President or Governor, People Have Right to Governance!

Though people are the real sovereigns, they need governance, and hence, the common man has the right to governance. To govern is a duty, and not just the right to governance. Hence, every abuse of constitutional powers will result in bad administration.

Clearing pending court cases, secretariat files, and administration rules is an essential need of the people. The reference here is to a case related to the incumbent National Democratic Alliance (NDA) government’s Ministry of Home Affairs. The Home Ministry submitted an affidavit to the Supreme Court suggesting that the President should act within a maximum time frame of three months on Bills referred by Governors.

This is neither a new idea nor breaking news. The Central government, through its Home Ministry, also proposed that Governors must decide within three months whether to assent to or reject Bills. But who asked for this?

• It was the Home Ministry that requested the Supreme Court to impose the same three-month limit on the President.
• Then why raise 14 questions? Why constitute a special bench of the Supreme Court to render advice?

Should Governors continue to keep Bills pending for years in several states, including Tamil Nadu? Is this not a constitutional challenge? Are we deliberately creating a situation where state governments are rendered powerless to act? Should the people of Tamil Nadu — and other states — keep waiting endlessly for governance through Bills? Is this good governance, bad governance, or non-governance?

Hence, the real question is: will the Supreme Court’s interpretation in response to this Presidential Reference stand, or if the Central government disagrees later, will this be a futile exercise?

Last month, the Supreme Court ruled that the Tamil Nadu Governor’s decision to withhold assent for 10 Bills was “unconstitutional and erroneous.” Using Article 142, it held that the Bills should be treated as assented to by the President.

On May 16, 2025, the Presidential Reference asked the Supreme Court to answer whether a time limit can be imposed through a judicial order on the President. Article 201 of the Constitution does not prescribe any such time frame. However, the Supreme Court’s judgment on April 8, 2024, made it very clear: “We are merely adopting the guidelines issued by the Ministry of Home Affairs (MHA) through two consecutive Office Memorandums (OMs) in 2016, which fixed a three-month timeline.” The government itself wanted this time limit back in 2016. If that’s the case, why is a fresh Supreme Court hearing on the Presidential Reference even necessary?

What Did the President Ask?

The President of India is the supreme constitutional authority for governance of the country. The President is elected through an elaborate process involving MPs and MLAs across the nation — no other election is so comprehensive. This is why the President holds significant powers. When the President refers a matter to the Supreme Court, it is the constitutional duty of the Court to advise.

The Matter is Federal in Nature

This matter pertains to the federal structure of the Indian Constitution. Article 1 of the Constitution clearly says: “India, that is Bharat, shall be a Union of States.” It further defines the states and territories as listed in the First Schedule. Just like the United States of America, India, too, can be considered a "Union of States". This implies that Governors have substantial authority in state administration.

How Much Power do Governors Have?

Governors, appointed by the President on the advice of the Prime Minister and Home Minister, often act under the influence of the Union government. They are supposed to serve as the highest authority within a state. They are expected to act promptly and responsibly. They must not misuse their powers to obstruct governance.

To Avoid Red Tape

Naturally, such deep constitutional questions demand careful legal examination. The set of questions was most likely framed by constitutional experts. Hence, a Constitution Bench of the Supreme Court is required to provide clarity. Articles 200 and 201 do not stipulate any time frame — which is not necessarily a flaw. But administration requires timely decisions to avoid red tape. Governors don’t have bigger jobs than this — even if their powers are largely ceremonial, they must act without unnecessary delay.

The recent Supreme Court judgment applies to all Governors. Through this reference, the President is indicating that similar limitations may apply to her discretionary powers as well.

Why These Delays in Assent?

Not all Governors are in conflict with Chief Ministers or state cabinets. Such friction is mostly seen in states where the ruling party is different from the party in power at the Centre. There are credible allegations that such delays are politically motivated. Due to this, state governments are often unable to implement crucial laws, as a result of which the governance process halts.

That is why, under Article 143(1), the President approached the Supreme Court seeking advice, especially in light of growing conflicts between Governors and Chief Ministers across the country.

Recently, in the State of Tamil Nadu vs. Governor of Tamil Nadu (2025) case, the Supreme Court criticised the use of the term “pocket veto,” wherein Governors indefinitely withhold assent without acting on Bills.

The President has asked five critical questions:

1. Are the discretionary powers exercised by Governors under Article 200 subject to judicial review?
2. Is the protection provided to Governors/President under Article 361 an absolute bar to judicial scrutiny?
3. In the absence of a constitutional time frame, what is the appropriate manner in which the Governor should decide on a Bill?
4. Are decisions taken by the President under Article 201 subject to judicial review?
5. Can a time limit be imposed on the President’s decision under Article 201? Can the courts prescribe such a limit?

Other important questions include:

1. How many options does a Governor have under Article 200 regarding a Bill?
2. Should the Governor act solely on the advice of the State Cabinet?
3. Can the President, in such situations, seek advice from the Supreme Court?
4. Do the courts have the power to conduct judicial review under Articles 200 and 201?
5. Under Article 142, can courts issue directives to remove a Governor or President?
6. Is a law passed by the state legislature valid even without the Governor’s assent?
7. Under Article 145(3), must a Constitution Bench of at least five judges be constituted to interpret these issues?
8. Does Article 142 apply only to procedural law, or can it override constitutional provisions?
9. Can the Supreme Court resolve disputes between the Centre and states without an Original Suit under Article 131?

Justice J B Pardiwala made it clear that the Governor has only three options when a Bill is presented. Once a Bill is returned to the legislature and passed again, the Governor cannot send it to the President. Only if the Bill is altered, as per the Governor’s suggestions, can it be sent to the President; otherwise, not.

Is SC’s Advice Not Binding?

If the Governor or President fails to act, citizens or governments can file a writ of mandamus in court. In a democracy, governance must happen through action — not inaction. While this judgment indicates the path, a Constitution Bench may still be needed for final clarity. But it is important to note: under Article 143, the advice given by the Supreme Court is not binding.

Meanwhile, ministries and state departments have often come to a standstill due to such withheld Bills. This ultimately violates the people’s right to governance.

This writer is a Former Central Information Commissioner and Professor of Law, Hyderabad. The views are personal.