By P. Sreekumaran
THIRUVANANTHAPURAM: The Supreme Court verdict that it cannot set a time limit for the President and Governors to grant or deny assent to the bills passed by the State legislatures has left the urgent Constitutional question of whether the laws passed by the State Governments can be kept in limbo for a long time unresolved.
The apex court’s decision has come as a big disappointment for State Governments, especially in non-BJP-ruled states.
The verdict of the five-member bench has set aside the earlier judgment by a two-member bench that neither the President nor the Governors can indefinitely delay clearing the bills passed by s State Governments. In fact, that bench had a set a three-month deadline for clearing the bills.
By setting aside that judgment which said that prolonged delays by Governors in deciding on bills passed by the Assemblies would give the provincial government the power to deem the bills as accepted, the apex court has inadvertently opened the door for avoidable protracted litigation.
The Division Bench had correctly set deadlines for Governors to decide on bills, and consequently, upheld the federal rights of the States by allowing them to consider any postponement without a valid reason as “deemed assent”. Many State Governments have found the Constitutional Bench’s decision wanting and severely short of resolving the conflict.
The President had sought from the Supreme Court answers for 14 questions. The main question was : Can the President and the governors indefinitely delay giving assent to bills passed by State Assemblies? The two-member bench had clearly ruled that they cannot, and went on to set a three-month deadline for clearing the bills.
The five-judge Bench, however said the judgment of the Division Bench was against the Constitution. “An usurpation of the gubernatorial function of the Governor. and similarly of the President’s functions, is antithetical not only to the spirit of the Constitution, but also specifically, the doctrine of separation of powers – which is part of the basic structure of the Constitution,” a bench of Chief Justice of India, B. R. Gavai, Chief Justice-designate Surya Kant, and judges Vikram Nath, P. S. Narasimha, and Justices A. S. Chandurkar had underlined in their judgment.
The Bench also ruled that the President and the Governors cannot resort to “prolonged and evasive action”, by sitting endlessly on State bills awaiting their approval.
“It would be against the principle of federalism and a derogation of the powers of the State legislatures to permit the Governor to withhold a bill without following the dialogic process…,” the Reference Bench advised.
The Bench propounded that the SC cannot judicially review the merits of the decision taken by the Governor under Article 200. “However, in glaring circumstances of inaction that is prolonged, unexplained and indefinite, the court can issue a limited mandamus for the Governor to discharge his function within a reasonable time periods,” it said.
It may be mentioned that the restricted review of the Governor’s inaction would not entail subjecting him personally to judicial proceedings. The Governor enjoys absolute personal immunity from court proceedings under Article 361 of the Constitution.
Imposing timelines on the President and the Governors to deal with all the bills pending with them for assent through judicial orders would be akin to a “one-size-fits-all” approach, especially in the absence of any constitutionally prescribed schedule or manner of exercise of powers by Governors or the President under Articles 200 and 201.
In direct contradiction of the two-member bench’s judgment, the Reference Bench said that the President need not consult the Supreme Court on every state bill referred to her by Governors for consideration. It would be left to the discretion of the President to take the advice of the Supreme Court under article 143.
The apex court also countered the objections raised by states ruled by non-BJP parties that the 2025 presidential Reference was an “appeal in disguise” against the court’s own binding verdict in the Tamil Nadu Governor case by observing that an advisory opinion could go so far as to “overrule, if necessary” a judgment.
This divergence may open the path for the Government to take the Presidential Reference route against an uncomfortable apex court judgment in future, rather than opting to file review or curative petitions.
Tamil Nadu had argued that it was impermissible to overrule an earlier precedent(April 8 judgment of the two-member bench) of the Supreme Court while exercising advisory jurisdiction under article 143.
Countering this objection, the Reference Bench pointed to a majority opinion delivered by Justice Y. V. Chandrachud(retired) for a seven-judge Bench in a 1978 Presidential Reference in which he observed that “our opinion may even go so far as to overrule, if necessary”.
Article 141 of the Constitution mandates that the “law declared by the Supreme Court shall be binding on all within the territory of India”.
Meanwhile, legal experts and leaders of some political parties have voiced mixed views on the Reference Bench’s verdict. Senior advocates say the ruling effectively rolls back the “rigid timelines’ of the three months for the Constitutional functionaries imposed in April by a two-judge bench of the apex court.
Senior advocate Ashwani Dubey opined that the “deemed assent” granted by the apex court itself on the 10 Tamil Nadu Bills via Article 142 powers is likely void or significantly affected by the Reference Bench’s ruling that “deemed assent” is “impermissible”.
CPI(M) general secretary M. A. Baby said the SC’s response to the Presidential reference on timelines to grant assent to bills was “deplorable and shocking”.
West Bengal Assembly Speaker Biman Banerjee (Trinamool Congress) feels that a fixed timeline should be laid down for Governors to clear bills. (IPA Service)
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