What does the SC’s advisory opinion imply? | Explained

The story so far:

The Supreme Court expressed its opinion regarding the Presidential reference made pursuant to Article 143. In his opinion, he largely rejected the two-judge Panel decision handed down in April 2025.

What was the presidential reference?

The present reference is the result of the two-judge Bench decision. State of Tamil Nadu vs Governor of Tamil Nadu In April 2025, it had stated a three-month timeline for Governors and the President to act on Bills passed by State legislatures. The Court held that the decisions of Governors and the President on such Bills are subject to judicial review. It had exercised its extraordinary power under Article 142 and given ‘deemed to be accepted’ to Bills passed by the Tamil Nadu assembly but not assented to by the Governor.

The present reference raised 14 questions for the court’s consideration, primarily relating to the interpretation of Articles 200 and 201. These questions concern the courts’ authority to set timelines where they are not specified in the Constitution. The Government had questioned whether the actions of Governors and the President could be made prosecutable at a stage before a bill became law. The reference also sought comment on the scope of powers available to the Supreme Court under Article 142.

What is the current opinion?

The five-judge panel of the Supreme Court gave its opinion on the questions asked. He stated that this reference is a ‘functional reference’ that strikes at the root of the day-to-day functioning of constitutional officers and the interaction between the State legislature, the Governor and the President. The key points of the opinion are summarized below.

First, when a bill passed by the State legislature is submitted for his assent, the Governor has three constitutional options under section 200: to assent or reserve the Bill for the President’s consideration, or to withdraw assent and return the Bill to the legislature with comments. Secondly, the Governor has the discretion to choose one of these three options and is not dependent on the assistance and advice of the Council of Ministers. Thirdly, it is not lawful for the Governor to discharge his duties under Article 200, but in cases of obvious circumstances such as prolonged and unexplained inactivity, the court may grant limited power to the Governor to discharge his duties in relation to the submitted Bill. Fourth, in the absence of constitutionally established time limits, the court cannot judicially determine timelines for actions to be taken by the President or Governor. Fifth, the decisions of the President and the Governor under Articles 201 and 200, respectively, are not valid before a bill becomes law. Finally, the powers of the Supreme Court under Article 142 cannot replace the powers granted to the President/Governor under the Constitution. For this reason, the concept of ‘presumed consent’ is not included in the Bills.

What are the problems?

The Sarkaria Commission (1987) was of the opinion that what could be implied as the discretionary power of the Governor is that even in rare cases of unconstitutionality, Bills are merely reserved for consideration by the President. Supreme Court in various cases Shamsher Singh (1974) and Nabam Rebia (2016) stated that Governors should act in line with the assistance and advice of the Council of Ministers. However, in the current opinion, the court has interpreted these cases to conclude that actions under Section 200 with respect to a bill submitted for approval fall within the Governor’s discretion. This has the potential to derail the legislative intent of popularly elected state governments.

Regarding time limits, the Punchhi Commission (2010) had recommended that the Governor should take a decision within a period of six months on the Bill submitted for his approval. The court is in its own decision K M Singh In the case (2020), a period of three months was envisaged for the Speakers of Parliament to decide on disqualification petitions, although no time limit is provided for in the Constitution. District court decision State of Tamil Nadu Placing term limits on governors and the President was a purposeful and progressive interpretation of the Constitution. Current opinion has rejected this position.

What could be the way forward?

The underlying disease plaguing our federal structure was the politicization of the governor’s office. The Governor acts as the Centre’s appointee to maintain the unity and integrity of the nation. But federalism is also a fundamental feature of our Constitution. This view should not become an excuse for the Governor’s office to obstruct the policies of America’s popularly elected legislatures. Governors must demonstrate responsible urgency in signing off on bills passed by state legislatures.

Rangarajan. R is a former IAS officer and author of ‘Simplified Courseware on Politics’. He is currently undergoing training at ‘IAS Academy for Civil Servants’. The views expressed are personal.