The Supreme Court's opinion on the presidential reference can impact on any number of cases if and when governors, if not the President, take a literary view of the Supreme Court's 'ppinion' on their 'discretionary powers' without reference to the rider on 'reasonable time', points out N Sathiya Moorthy.
While the Supreme Court's opinion that the judiciary cannot fix 'time-lines' or grant 'deemed assent' where a governor has delayed his decision on a bill passed by a state legislature is taken, the five-judge Constitution Bench upholding the 'discretionary powers' available to the holder of gubernatorial office with riders may have consequences.
In particular, the latter clause along with the rider has the potential to cause a multiplicity of litigations before the apex court in particular, and the possibility of different benches of the court coming up with different interpretations and passing different orders, when taken up on a 'case-by-case' basis, can complicate the prevailing confusion.
The Presidential reference, as may be recalled, stemmed from a two-judge bench verdict of Justices J B Pardiwala and R Mahadevan, that Tamil Nadu Governor R N Ravi does not have 'pocket veto' or 'absolute veto' to deny assent to bills (at times twice) passed by the state assembly.
The bench's suo motu declaration that if the governor did not communicate a decision to the assembly for three months, it would be 'deemed' to have received such assent.
With this, the bench granted 'deemed assent' to 10 bills passed twice by the assembly after the governor had returned the original with his comments.
A 'vacation bench' of the Madras high court overnight stayed the operation of the deemed assent to the bills that made the chief minister the appointing authority for vice-chancellors in 10 universities of the state government, even while retaining the governor as the chancellor (a point often missed by some commentators).
The Presidential reference flowed from this order of the two-Judge bench and was keenly expected.
There were multiple questions like the powers of the judiciary to fetter the higher executive, namely, the President and governors, beyond what is specifically prescribed in the Constitution.
On both issues, the five-judge bench chaired by outgoing Chief Justice B R Gavai unanimously held that the higher judiciary cannot take away the 'discretionary powers' attaching to the gubernatorial office.
However, those 'discretionary powers' should be employed within a 'reasonable time'.
The court left the phrase 'reasonable time' undefined, with the result the opinion has put it all back on square one, as it existed before the order of the two-judge bench.
In particular, the Constitution Bench held that individual cases of gubernatorial delays could be/have to be litigated separately, (possibly) for (different) benches of the apex court taking dis-similar positions at times, when considered on a case-by-case basis.
However, the five-judge bench refused to respond to another query on the 14-point Presidential reference.
It pertained to the possibility of and need for the original bench to refer the matter back to the Chief Justice if they found that it required a Constitutional interpretation of the laws, for him to proceed accordingly.
It is a lacuna, and can impact any number of cases if and when governors, if not the President, take a literary view of the Supreme Court's 'opinion' on their 'discretionary powers' without reference to the rider on 'reasonable time'.
After all, the pending cases were all about the same issue, and the opinion has left it precisely where it all began.
Of course, in this particular case, the Tamil Nadu government has to take forward the order of the vacation bench, which rarely passes stay orders on such matters.
Generally, they issue notices to the parties concerned -- the Tamil Nadu government in this case -- on a petition filed by a private party, for a regular bench to hear and dispose of, in due course.
Otherwise, the Supreme Court's opinion is a private communication with the President, who had made the reference in the first place.
It is not binding on the recipient, as the President can turn down one or many or all the responses/opinion of the apex court.
The question also arises if otherwise, too, the Presidential opinion has any teeth. 'No' is the answer.
Apart from a personal communication, which has been duly publicised -- no questions -- this is one of the rare occasions that a Presidential reference has sought clarifications on a matter flowing out of a Supreme Court verdict, without mentioning it.
Hence, prima facie, the opinion per se does not apply to the two-judge bench verdict, so to say.
Does it then mean that the governor, who was the respondent in the matter decided by the two-judge Bench, should move a 'review' petition -- assuming that the high court stay does not exist?
Even in such a case, does the Supreme Court's opinion have any teeth to alter/upturn the two-judge verdict?
In effect, the opinion can only be mentioned before any new bench as the Constitutional assembly debates are mentioned.
There should still be a legal paradigm to write in the opinion into any case proceedings. Of course, another bench/benches can cite references made before it to the opinion, and use it as a peg to hang its verdict from.
In the Kesavananda Bharati case (1973), the only one of its kind to be decided by a 13-judge bench of the Supreme Court, it was indicated that the 'basic structure' of the Constitution is supreme.
Of course, cases like the 'Government of Tamil Nadu vs Governor of Tamil Nadu' (2025) sought to rekindle long political and legal debates on the legislature-governor relations (the state government does not figure), which have the potential to weaken the 'basic structure', by whatever name and means called.
That is because by sitting on a bill (at times passed twice by the assembly, as mandated by the Constitution on occasions) for an inexplicably long time, the governor of a state is actually weakening the purpose and spirit of the Constitution and the intelligence and imagination of the Founding Fathers.
In the particular case before the two-judge bench, the governor is not known to have volunteered any 'reasonable' explanation for the delay in his decision.
Incidentally, the 10-bill case is not the only one. There have been others before this one.
The opinion does declare that the governor has discretionary power not to consult, or abide by the advice of the council of ministers.
By extension, however, it implies that the decisions taken by the governor may be otherwise justiciable -- just as a decision taken by the governor by accepting the advice of the council of ministers could still be challenged before the higher judiciary.
It may be a standalone response to a standalone query in the Presidential reference.
But independent of the reference and otherwise related to it, even if remotely, the issue on hand was a matter pertaining to the governor and the legislature.
Here, the Constitution is clear that the governor has no discretion if the assembly had passed the relevant bill the second time after considering the governor's observations while denying assent the first time.
Yes, going by the opinion, the governor can refer the matter to the President. Otherwise, the 'discretion' in the matter, post-opinion, is limited to the undefined, hence unrestricted (?) 'reasonable time' available to the governor to give his assent.
It is another matter that unlike in the case of governors, the Supreme Court verdict in U N R Rao vs Indira Gandhi (1971) clearly stated that even when the Lok Sabha has been dissolved pending fresh elections, the President shall act on the advice of a (caretaker) ministry, under a prime minister.
The idea was to ensure that no President became a Constitutional autocrat or dictator.
In fact, the 42nd Amendment to the Constitution, enacted during Emergency, made the U N R Rao verdict into law.
In political terms, neither the post-Emergency Janata Party successor under Morarji Desai, nor any of those that followed, including the two BJP-led governments of Atal Bihari Vajpayee (1998-2004) and now Narendra Modi through the past 11 years, has done anything to undo this part of the otherwise despised 42nd Amendment.
It is also true that the governor has 'discretionary powers' on specific matters.
On the issue of granting pardon to prisoners, the Supreme Court, responding to one of the multiple petitions in the 'Indira Gandhi assassination case', did hold that the President's power in the matter is 'objective' and bound by the aid and advice of the council of ministers, and not 'subjective' (or discretionary).
Another area where the governor/President has discretionary powers is in the choice of a chief minister/prime minister in a hung assembly/Parliament, whenever it occurs.
As far back as 1994 (S R Bommai case) the Supreme Court placed some kind of a fetter on the governor's (also the President's) discretionary power by holding the governor's decision suo motu justiciable, with the elected legislature (and not the lawns of the gubernatorial Bhavans) as the venue for proving the majority of such governments.
What is even more interesting and effective was the Supreme Court's application of the Bommai verdict in Nitish Kumar vs Buta Singh (2005).
The court rebuked then Bihar governor Buta Singh for claiming horse-trading in a hung assembly without evidence -- and also the UPA-I government of then prime minister Manmohan Singh for acting on the same without verifying ground realities.
The court restored the Nitish Kumar government, leading to Buta Singh's resignation.
Another aspect of the governor's 'discretionary' power pertains to his powers to recommend President's rule and also the dissolution of the state legislature, under Article 356.
This one is not about a court ruling. In 1991, then Tamil Nadu governor Surjit Singh Barnala refused to 'recommend' President's rule in the state, then ruled by the DMK's M Karunanidhi, as ordinarily required under Article 356.
Then prime minister Chandra Shekar's dispensation resorted to the 'otherwise' clause in 356, to dismiss the state government, dissolve the state assembly without the governor's recommendation --- the kind of situation the Founding Fathers had possibly visualised.
In this case, it was the Centre, and not any state cabinet or the courts, that side-stepped the 'discretionary powers' of Governor Barnala, under the stamp and seal of then President R Venkataraman.
Amen!
N Sathiya Moorthy, veteran journalist and author, is a Chennai-based policy analyst and political commentator
Feature Presentation: Aslam Hunani/Rediff
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