Courts Getting Too Powerful? Let’s Decode Article 143!

The purpose of writing this piece of article is to analyze the legal provisions as enshrined under Article 143 of the constitution of India which has become a subject of discussion in view of recent legal development of referring 14 questions by the President of India to the Hon’ble Supreme Court of India questioning the power of the Hon’ble Supreme Court of fixing the time limit for the Governors and President for granting or withholding his/her assents to the Bills passed the State Legislatures and the Parliament.

Moot question herein is whether fixing such time limit for Governors and President regarding granting or withholding assents to bills passed by state legislatures and the parliament amounts to encroachment upon the powers of the judiciary over the executive branches of the government especially when the Constitution of India has not fixed such time limits.       

 In a recent development, Smt. Droupadi Murmu, President of India raised concerns over the Supreme Court’s directive in “State of T.N. v. Governor of T.N., 2025 SCC On Line SC 770,” regarding the setting of timelines for the assent of Bills under Articles 200 and 201 of the Constitution of India.The Supreme Court, in its judgment,sought to impose deadlines for the Governor and the President to act on the Bills passed by the State Legislature and Parliament.

The Courtʼs proactive stance has sparked debates on judicial overreach.Vice President Jagdeep Dhankhar criticized the judiciary for setting deadlines for the President, arguing that it encroaches upon the executive’s domain. This discourse reflects the ongoing tension in delineating the boundaries of each governmental branch.

Its worth noticing that while referring the said 14 questions by the President of India to the Hon’ble Supreme Court of India for its opinion, said questions does not talk at all about the recent judgment passed by the Hon’ble Supreme Court in the case titled as “State of T.N. v. Governor of T.N., 2025 SCC On Line SC 770” but truth is given the timing of such reference and contents of 14 questions referred by the President of India makes its apparent that passing of above-mentioned judgment is the root cause of such reference to the Hon’ble Supreme Court of India regarding the questions which have been clarified by the Hon’ble Supreme Court in the judgment of case titled as “State of T.N. v. Governor of T.N”., 2025 SCC On Line SC 770”itself.

Legal background behind filing the case of “State of T.N. v. Governor of T.N.,

The Legislature for the State of Tamil Nadu, between 13.01.2020 and 28.04.2023, enacted and forwarded 12 Bills to the Governor for grant of assent as per Article 200 of the Constitution. Even though the present Governor took charge of the office with effect from 18.11.2021, yet he did not take the necessary action on any of the said Bills forwarded to his office till October2023.

The State of Tamil Nadu, being aggrieved by the action of the Governor on few issues of prime public importance, has invoked the jurisdiction of this Court under Article 32 of the Constitution seeking appropriate reliefs as prayed for in the writ petition.The petitioner is aggrieved by the action, or rather inaction, on part of the Governor of Tamil Nadu in discharge of the following functions:

1.         Withholding of assent to and reserving for consideration of the President, by the Governor of 10 Bills enacted by the Legislature for the State of Tamil Nadu.

2.         Inaction on files submitted to the Governor for according sanction to prosecute public servants and investigate various crimes of corruption involving moral turpitude.

3.         Pendency of a number of files submitted to the Governor for premature release of prisoners.

4.         Pendency of proposals submitted to the Governor for appointment of members to the Tamil Nadu Public Service Commission under Article 316 of the Constitution.

Constitutional provisions related to presidential references

Article 143: Power of President to consult Supreme Court.

(1)If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

(2)The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

200. Assent to Bills

When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the. House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

201. Bills reserved for consideration

When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.

What are the significances of presidential references?

• Constitutional Clarity - Helps the President seek the Supreme Court’s opinion on complex legal or constitutional questions.
• Prevents Legal Uncertainty - Used to avoid constitutional crises or confusion in interpreting laws before implementation.
• Strengthens Rule of Law -Shows that the executive values and respects the judiciary’s role in governance.
• Bridges Executive and Judiciary - Facilitates coordination between the Executive and the Judiciary within a democratic framework.
• Guides Government Action -Helps the government take constitutionally sound decisions, especially on sensitive national issues.
• Protects Constitutional Morality - Reinforces the President’s role as a constitutional head, upholding neutrality and legality.

Questions Referred By President of India:

In exercise of the powers conferred under Article 143(1) of the Constitution of India, the President, however, questioned whether such a timeline could be prescribed for actions that fall within the discretionary powers granted by the Constitution. Articles 200 and 201 give the Governor and President the authority to either grant assent, withhold it, or seek further consideration of the Bill. The controversy has sparked a debate about the limits of judicial interference in the executive’s powers and the balance of power between the Executive and the Judiciary in matters of constitutional procedure.

The President of India referred a series of crucial constitutional questions to the Supreme Court of India for its interpretation.The questions primarily concern the discretionary powers of the Governor and the President in relation to the assent of Bills under Articles 200 and 201 of the Constitution.

Since most of the questions referred by the president of India to Supreme Court for its legal opinion has already been answered by the Supreme Court vide its recent judgment passed in the case of “State of T.N. v. Governor of T.N”, it would be relevant to reproduce hereinbelow the contents of said judgment as the answers given by the Supreme Court followed by the questions referred by the President for the ready reference:   

1.            What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?

a)     The first proviso prescribes a mechanism whereby the Governor may return a bill, which is not a Money Bill, back to the State legislature requesting them to reconsider the bill or certain provisions thereof or consider the possibility of making certain amendments to it. Once a bill is so returned by the Governor, the State legislature is required to take note of the suggestions made by the Governor and reconsider the bill accordingly. If the bill, after such reconsideration by the State Legislature is again passed and presented to the Governor, then in such circumstances as per the first proviso, the Governor would then be prohibited from withholding his assent to the bill.

b)     The second proviso provides for a specific situation wherein the Governor is mandated to reserve a bill for the consideration of the President if, in his opinion, the bill upon becoming law, would so derogate from the powers of the High Court as to endanger the position which the High Court has been designed to fill by the Constitution.

2.            Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?

The Governor does not possess any discretion in the exercise of his functions under Article 200 and has to mandatorily abide by the advice tendered to him by the Council of Ministers. The only exceptions to this general rule are as follows:

a.          Where the bill is of a description as provided under the second proviso to Article 200;

b.          Where the bill is of a nature covered by Articles 31A, 31C, 254(2), 288(2), 360(4)(a)(ii) etc. wherein assent of the President is a condition precedent before the bill can take effect as law or is necessary for the purpose of securing immunity against the operation of some constitutional provision;

c.           Where the bill is of a nature that, if allowed to take effect, then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril as described in M.P. Special Police (supra).

3.            Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?

The observations made by this Court in Hoechst (supra) that the assent of the President is non-justiciable, cannot be stretched to mean that as a general rule, the exercise of powers by the Governor under Article 200 in his discretion would also be immune from judicial review. While grant of assent by the Governor or the President, being acts which are generally taken upon the aid and advice of the Council of Ministers, may not be justiciable, the withholding of assent or reservation of bills for the consideration of the President by the Governor in exercise of his discretion which is subject to the limits defined by the Constitution, would be justiciable on the touchstone of judicially determinable standards.

4.            Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

     It could be argued that the decision taken by the Governor under Article 200 would be shielded from the scrutiny of the courts by virtue of the immunity accorded under Article 361of the Constitution. However, in this regard, we may only refer to the observations made by this Court in Rameshwar Prasad (supra) which leaves no doubt that the immunity enshrined in Article 361 of the Constitution does not preclude or prohibit the courts in any manner from looking into the actions of the Governor which by necessary implication would include his actions under Article 200 as well. The relevant observations are as follows:

“173.A plain reading of the aforesaid article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor in as much as they are not answerable to any court for the exercise and performance of their powers and duties. Most of the actions are taken on the aid and advice of the Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by the Union of India or the State, as the case may be. Even in cases where personal malafides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made [...]”

5.            In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?

The settled position of law is that where no time-limit for the exercise of a power is prescribed, the same must be exercised in a reasonable time period. Guided by the decisions of this Court in A.G. Perarivalan (supra) and Keisham (supra), we find that it is no more res-Integra that the courts are well-empowered to prescribe a time-limit for the discharge of any function or exercise of any power which, by its very nature, demands expediency.

6.            Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable? In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?

    The exercise of power by the Governor under Article 200 and the exercise of power by the President under Article 201 as follows:

a.             Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. Such a challenge can broadly be made on the following grounds:

(i)        Where the reservation is on the ground that the bill is of a description falling under the Second Proviso to Article 200 of the Constitution, it may be assailed on the ground that the bill or any provision thereof does not so derogate from the powers of the High Court so as to endanger the position which that court is designed by the Constitution to fill. The Governor while reserving a bill on this count shall be expected to provide clear reasons and also point to the specific provision(s) of the bill which, in his opinion, attract the Second Proviso. This question being purely of a legal nature would be completely justiciable and the competent court would be, after a proper adjudication, fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action. If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.

(ii)      Where the reservation is on account of the bill attracting any provision of the Constitution wherein the assent of the President is a condition precedent for the proper enactment and enforceability of such a bill as a law (such as under Article 364A2) or for the purpose of securing any immunity (such as under Article 31A) or overcoming any repugnancy that may exist qua a Central Legislation (under Article 254(2)), then the Governor is expected to make a specific and clear reference to the President properly indicating the reasons for such reservation and inviting his attention as described in Kaiser-I-Hind (supra). Such a reservation can be assailed by the State Government, if the reference made by the Governor either fails to indicate the reasons for such reservation as discussed above or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. Then such a reservation would be liable to be set aside. This question being purely of a legal nature would be completely justiciable and the competent court would be after a proper adjudication fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be fit case for issuance of a writ in the nature of mandamus to the Governor for appropriate action.If however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.

(iii)    Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M.P. Special Police (supra) and Nabam Rebia (supra) then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pin pointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law. The Governor while making such a reference should also indicate his subjective satisfaction as to why the aforesaid consequences that may ensue cannot be possibly curtailed or contained by taking recourse to the constitutional courts of the country. It shall be open to the State Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. This being a question completely capable of being determined by the constitutional courts, would be fully justiciable.

(iv)     Reservation of a bill on grounds other than the ones mentioned above, such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set-aside forth with on that ground alone.This will also encompass reservation of a bill by the Governor after having already exercised the option of withholding of assent in terms of Article 200 except in such exceptional circumstance as mentioned in paragraph 204 of this judgment.

(v)      Where the Governor exhibits inaction in making a decision when a bill is presented to him for assent under Article 200 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 250 of this judgment then it shall be open to the State Government to seek a writ of mandamus from a competent court against the Governor directing expeditious decision on the concerned bill as is the mandate of the Constitution, however, it is clarified that the Governor may successfully resist such a challenge on providing sufficient explanation for the delay caused.

b.                       Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court. Such a challenge can broadly be made on the following grounds:

(i)                   Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner. Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint.

(ii)                 Where a State bill has been reserved by the Governor, in his discretion, for the consideration of the President on the ground that the bill appears to be patently unconstitutional for placing the principles of representative democracy in peril, the withholding of assent by the President would, in ordinary circumstances, involve purely legal and constitutional questions and therefore be justiciable without any impediments imposed by the doctrine of political thicket. In such cases, it would be prudent for the President to obtain the advisory opinion of this Court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides.

(iii)               Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court.

7.            In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?

a.       Although we are cognizant of the fact that in discharge of his powers under Article 201, the President is expected to “consider” the bill and such “consideration” may be difficult to be bound by strict timelines, yet it cannot be a ground to justify inaction on part of the President.

b.       We have discussed in detail in the preceding paragraphs that where no time for the exercise of a power has been stipulated, such power must be exercised in a reasonable time, so as to not render the subject matter nugatory or dilute the purpose sought to be achieved. The delay on part of the President in deciding a reference under Article 201, without any justification or necessity, would fall foul of the basic constitutional principle that the exercise of a power must not be arbitrary and capricious. The implications of inaction being of a serious nature and detrimental to the federal fabric of the Constitution, there should be no scope for unnecessary delay on part of the President under Article 201 as well.

c.       It becomes clear upon the perusal of the guidelines that in recognition of the urgent and important nature of Article 201, the Central Government has framed clear guidelines as regards the time limits and the manner in which references under Article 201 are expected to be disposed of. The guidelines also lay down that any delay caused in the seeking of clarifications and making of suggestions by any Ministry would have to be explained by furnishing reasons, in the absence of which, it would be assumed that they have no objections. It would be apposite for us to observe here that the idea of imposing timelines on the various stakeholders would not be antithetical or alien to the procedure that surrounds the discharge of constitutional functions under Article 201. The existence of the aforesaid two Office Memorandums further substantiates such an interpretation. After all, no memorandum which is contrary to the substance and spirit of Article 201 can be allowed to command any procedure between the Union and the States.The factum of its existence and acceptance reveals that the requirement of expeditious or even a strict time-bound action would be consistent with the aim and object of Article 201.

8.            Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force?

We are of the considered view that although the option to refer a bill to this Court under Article 143 may not be mandatory, yet the President, as a measure of prudence, ought to seek an opinion under the said provision in respect of bills that have been reserved for the consideration of the President on grounds of perceived unconstitutionality. This is all the more necessary as there is no mechanism at the State level for the Governor to refer bills to the constitutional courts for their advice or opinion thereupon. Under the scheme of the Constitution as we see it, there is only one possible way for the Governor to ascertain the palpable constitutionality of a bill, which is by way of reserving it for the consideration of the President who in turn is then expected to invoke Article 143.The Constitution is not a maze, but a labyrinth. Although both may semantically appear to be one and the same, yet there is a very fine but discernible difference between the two. The difference lies in the fact that in a maze one may lose their way within the multiple overlapping paths, with the possibility of each of them leading to a dead-end, however in a labyrinth one eventually finds the way and in the process also come out more enlightened. Similarly, any questions emanating from the Constitution or pertaining thereto such as the constitutional vires of a law must be uncovered through the foresightedness of our Constitution. Wherever, a bill is reserved by the Governor for the President on the ground of patent unconstitutionality of the nature where in the exercise of discretion by the Governor is permissible under Article 163(1), the Constitution expects the President to be the soothsayer, easing the sails for the Governor.

9.            Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?

The view taken In Re: Special Courts (supra) was that consultative jurisdiction under Article 143 may avoid any possible challenges to the vires of a bill if it becomes an Act. On basis of the dictum in the said reference, we are of the considered view that constitutional courts are not precluded from making suggestions or opining about the constitutional validity of a bill before the same becomes a law. This is because preventing a patently unconstitutional bill from being enacted saves not only public resources but also respects the wisdom of the legislature by providing the constitutional functionaries associated with the process of passage of a legislation, to review the bill and take appropriate actions. However, the approach of prevention before cure cannot be stretched to such extent, that the very process of reservation becomes a resort for thwarting the very legislative powers of the States. The President’s recourse to Article 143 also palliates any apprehensions of bias or mala fides in the Central government’s approach to bills reserved under Article 200.

10.        Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?

Constitutional authorities are creatures of the Constitution and are bound by the limitations prescribed by it. No authority, in exercise of its powers, or to put it precisely, in discharge of its duties, must attempt to breach the constitutional firewall. The office of the Governor is no exception to this supreme command. Whenever there is an attempt by any authority to move beyond the bounds of the Constitution, this Court has been entrusted with the responsibility to act as the Sentinel on the qui vive and bring back the authority within the constitutionally permissible limits by exercising judicial review. We are not exercising our power under Article 142 in a casual manner, or without giving a thought to it. On the contrary, it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor-first in exhibiting prolonged inaction over the bills; secondly in declaring a simpliciter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round - were all in clear violation of the procedure envisaged under the Constitution, that we have decided to declare the deeming of assent to the ten bills, considering it to be our constitutionally bounden duty. In our view, that is the only way to ensure that complete justice is done with the parties without any delay, and without possibility of any further delay due to any inaction on the part of the Governor, or lack of deference on his part to this judgment.

11.        Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?

For all the foregoing reasons we have reached the following conclusion:

a.      The reservation of the ten Bills which are the subject-matter of challenge in the present petition by the Governor for the consideration of the President on 28.11.2023 after their due reconsideration by the State legislature in terms of the first proviso to Article 200 being in contravention of the procedure prescribed under Article 200 as explained by us here in above is declared t be erroneous in law, non-est and thus, is hereby set-aside.

b.      As a result of the above, any consequential steps that might have been taken by the President on the se ten Bills is equally non-est and is hereby set-aside.

c.      Having regard to the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent and in view of the scant respect shown by the Governor to the decision of this Court in State of Punjab (supra) and other extraneous considerations that appear to be writ large in the discharge of his functions, we are left with no other option but to exercise our inherent powers under Article 142 of the Constitution for the purpose of declaring the seten Bills as deemed to have been assented on the date when they were presented to the Governor after being reconsidered by the State legislature i.e., on 18.11.2023.

12.        In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?

Since this question was not raised before the Hon’ble Supreme Court during argument, the said judgment does not answer this question. However ,the precedents are already settled on this issue by larger benches in “Shamsher Singh vs State of Punjab (1974)”, MP Special Police Establishment vs State of MP (2004)” thereby describing and declaring the President & Governor as only figureheads in the constitutional scheme having limited areas of discretion.

13.        Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?

Since this question was not raised before the Hon’ble Supreme Court during argument,the said judgment is silent on this issue.However, it can be inferred that this question ignores the Court’s clear ruling that its use of Article 142 to deem Governor’s assent is not applicable in every case of Governor’s inaction.The Judgement implied that bills would not be automatically deemed to be assented if the Governor fails to adhere to the prescribed timelines laid down in the Judgement. Instead, the inaction on the bills would be open to judicial review where the Governor could justify the delay.

        The prescription of a time-limit by this Court into Article 200 of the Constitution does not fundamentally change the procedure which has been envisaged. While the reading in of a time-limit under Article 200 would have meant that there would be deemed assent upon failure of the Governor to comply with the said timeline, the prescription of a reasonable time period does not introduce any such mechanism or deeming fiction in Article 200.

         What emerges from the above is that there is fine but pertinent distinction between the time-limits that are expressly prescribed and those that are judicially evolved.In the former the consequence of deemed assent emanates from the provision itself whereas in the latter there could be no such consequence except to the extent that the courts judicially reviewing the action or inaction can direct a decision to be taken within a time-bound manner, or in exceptional cases like the one at hand, deem the assent to have been granted under Article 142 of the Constitution.

14.        Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

It can be implicitly inferred from the contents of said judgment that where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action.Thus, State Government has rightly invoked Article 32 in this case.

Implications of the recent judgment of Supreme Court on general public:

      The State Legislative Assembly chosen and representatives of general public of the state is duty bound to keep upto the interest of people who trusted & got them elected. The State Legislature has the power to make laws based on the matters present in the state list and concurrent list.The State Legislature shall also make money bill and ordinary bill.State legislature has the duty to legislate the appropriate laws that are needed in a state for the free flow of democracy and for the development of the state. 

Is Supreme Court trying to overreach its jurisdiction by encroachment?

     The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities. The executive is vested with the power to make policy decisions and implement laws.  The legislature is empowered to issue enactments. The judiciary is responsible for adjudicating disputes.The doctrine is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in its text.  Thus, no law may be passed and no amendment may be made to the Constitution deviating from the doctrine.  Different agencies impose checks and balances upon each other but may not transgress upon each other’s functions.  Thus, the judiciary exercises judicial review over executive and legislative action, and the legislature reviews the functioning of the executive. There have been some cases where the courts have issued laws and policy related orders through their judgements.  These include the

i.             Vishakha case where guidelines on sexual harassment were issued by the Supreme Court,

ii.           The order of the Court directing the Centre to distribute food grains (2010) and

iii.         The appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks.

iv.         In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgement warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”.

v.           Justice Katju in 2007 noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.

With a view to see that judicial activism does not become judicial adventurism the courts must act with caution and proper restraint.It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties. The judiciary has also acted in several instances in the grey areas separating its role from that of the executive and the legislature.  The doctrine of separation of powers is not codified in the Indian constitution.  Indeed, it may be difficult to draw a strict line demarcating the separation. However, it may be necessary for each pillar of the State to evolve a healthy convention that respects the domain of the others.  

Personal Opinion

The discretion conferred under Article 143/Advisory jurisdiction does not have any binding effect and the opinion seeker i.e., President is not bound to accept the opinion sought from the Court, however having influential value.

However, the Supreme Court’s directive in “State of T.N. v. Governor of T.N.”, regarding the setting of timelines for the assent of Bills under Articles 200 and 201 of the Constitution of India were not issued in pursuance of Advisory opinion under Article 143, where it was non-binding but were issued when an aggrieved party i.e. State of Tamil Nadu accessed the gates of court for adjudicating the dispute, for the end of justice in the interest of Public.

Thus,the mandate of Supreme Court passed through the judgment passed in the case of “State of T.N. v. Governor of T.N.” isbinding on the governors or the president unless said judgment is set aside by the higher bench of the Supreme Court.

Its clear that the Hon’ble Supreme Court has not overreached its jurisdiction while passing the judgment of “State of T.N. v. Governor of T.N.” as by passing said judgment the Supreme Court has not acted against constitutional scheme but has only interpreted the constitutional provisions, which is its one of the prime duties, while fixing the deadlines regarding assents on the bills. 

On practical analysis it would become apparent that by way of delaying the assents to the bills specially passed by the State Legislature, Central Government acting through the President may try to dominate the state government especially when governments at the two levels are not of the same political party.

Mandate of the judgment passed in the case of “State of T.N. v. Governor of T.N.” is very much essential to maintain the federal fabric of the state especially when practically Governors or the President ,being the figureheads, often acts on the directions of the council of ministers of the  Central Government.

The author of this article, Punit Vinay, is an Advocate-On-Record, Supreme Court, practicing mainly before the Apex Court and Delhi High Court. He has done his specialization in constitutional law and has expertise in writ related litigations. He is based in Delhi and loves writing on legal issues.