Union and the State, the Governor’s actions, particularly strategic delays or reservations of Bills, can escalate tensions.
• Historical evidence shows repeated misuse of delays. Former Karnataka Chief Minister Ramakrishna Hegde documented that 74 Bills awaited presidential assent for years, with some pending for six to seven years.
• Such delays amount to a de facto veto, despite the Constitution providing none.

Risks of Over-Broad Discretion: Toward Gubernatorial Governance?

• By affirming implied discretion and placing many actions beyond judicial review, the Court’s opinion risks enabling a form of gubernatorial governance where unelected officers influence legislative outcomes.
• This development contradicts the democratic architecture in which the legislature and its accountable executive should dominate policy-making.
• Doctrinal uncertainty also emerges. The advisory opinion diverges from reasoning in the earlier Tamil Nadu case, potentially encouraging broader assertions of discretion unless constitutional amendments define tighter boundaries.
• A system that permits significant delays or unilateral gubernatorial decisions threatens the federal balance and weakens the authority of elected State governments.

A Path Forward: Timelines and Reduced Discretion

• A stable federal structure requires clearer limits on gubernatorial authority.
• Introducing constitutional timelines for assent would prevent obstruction through delay and enhance transparency.
• Reinforcing the principle that discretion exists only in the narrow exceptions envisaged by the framers would restore alignment with parliamentary conventions.
• Additionally, revisiting the mode of appointment, as recommended by multiple commissions, would mitigate perceptions of partisanship and strengthen institutional legitimacy.

Conclusion

• The relationship between the legislature and the constitutional head in a parliamentary system demands clarity, restraint, and respect for democratic accountability.
• Gubernatorial authority under Article 200 remains one of the most significant unresolved constitutional challenges in India.
• Without reforms, especially defined timelines and narrowed discretion, the risk persists that an office intended to be ceremonial will continue to shape legislation in ways neither envisioned by the framers nor conducive to healthy federalism.