From Deemed Assent to Dialogic Federalism: The Supreme Court’s Recalibration of Gubernatorial and Presidential Powers under Articles 200 and 201

From Deemed Assent to Dialogic Federalism: The Supreme Court’s Recalibration of Gubernatorial and Presidential Powers under Articles 200 and 201

I. Introduction

The Constitution Bench opinion in Special Reference No. 1 of 2025 – In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India (2025 INSC 1333) is one of the most far‑reaching constitutional pronouncements on the functioning of State Governors and the President in the Indian federal structure.

The reference, made by the President under Article 143(1), sought the Supreme Court’s advisory opinion on fourteen questions concerning:

  • the scope of the Governor’s powers under Article 200 (assent, withholding, and reservation of State Bills);
  • the scope of the President’s powers under Article 201 (assent or withholding of assent to reserved Bills);
  • whether these functions are justiciable and subject to judicially imposed time-limits;
  • whether, and to what extent, Article 142 (complete justice) permits judicial innovation such as “deemed assent”;
  • the interplay of Article 361 (immunity of President and Governors) with judicial review; and
  • ancillary questions on Article 145(3), Article 131 and the outer limits of Article 142.

The immediate backdrop was the Court’s earlier decision in State of Tamil Nadu v. Governor of Tamil Nadu, 2025 INSC 481; (2025) 8 SCC 1, where a two‑Judge Bench had:

  • prescribed fixed timelines for Governors and the President to act on Bills;
  • held that their actions under Articles 200 and 201 were largely justiciable;
  • suggested scope for “deemed assent” via Article 142; and
  • read the Governor as bound by the Council of Ministers’ advice in most aspects of Article 200.

These conclusions generated considerable constitutional controversy and practical uncertainty. The Union sought an advisory opinion to “clarify” and, in effect, to re-set the legal position.

The present opinion does not sit in appeal over that judgment’s final relief, but it squarely disapproves several of its legal propositions. In the process, the Court:

  • reconstructs the correct reading of Article 200 (no absolute veto; structured options);
  • reaffirms gubernatorial discretion under Article 200, independent of ministerial advice;
  • rejects the concepts of judicially fixed timelines and deemed assent as unconstitutional; and
  • insists that assent, withholding and reservation under Articles 200 and 201 are non‑justiciable, subject only to a narrow remedial power to compel action where there is prolonged inaction.

This commentary unpacks the Court’s reasoning, engages with the precedents it relies on, explains complex doctrines in simpler language, and assesses the likely impact of this “functional reference” on Indian constitutional practice.

II. Overview of the Reference and Proceedings

1. The Fourteen Questions

The President’s reference (13 May 2025) set out a long contextual preamble on:

  • the absence of timeframes in Articles 200 and 201;
  • the federal and polycentric nature of the discretion vested in Governors and the President;
  • conflicting Supreme Court judgments on justiciability of Presidential assent;
  • States increasingly invoking Article 32 (rather than Article 131) to litigate federal issues; and
  • the need to clarify the ambit of Article 142 regarding areas already covered by constitutional or statutory provisions.

The reference then posed 14 specific questions (paras 1–31), of which the core clusters were:

  1. Options before a Governor under Article 200, and whether he is bound by ministerial advice.
  2. Justiciability of the Governor’s and President’s actions under Articles 200/201, including time-limits and “deemed assent”.
  3. Whether Article 361 is an absolute bar to judicial review of gubernatorial actions under Article 200.
  4. Whether Article 142 can substitute or override constitutional powers of Governor/President.
  5. Whether a State law can be in force without gubernatorial assent.
  6. Broader questions on Article 145(3) (bench strength), the reach of Article 142, and whether Article 131 is the exclusive forum for Union–State disputes.

2. Parties and Representation

The Court heard an extraordinarily wide array of stakeholders:

  • Union of India, represented by the Solicitor General, with the Attorney General assisting the Court.
  • Multiple States and Union Territories, some supporting the reference (Madhya Pradesh, Maharashtra, Rajasthan, Odisha, Uttar Pradesh, Goa, Puducherry, Haryana), others opposing it (Tamil Nadu, Kerala, West Bengal, Karnataka, Himachal Pradesh, Punjab, Telangana, Meghalaya).
  • Intervenors represented by several senior advocates and constitutional scholars.

A central divide emerged:

  • Supporters argued for a broad reading of gubernatorial discretion, non‑justiciability and the impermissibility of judicially created timelines or deemed assent.
  • Opponents defended the State of Tamil Nadu judgment, contended that the reference was an impermissible “appeal in disguise”, and argued that Governors are essentially bound by ministerial advice, with failures to act being judicially correctable.

3. Maintainability and Scope of Advisory Jurisdiction

A critical preliminary issue was whether the reference itself was maintainable under Article 143(1), i.e. whether:

  • there truly existed “questions of law or fact” that had arisen or were likely to arise; or
  • the reference was merely a device to revisit a binding judgment (State of Tamil Nadu) without following review/curative procedures.

The Court undertook an extensive survey of prior references under Article 143(1) (Delhi Laws Act, Kerala Education Bill, Berubari, Keshav Singh reference, Special Courts Bill, Cauvery (2), the Babri Masjid reference, Judges cases reference, Natural Resources Allocation, Punjab Termination of Agreements, etc.) and drew several conclusions:

  • This was the first truly “functional” reference, addressing day‑to‑day constitutional mechanics of law‑making (Governor, Legislature, President), unlike earlier references which addressed discrete constitutional controversies.
  • Confusion had arisen after State of Tamil Nadu on:
    • Governor’s options under Article 200;
    • whether he is bound by ministerial advice;
    • justiciability of Articles 200 and 201; and
    • time-limits and deemed assent.
    This confusion affected all States, not just the litigating parties in that case.
  • The President was legitimately satisfied that these were questions “of such public importance” as to warrant the Court’s opinion (Art. 143(1)).

The Court also clarified the relationship between advisory opinions and prior precedents:

  • Following Special Courts Bill, 1978 and Natural Resources Allocation, an opinion under Article 143, though advisory, is binding on all other courts; the Supreme Court itself may revisit its own “view of law”, even in advisory jurisdiction, but cannot reopen a concluded decree between parties.
  • They distinguished Cauvery (2) (which had cautioned against using Article 143 to “appeal” a Supreme Court decision) by emphasizing the difference between:
    • “Decision” in a particular lis (only revisable via review/curative jurisdiction); and
    • “View of law” laid down in that decision (which can be reconsidered in a proper case, including in a reference).

Thus, the reference was held maintainable; the Court accepted its “institutional responsibility” to clarify the law, while acknowledging that it could decline to answer individual questions that were vague, overbroad or not serving a constitutional purpose.

It then declined to answer:

  • Question 12 (bench composition under Article 145(3) for substantial constitutional questions); and
  • Question 14 (whether Article 131 is the exclusive route for Union–State disputes),

on the ground that these were irrelevant to the functional nature of this reference.

III. Summary of the Court’s Core Holdings

For ease of reference, the Court summarised its own conclusions at para 165. They can be restated in analytical form as follows:

1. Options under Article 200 – No Absolute Veto

  • A Governor, when a Bill is presented to him under Article 200, has exactly three options:
    1. Assent to the Bill;
    2. Reserve the Bill for the consideration of the President; or
    3. Withhold assent and return the Bill (if not a Money Bill) to the Legislature with a message requesting reconsideration.
  • There is no power to “simply withhold” assent so as to kill the Bill outright. The first proviso to Article 200 doesn’t create a fourth option; it qualifies and restricts the meaning of “withholds assent” in the main clause.
  • In the case of a Money Bill, the Governor cannot return it (proviso is inapplicable). His options are only:
    • assent; or
    • reserve for President.

2. Gubernatorial Discretion vs Aid and Advice

  • Under Article 163, the Governor normally acts on the aid and advice of the Council of Ministers.
  • However, the Court holds that Article 200 vests “discretion” in the Governor, i.e. he is not bound by ministerial advice when choosing between assent, return, or reservation for the President.
  • This discretion is rooted both in:
    • the text and structure of Article 200 (including the second proviso: “in the opinion of the Governor”); and
    • the wider constitutional role of the Governor as a federal sentinel who must sometimes independently decide to involve the President.

3. Options After Reconsideration by the Legislature

  • If the Governor has returned a (non‑Money) Bill to the Legislature with a message, and the Legislature passes it again (with or without amendments), the Governor:
    • cannot withhold assent; that option is exhausted; but
    • still retains the option to reserve the Bill for the President.

4. No Judicially Imposed Time Limits; No Deemed Assent

  • Neither Article 200 nor Article 201 prescribes any time limit for the Governor or the President to act.
  • Given this deliberate silence, courts cannot read in fixed timelines for their decisions.
  • Accordingly, the timelines prescribed in State of Tamil Nadu for Governors and the President are held to be erroneous; the discussion on timelines for Article 201 is characterised as obiter.
  • By the same logic, there can be no “deemed assent” either:
    • Deeming provisions exist elsewhere in the Constitution (e.g. Articles 109, 198) and are consciously absent from Articles 200 and 201.
    • Using Article 142 to deem assent would amount to an impermissible substitution of constitutional function and violate separation of powers.

5. Justiciability: Very Narrow Window

  • The substantive choices of the Governor under Article 200 and of the President under Article 201 — whether to assent, reserve, or return a Bill, or to withhold assent — are largely non‑justiciable.
    • Courts cannot conduct a merits review of these decisions (e.g. whether a particular Bill should have been reserved, or assented to).
    • Courts cannot subject the contents of a Bill to judicial review before it becomes “law”.
  • The only judicially cognizable grievance is prolonged, unexplained, indefinite inaction — where the Governor (or President) fails to act at all on a Bill.
    • In such cases, courts can issue a limited mandamus directing the constitutional functionary to take one of the options available under Articles 200/201 within a reasonable time.
    • The Court cannot dictate which option must be chosen.

6. Article 361 and Judicial Review

  • Article 361 grants the President and Governors personal immunity:
    • they are “not answerable to any court” for exercise of their official powers;
    • no criminal proceedings, arrest or civil suits can be instituted against them during their term, subject to limited exceptions.
  • Following Rameshwar Prasad (VI), this immunity:
    • bars courts from issuing process directly against the Governor (e.g. summons, directions to file affidavits); but
    • does not shield the constitutional office from judicial scrutiny of the validity of actions (or inaction) — which may be defended by the State Government.
  • Accordingly:
    • Article 361 is not an absolute bar to judicial review of inaction under Article 200; it only protects the person of the Governor.

7. Scope of Article 142 in this Context

  • Article 142 confers a broad power to do “complete justice”, including departing from ordinary procedure and even from some aspects of substantive law.
  • However, that power cannot be used to:
    • supplant express constitutional provisions;
    • create a deemed assent mechanism not found in Articles 200/201; or
    • substitute the constitutional decision-making role of the Governor/President.
  • The use of Article 142 in State of Tamil Nadu to engineer “deemed assent” after judicially fixed timelines is therefore rejected.

8. Miscellaneous Conclusions

  • A State law cannot be in force without the Governor’s assent under Article 200 (subject to the special case of reservation and Presidential assent under Article 201). There is no bypass mechanism.
  • The President is not obliged to seek the Supreme Court’s advice under Article 143 for every reserved Bill; such references are optional tools at the President’s disposal.

IV. Article 143, Precedents, and the Court’s Institutional Role

1. The “Functional Reference” and Institutional Duty

A distinctive feature of this opinion is its conception of Article 143 references as a form of “constitutional dialogue” between the Executive and the Judiciary. The Court emphasises that:

  • the power and duty to interpret the Constitution is vested in the judiciary, and
  • the advisory jurisdiction is an institutional mechanism for clarifying constitutional questions whose resolution affects the functioning of multiple organs.

Given the practical constitutional deadlocks arising around gubernatorial assent and reservation of Bills (and conflicting case-law), the Court views this reference as inevitable and necessary.

2. Dealing with the Cauvery (2) Objection

Opponents of the reference leaned heavily on Cauvery Water Disputes Tribunal, In Re (Cauvery (2)), where the Court had warned:

  • that the President cannot use Article 143 to confer an appellate jurisdiction over a prior Supreme Court decision; and
  • that once the Court has decided a question of law, there is ordinarily no “doubt” warranting a reference on the same point.

The present Bench, however, adopts the Natural Resources Allocation clarification:

  • A final decree between parties in a lis is final, and can be reopened only through review or curative jurisdiction.
  • But the legal principles (view of law) underlying that decree can be revisited, clarified, or even overruled in an appropriate case, including under Article 143, if done without disturbing the operative decree.

This doctrinal distinction allows the Court to disagree with and displace certain legal propositions in State of Tamil Nadu (timelines, deemed assent, justiciability), while not setting aside the specific reliefs granted in that case.

V. Article 200: Options Before the Governor and Their Reconstruction

1. Competing Textual Readings

A central controversy was: How many options does a Governor have when presented with a Bill under Article 200?

Literal reading (Union & supporting States):

  • The main clause of Article 200 uses the disjunctive “or”:
    • assent;
    • withhold assent; or
    • reserve for President.
  • The first proviso allows the Governor to return a non‑Money Bill with a message for reconsideration.
    Hence, a total of four distinct options (withholding simpliciter plus returning).

Qualificatory reading (opposite side and ultimately the Court):

  • The first proviso does not create a separate fourth option. Rather, it qualifies and conditions the meaning of “withholds assent” by:
    • insisting that withholding must take the form of a return with a message (for Bills that are not Money Bills); and
    • stipulating that if the Bill is passed again (with or without amendments) and presented, the Governor “shall not withhold assent”.
  • Thus, there is no residual power to “withhold assent” simpliciter.

2. Why the Court Rejects a Simpliciter Veto

The Court gives several interlocking reasons for preferring the qualificatory reading:

  1. Internal textual cross-reference: the first proviso uses the same verb “withhold” and directly speaks of “shall not withhold assent” after reconsideration. This strongly suggests that the proviso conditions, rather than supplements, the main clause.
  2. Comparative structure with second proviso:
    • The second proviso similarly qualifies the main options, by mandating that if, in the Governor’s opinion, the Bill derogates from the powers of the High Court, he “shall not assent” but “shall reserve” it for the President.
    • Both provisos, therefore, are seen as restrictions on the Governor’s otherwise broad-textual options, not as sources of extra powers.
  3. Money Bills paradox:
    • The first proviso explicitly excludes Money Bills (“if it is not a Money Bill”).
    • If “withhold” in the main clause conferred a simple veto, the Governor could kill a Money Bill outright—a result wholly inconsistent with the special fast-tracked treatment and reduced role of the Legislative Council in the case of Money Bills (Arts. 198, 199, 207).
  4. Dialogic constitutionalism:
    • The Constitution, the Court emphasises, favours dialogue and deliberation between institutions over outright deadlocks.
    • Requiring the Governor to return a Bill with reasons (instead of silently vetoing) encourages:
      • legislative reconsideration;
      • possible accommodation of concerns; and
      • ultimately, either assent or escalation to the President, not permanent stasis.
  5. Historical contextualisation:
    • Section 12 of the Government of India Act, 1919, explicitly used “instead of declaring that he assents to or withholds his assent…” before speaking of return for reconsideration, thus clearly and separately structuring options.
    • The framers consciously departed from this phraseology in Article 200, indicating a different design.

The upshot is a significant doctrinal shift: the Governor does not possess an unstructured veto. The only way to “withhold” assent at the first instance is to return the Bill with a message.

3. Federalism and the Dialogic Model

The Court anchors its reading in a rich survey of Indian federalism jurisprudence (State of Rajasthan v. Union of India, State of West Bengal v. Union of India, S.R. Bommai, ITC Ltd., Kuldip Nayar, Government of NCT of Delhi v. Union of India, Article 370, In Re), emphasising:

  • India’s federalism is multi‑faceted (not reducible to a single label such as “quasi‑federal” or “cooperative federalism”);
  • States enjoy constitutional autonomy within their allotted legislative domains; and
  • the Constitution builds in checks and balances that are often dialogic rather than purely negative (override vs nullification).

Seen thus, Article 200’s structure — empowering the Governor to return Bills with comments, and to reserve certain Bills for the President whose functions under Article 201 include a further return with message — fits a model of:

  • Multi‑layered scrutiny of legislation affecting federal balance, High Court powers, or inter‑State interests;
  • Iterative law-making where controversial Bills can be refined through back‑and‑forth; and
  • Institutional respect for both State autonomy and national cohesion.

VI. Discretion vs Aid and Advice under Article 163 in the Context of Article 200

1. The Article 163 Framework

Article 163(1) establishes a Council of Ministers “to aid and advise the Governor” in exercise of his functions, “except in so far as he is by or under this Constitution required to exercise his functions … in his discretion.”

Article 163(2) adds that if a question arises whether any matter is such a matter, the Governor’s decision thereon is final and not justiciable, but, as later case-law clarifies, this clause does not itself create a vast undefined discretion; it presupposes situations where the Constitution already demands or implies discretion.

2. The Earlier Precedents

Three Constitution Bench decisions are central:

  1. Samsher Singh v. State of Punjab (7‑Judge Bench):
    • Affirmed that the Governor is generally bound by ministerial advice.
    • Recognised limited areas where the Governor could act in his discretion (e.g. report under Article 356; mandatory reservation of Bills derogating from High Court powers under the second proviso to Article 200).
  2. MP Special Police Establishment v. State of M.P. (5‑Judge Bench):
    • Clarified that Article 163(2) implies there may be matters where the Governor acts in his discretion even though the Constitution does not explicitly say so.
    • Identified situations of “peril to democracy or democratic principles” or where the Council of Ministers is itself biased or conflicted.
  3. Nabam Rebia & Bamang Felix v. Arunachal Pradesh Legislative Assembly (5‑Judge Bench):
    • Endorsed the Punchhi Commission’s view that the Governor’s discretionary powers under Article 163 must be narrowly construed but do exist in specific contexts.
    • Enumerated the Governor’s discretionary powers, explicitly including assent/withholding/reservation under Article 200.

A later 2‑Judge Bench in State of Tamil Nadu had read Samsher Singh to mean that only the second proviso to Article 200 (High Court‑related Bills) involved discretion, and that other options under Article 200 had to follow Council of Ministers’ advice. The present Bench holds this reading to be incorrect.

3. The Present Court’s Position

The Court synthesises the line of precedents and articulates the following tripartite position (para 81):

  1. General rule: The Governor ordinarily acts on the aid and advice of the Council of Ministers in all functions.
  2. Express discretion: Certain provisions (e.g. Article 239(2), various clauses of Article 371‑A, parts of the Sixth Schedule) explicitly require the Governor to act in his discretion.
  3. Implied discretion: In other provisions, discretion arises by necessary implication where:
    • the text read with structure and purpose demands an independent judgment; or
    • a contrary reading would frustrate other constitutional provisions or fundamental principles.

Article 200, the Court holds, is such a case of implied discretion:

  • The Constitution, in numerous places (Art. 31A proviso, 31C proviso, 254(2), 288(2), 360), makes the effectiveness of certain State laws conditional on:
    • their being reserved for President’s consideration; and
    • receiving the President’s assent.
  • The precondition of “having been reserved” can only be satisfied if the Governor independently discharges the function of reservation; it cannot be left entirely to ministerial advice, especially when the same Council that steered the Bill may be disincentivised from seeking Presidential scrutiny.
  • The Governor, like the President, has taken an oath to “preserve, protect and defend the Constitution” (Arts. 159, 60); reading out discretion under Article 200 would hinder performance of that duty.

On this basis, the Court concludes:

“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.” (para 87)

The phrase “in the opinion of the Governor” in the second proviso is thus treated as confirmatory, not confining of discretion: it expressly highlights one scenario, but does not exhaust the Governor’s inherent discretion in the whole of Article 200.

4. Rejection of the State of Tamil Nadu Approach

The Court explicitly disagrees with the conclusions in State of Tamil Nadu that:

  • only the second proviso to Article 200 involves discretion; and
  • other aspects are subject to Council of Ministers’ binding advice.

Those conclusions are characterised as the result of a partial reading of Samsher Singh, MP Special Police Establishment, and Nabam Rebia, and therefore not good law.

VII. After Reconsideration: Can the Governor Still Reserve the Bill?

A more subtle question addressed is: once the Legislature has reconsidered a returned Bill and passed it again, does the Governor have any options other than assent?

The first proviso to Article 200 says that after reconsideration and re‑passage, “the Governor shall not withhold assent therefrom.” On that basis, some had argued that the only remaining option was to assent.

The Court disagrees and reasons that:

  • This proviso bars only withholding (already a qualified concept), not reservation.
  • The second proviso (High Court derogation) and the various Articles making Presidential assent mandatory in specific situations (e.g. Art. 31A, 31C, 254(2)) apply regardless of whether:
    • the Bill is in its original form; or
    • is in an amended form after reconsideration (which may introduce repugnancy or constitutional concerns).

Therefore, even at the second stage (after reconsideration), the Governor still has:

  • an option to assent; or
  • an option to reserve the Bill for the President.

He cannot, however, “withhold” in the sense of killing the Bill without assent or reservation.

VIII. Timelines, “As Soon As Possible”, and the Rejection of Deemed Assent

1. Constitutional Silence on Deadlines

The Constitution contains numerous provisions with explicit time limits — for example:

  • Article 22 (production of arrested persons and communication of grounds);
  • Article 62 (Presidential election timelines);
  • Article 174 (interval between legislative sessions);
  • Article 198 & 109 (Money Bill return periods);
  • Article 356 (duration of President’s Rule), and many others.

By contrast, Articles 200 and 201 are silent on any deadline for the Governor’s or President’s actions, except:

  • The first proviso to Article 200 uses the phrase “as soon as possible after the presentation” for return of a Bill with a message.
  • The proviso to Article 201 requires the Legislature to reconsider a returned Bill within six months.

A 5‑Judge Bench in Purushothaman Nambudiri (1961) had already observed that this lack of time-limits was significant, especially in connection with whether Bills pending assent lapse on dissolution of the Assembly (they do not).

2. State of Tamil Nadu’s Timelines and Their Disapproval

The State of Tamil Nadu Bench had crafted a detailed set of outer time-limits for Governors to act (1 month, 3 months in different scenarios) and for President’s action under Article 201, and proposed that failure to adhere could justify:

  • judicial directions compelling decisions; and
  • in “exceptional cases”, deemed assent under Article 142.

The present Bench holds this approach to be fundamentally flawed:

  • Constitutional silence on time-limits in Articles 200/201, especially when contrasted with express limits elsewhere, is a matter of deliberate design.
  • The phrase “as soon as possible” in Article 200’s proviso is a context-specific exhortation, not a gateway for importing judicially fixed deadlines for all options.
  • Transplanting precedents involving time-bound quasi‑judicial functions (e.g. Keisham Meghachandra on Speaker’s decisions under the Tenth Schedule; Durga Pada Ghosh on preventive detention) to the legislative process under Articles 200/201 is inappropriate.

3. Article 142 and the Limits of “Complete Justice”

The Court then addresses the use of Article 142 to create “deemed assent” as in State of Tamil Nadu, in light of prior decisions like Prem Chand Garg, Supreme Court Bar Association, Union Carbide, and Shilpa Sailesh:

  • Article 142 allows the Court to depart from general procedures and even from ordinary statutory provisions in suitable cases.
  • However, it cannot be used to:
    • override or contradict express constitutional text;
    • build a new constitutional mechanism (such as deemed assent) that is conspicuously absent from the Constitution’s structure; or
    • effectively reallocate constitutional functions among organs.

The Court explicitly distinguishes A.G. Perarivalan (2022), where Article 142 was used to deem a sentence as served in the context of an Article 161 pardon petition:

  • That case did not create a deemed pardon; it moulded relief in a concrete criminal matter, on account of extraordinary delay and other equities.
  • Using that precedent to justify institutional redesign of Article 200/201 processes is unwarranted.

The Court concludes that:

“The concept of deemed assent of 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.” (para 118)

Hence, both:

  • judicially imposed fixed timelines, and
  • deemed assent as a consequence of their expiry,

are constitutionally impermissible.

IX. Justiciability of Actions under Articles 200 and 201

1. Prior Case-Law on Justiciability of Assent

Several decisions had grappled with whether Presidential or gubernatorial assent could be challenged:

  • Kameshwar Singh (1952): held that for laws protected by former Article 31(3), the President’s assent on a reserved Bill was based on his subjective opinion and “not justiciable”.
  • Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983):
    • Assent under Article 254(2) was held not justiciable.
    • Even if reservation was unnecessary, once assented to by the President, the Act could not be invalidated on that ground.
  • Bharat Sevashram Sangh v. State of Gujarat (1986):
    • While examining whether the President had given a “conditional” assent, the Court looked at the record but endorsed Hoechst and reiterated that Presidential assent is not justiciable.
  • Kaiser-i-Hind (P) Ltd. v. NTC (2002):
    • Clarified that while the Court can examine whether assent was sought and granted qua particular repugnancies, it does not review the validity of the President’s assent decisions.
  • B.K. Pavitra v. Union of India (2019): reiterated that Presidential assent under Article 201 is non‑justiciable, following Hoechst.

State of Tamil Nadu had sought to distinguish or sidestep these precedents to declare assent and reservation justiciable, but the present Bench rejects that approach as inconsistent with the binding precedents.

2. No Merits Review of Assent, Reservation, or Return

From the above authorities and its own reasoning, the Court holds:

  • The actions of assenting, withholding, reserving, or returning Bills under Articles 200 and 201 form part of the internal legislative process / legislative procedure.
  • They are not subject to judicial review on:
    • whether the Governor/President ought to have reserved;
    • whether their reasons were sufficient or correct; or
    • whether a Bill was “truly” repugnant, warranted High Court derogation concerns, or engaged other reservation-triggering provisions.
  • Accepting merits review would have perverse consequences:
    • Assent itself could become a ground to challenge an Act, with courts effectively second-guessing whether a Bill should have been reserved instead.
    • Courts would be forced into adjudicating on the content of Bills before they are law, an alien concept to Indian constitutional practice.

Instead, the Court reaffirms a clean separation:

  • Before a Bill becomes law:
    • No judicial adjudication of its contents — except via Article 143 advisory opinion at the President’s instance.
  • After it becomes law:
    • Full judicial review is available on whether the resulting Act:
      • is within legislative competence;
      • violates fundamental rights;
      • breaches other constitutional provisions; or
      • fails to satisfy any special assent/Reservation requirements.

3. Limited Judicial Review in Cases of Inaction

As noted above, the sole exception is prolonged, unexplained inaction by the Governor (or President) on a Bill.

Here, relying on Aeltemesh Rein v. Union of India (1988), where the Court directed the Union Government to decide whether to bring Section 30 of the Advocates Act into force after inordinate delay, the Court holds:

  • Even discretionary powers must be exercised in a “just, reasonable and fair way”.
  • Constitutional authorities cannot simply evade decision-making indefinitely.
  • Courts may therefore:
    • direct the relevant government to consider and decide the matter within a reasonable time; but
    • not dictate the outcome (e.g. “you must assent” or “must reserve”).

Applied to Articles 200/201, this becomes a narrow but important safety valve:

  • If a Bill has been languishing with the Governor/President for an unreasonable period, without any discernible steps, courts can mandate that some choice under Article 200/201 be made within a reasonable period.

The key limiting features are:

  • No fixed universal deadline — “reasonable time” will vary with circumstances;
  • No merits review of the eventual choice; and
  • Directions are addressed to the constitutional office/government, not to the person of the Governor/President (due to Article 361).

X. Article 361: Personal Immunity vs Institutional Accountability

The Court relies heavily on Rameshwar Prasad (VI) v. Union of India (2006), which examined Article 361 in the context of a challenge to the proclamation under Article 356:

  • Article 361(1) makes the President/Governor not answerable to any court for exercise of their powers.
  • This bars:
    • issuing notice directly to the President/Governor;
    • directing them to file affidavits; or
    • summoning them for cross-examination.
  • However, it does not prevent courts from examining:
    • the constitutional validity of the actions allegedly taken on their behalf (e.g. proclamations under Article 356); or
    • even allegations of mala fides, as such mala fides can be established via other evidence or affidavits by ministers/officials.

Transposed here, the Court holds:

  • Article 361’s personal immunity does not bar challenges to inaction under Article 200 (e.g. writs directing the State to ensure exercise of constitutional functions).
  • But it bars:
    • issuing coercive processes directly against the Governor; and
    • requiring the Governor to personally justify reasons for a particular choice.

Therefore, the narrow mandamus to act that the Court envisages does not infringe Article 361 because it is addressed to the constitutional office and the State Government, not to the individual personally.

XI. Complex Concepts Simplified

This judgment revolves around technical constitutional concepts. The following brief explanations may assist in understanding.

1. What is “Assent” to a Bill?

In India, a Bill passed by a Legislature does not become law until it receives assent:

  • At the Centre, the President’s assent is required under Article 111.
  • In a State, the Governor’s assent is required under Article 200.

Assent is thus the final formal step in the legislative process — it turns a Bill into an Act.

2. What is “Reservation” of a Bill?

“Reservation” means the Governor flags a Bill for Presidential scrutiny, instead of deciding himself. The Bill is sent to the President under:

  • Article 200 (for State Bills requiring or warranting Presidential oversight); or
  • Specific provisions (Art. 31A, 31C, 254(2), 288(2), 360, second proviso to Art. 200) that compel reservation in certain circumstances.

Once reserved, the President decides under Article 201 whether to assent, withhold, or return the Bill with a message.

3. “Withholding” vs “Returning” a Bill

  • Withholding assent: not granting assent. In the Court’s interpretation, this must be exercised by returning the Bill with a message (for non‑Money Bills). There is no unstructured veto.
  • Returning a Bill: sending the Bill back (with reasons or suggested amendments) for the Legislature to reconsider and possibly modify.

4. What is “Justiciability”?

“Justiciability” refers to whether a dispute or action is fit to be decided by courts. If something is non‑justiciable, courts:

  • either lack jurisdiction to review it; or
  • treat it as a political or internal question for other branches to resolve.

In this judgment, the substantive choices of the Governor/President under Articles 200/201 are treated as non‑justiciable, whereas their failure to act at all can trigger limited judicial review.

5. Advisory vs Adjudicatory Jurisdiction

  • Advisory jurisdiction (Article 143): The President asks the Supreme Court for its opinion on a question of law or fact. The Court’s response is not a binding decree between parties, but its legal reasoning binds other courts.
  • Adjudicatory jurisdiction: The Court decides concrete disputes between parties (writ petitions, appeals, suits), and issues binding judgments (“decrees”).

6. What is “Deemed Assent”?

A law sometimes provides that if a person does not act by a certain time, something is treated as done automatically. For example, under Article 109, if the Rajya Sabha does not return a Money Bill within 14 days, it is deemed to have been passed.

Deemed assent under Articles 200/201 would mean: if the Governor/President does not decide within a fixed time, the Bill is taken as assented to. The Court in this judgment rejects any such doctrine because:

  • the Constitution does not say so; and
  • judicially inventing it would usurp the executive’s role.

7. Separation of Powers: “Overlap vs Wresting Away”

The judgment relies on Bhim Singh v. Union of India to explain that:

  • Some overlap between branches is inevitable and even designed (e.g. judicial review, presidential ordinances);
  • What is impermissible is when one branch “wrests away” the core function of another (e.g. the Court effectively assuming the role of Governor in assenting to Bills).

Article 142 cannot be used to “wrest away” the constitutional function of gubernatorial or Presidential assent.

XII. Impact and Likely Future Implications

1. For State Governments

  • States can no longer rely on the State of Tamil Nadu precedent to:
    • claim that Bills have attained deemed assent after a fixed period; or
    • invoke strong judicial remedies to force assent or prevent reservation.
  • Where Governors sit on Bills without action, States’ remedy is to:
    • approach courts (High Courts/Supreme Court) for a limited mandamus directing the Governor’s office to take a decision within a reasonable time — but not to dictate the nature of the decision.
  • States must anticipate that Bills touching:
    • federal distributions (e.g. taxation repugnant to central law);
    • High Court powers; or
    • economic or security concerns of national implication;
    may validly be reserved for the President.

2. For Governors

  • Governors are reminded that they are not mere figureheads in the legislative process:
    • They have real discretion under Article 200, which they must exercise carefully.
    • They must approach decisions with their constitutional oath in mind, not as agents of the Union or instruments of partisan politics.
  • At the same time, Governors are warned that:
    • they cannot indefinitely withhold action on Bills without reasons;
    • prolonged inaction can invite judicial directives to act, even if courts cannot tell them how to act.

3. For the President and the Union

  • The President’s subjective satisfaction under Article 201, including whether or not to refer a reserved Bill to the Supreme Court under Article 143, is reaffirmed.
  • The President’s assent/withholding remains non‑justiciable; however, delay in dealing with reserved Bills could potentially invite similar limited mandamus.

4. For the Judiciary

  • This opinion is an important self‑limiting precedent on the scope of judicial creativity under Article 142:
    • It confirms that even the Supreme Court’s “complete justice” power must respect the basic structure (particularly separation of powers and federalism).
    • It signals a retreat from structural remedies like deemed assent that re‑allocate powers among constitutional actors.
  • At the same time, it retains a minimalist remedial role to:
    • ensure constitutional authorities do not paralyse governance through inaction.

5. Doctrinal Re-alignment vis-à-vis State of Tamil Nadu

Although the judgment does not expressly use the word “overrule”, a careful reading shows that it effectively displaces critical holdings of State of Tamil Nadu, namely:

  • Judicially fixed timelines for Governors and the President — declared erroneous.
  • Deemed assent via Article 142 — declared impermissible.
  • Broad justiciability of assent/reservation decisions — rejected in favour of non‑justiciability plus narrow review for inaction.
  • View that only second proviso to Article 200 involves discretion — held to be an incorrect reading of Samsher Singh and Nabam Rebia.

In practice, lower courts must now treat State of Tamil Nadu as limited or overborne by this Constitution Bench’s authoritative exposition.

XIII. Conclusion: Significance in the Broader Constitutional Landscape

This advisory opinion is a landmark in several respects.

  1. It articulates a nuanced, “swadeshi” vision of constitutionalism.
    The Court consciously distances itself from simplistic borrowing of Westminster (UK) or US presidential models, insisting that India’s constitutional practice has evolved its own balance:
    • a parliamentary executive;
    • a strong but not domineering Centre;
    • States with real legislative autonomy; and
    • Constitutional heads (President/Governors) with limited but meaningful functions in law-making.
  2. It redefines Article 200 as an instrument of dialogic federalism.
    By disallowing an unstructured veto and emphasising return with message and reservation for the President, the Court encourages a dialogue-based approach to contentious Bills. Checks and balances are seen not only as vetoes but as structured conversations between institutions.
  3. It powerfully reasserts separation of powers and judicial self‑restraint.
    Rejecting “deemed assent” and judicially crafted timelines, the Court reinforces the principle that even its most potent tools (Article 142, judicial review) cannot be used to re-write the Constitution’s basic allocation of functions.
  4. It clarifies and narrows the scope of judicial review over high constitutional functionaries.
    The line drawn is ethically and institutionally important:
    • Courts can require Governors/President to do their job (act);
    • Courts cannot do the job for them (substitute assent, reservation, or withholding).
  5. It restores coherence to precedent on Presidential/Gubernatorial assent.
    By reaffirming Kameshwar, Hoechst, Bharat Sevashram Sangh, Kaiser-i-Hind, and B.K. Pavitra, the Court re-establishes a consistent doctrinal line: assent is non‑justiciable; laws resulting from assented Bills are fully justiciable.

In sum, In Re: Assent, Withholding or Reservation of Bills is a major recalibration of the constitutional position on Articles 200 and 201. It restrains judicial overreach, restores discretion where the Constitution contemplates it, guards against paralysis by inaction, and deepens a dialogic, cooperative vision of Indian federalism. It will almost certainly shape:

  • the daily working relationship between State governments and Governors;
  • how the Union and President approach reserved Bills; and
  • how courts conceptualise their own limits in supervising high executive functions.

Placed alongside S.R. Bommai, Nabam Rebia, and the Government of NCT of Delhi cases, this opinion marks another key step in clarifying the architecture of Indian federalism and the role of constitutional headship within it.

Case Details

Year: 2025
Court: Supreme Court Of India

Advocates

BY COURTS MOTION

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