SC CLIPS GUV’S WINGS, BUT IS BALANCE OF POWER NOW IN FREEFALL?

SC CLIPS GUV’S WINGS, BUT IS BALANCE OF POWER NOW IN FREEFALL? 

Curbing Gubernatorial Discretion On Re-Passed Bills Risks Weakening Constitutional Checks And Blocking Presidential Input 

Srimathi Venkatachari 22.04.2025

The Supreme Court’s recent judgment in ‘state of Tamil Nadu vs governor of Tamil Nadu’ is of great significance in India’s constitutional history. It has been widely welcomed for reining in gubernatorial inaction and affirming democratic norms. Tamil Nadu challenged the governor’s prolonged inaction over multiple bills, executive appointments and corruption sanction requests, alleging a breakdown in constitutional machinery. The ruling restores the balance of power in India’s federal structure by reinforcing constitutional accountability, parliamentary democracy and the limited role of governors. The office of the governor has frequently been the focus of legal and political disputes. 

While the Constitution envisions the governor as a nominal head of state, the judgment clarified that the role is not to exercise political judgment, but to function strictly within the constitutional limits set by Articles 200 and 201, guided by the aid and advice of the council of ministers. Article 200 provides the governor with three options upon receiving a Bill passed by the state legislature: to grant assent, to withhold assent (and return it with a message), or to reserve it for Presidential consideration. However, the court held that the power to withhold assent is not absolute, and once a bill is re-passed by the legislature under the first proviso to Article 200, the governor must give assent. 

The court rejected the governor’s act of reserving the re-passed bills for the President — ruling that such a move contravenes the constitutional text and the established interpretation of Article  The court reaffirmed that no constitutional authority is exempt from judicial review. Relying on precedents such as ‘S R Bommai vs Union of India’ and ‘Nabam Rebia vs Deputy Speaker’, the Court confirmed that any exercise of constitutional power — particularly if mala fide or arbitrary — can be subject to scrutiny by constitutional courts. Inaction, unexplained delay and refusal to act on executive advice were held to be constitutionally suspect. Placing reliance on the concept of constitutional morality and asserting that gubernatorial delay undermines democratic governance and disturbs federal balance, the Supreme Court held that a reasonable time frame of 30-60 days should govern gubernatorial assent, even though the Constitution is silent on a fixed period. Examining Article 201, the court held that even the President must act on ministerial advice, and that withholding assent must not be arbitrary. However, it acknowledged that unlike Article 200, the proviso to Article 201 does not mandate assent if a Bill is repassed. 

The decision implies that presidential functions under Article 201 are not beyond constitutional discipline, particularly if the legislative process has been duly followed. This judgment may prove problematic as it limits gubernatorial discretion and weakens the checks and balances between the legislature and the governor. While largely a ceremonial post, the governor was intentionally vested with certain discretionary powers — including the authority to reserve bills for the President under Article 200. By holding that assent must be given once a bill is re-passed, even if it has serious constitutional issues, the ruling could prevent the governor from acting in cases where there is a genuine concern about repugnancy, federal overlap or conflict with fundamental rights. An underlying assumption in the judgment appears to be that governors act in bad faith — but what if the state legislature is acting unconstitutionally or for political gain? It has also prescribed time limits and mandated assent where the Constitution is silent. Article 200 says “shall declare”, but the lack of a time frame may have been deliberate —to allow flexibility in politically sensitive or legally complex matters. By filling constitutional silence with judicial mandates, the verdict has led to a “govt by judiciary” scenario.

 It also undermines federal dialogue and presidential scrutiny. Reserving a bill for the President enables Centre-state discussion, especially on Concurrent List subjects such as education. By barring this for re-passed bills, the court blocks Presidential input, making the legislative process  in states more insulated, possibly to the detriment of national legal coherence. If a state passes a bill that violates national standards, the governor’s inability to reserve it after it is re-passed could force assent to flawed laws, leaving litigation as the only recourse. The judgment shuts the door on even limited post-repass discretion, undermining the governor’s role as a constitutional sentinel. A strong pro-democracy ruling like this can be misused. A state govt with brute legislative majority could repeatedly pass problematic bills knowing the governor can’t stop them after the first return. 

The judgment places too much faith in legislative goodwill and doesn’t factor in populist or authoritarian tendencies at the state level. At the heart of the Supreme Court’s reasoning is the belief that a governor has no discretion once a bill is re-passed by the legislature. But this neglects the nuance in Article 200. The provision’s silence on a second reservation should not automatically translate into prohibition. The Constitution permits reservation to the President precisely to safeguard against conflict or repugnancy. Where a bill potentially conflicts with Union law, should the Governor be forced to assent? Consider the TN education bills, which potentially touched Entry 66 of List I (coordination of higher education standards). These are subjects that warrant central oversight, but the court’s ruling now blocks post-repass. While the court’s intention is laudable, its ruling veers toward judicial overreach, with possible unintended consequences for India’s federal structure, legislative scrutiny and constitutional balance. 

It shrinks the role of the President and disincentivises Centrestate dialogue. In subjects of legislative overlap (Concurrent List), exclusion of the President reduces constitutional oversight in favour of legislative supremacy at the state level. Even if the governor’s discretion is suspect, a re-passed bill may still suffer from repugnancy or ultra vires defects. In such cases, referring it to the President — who acts on Union cabinet advice — serves as a constitutional checkpoint. This decision may backfire by forcing assent to poorly drafted, rushed or unconstitutional bills simply because the legislature re-passed them. In controversial subjects such as language policy and higher education the governor may have legitimate concerns. The current ruling eliminates the chance to revisit those. While delay by governors is problematic, the remedy should come from Parliamentary legislation or Constitutional amendment, not judicial command. 

The phrase “as soon as possible” in Article 200 invites reasonable discretion, not judicially imposed ceilings. The court’s direction effectively changes a textual silence into a procedural mandate. A more balanced judicial approach would have allowed the governor to reserve re-passed bills only in narrowly defined exceptional circumstances; mandated written reasons and transparency in the exercise of Article 200 powers; recommended (not judicially enforced) a reasonable time frame for gubernatorial action. 

This would respect both the urgency of democratic governance and the need for legal oversight in federal systems. While the Supreme Court’s verdict is a progressive judgment with democratic intent, when judicial zeal fills every constitutional silence, we risk replacing checks and balances with a constitutional straightjacket. Reform is essential — but restraint is vital. (The writer is an advocate at the Madras high court) Email your feedback with name and address to southpole.toi@timesofindia.com