Supreme Court Asks What Constitutionally Permissible Recourse Exists When Governors Keep Bills Pending For Years

New Delhi: During the hearing of the Presidential Reference on the questions relating to granting assent to Bills, the Supreme Court on Tuesday (August 19) orally remarked that the judgment by the two-judge bench in the Tamil Nadu Governor case might have been given to "handle an egregious situation" created by the Governor keeping the Bills passed by the State Legislative Assembly pending for a long time.

SC Questions Governor’s Delay on Bills

The Court asked the Attorney General for India what would be the "Constitutionally permissible recourse" when the Court is confronted with a situation where the Governor was keeping Bills pending for several years. If the Court is wrong in declaring deemed assent for the Bills, what should be the next option, the bench asked.

Attorney General for India R Venkataramani said that even in such an undesirable fact situation, the Court cannot take over the functions of the Governor and declare assent for the Bills.

A bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar was hearing the matter. During the hearing, Justice Surya Kant asked Attorney General Venkataramani whether the statement in the TN Governor case judgment that bills from 2020 are pending was correct.

Bar & Bench and Live Law report that at the hearing, the Court first took up preliminary objections on maintainability. Senior Advocate P Wilson for Tamil Nadu and Senior Advocate Abhishek Manu Singhvi argued that Article 143 cannot be used as a substitute for review or curative petitions, and that the reference undermines institutional integrity by indirectly appealing against a judgment. Senior Advocate KK Venugopal said the matter was covered by earlier rulings interpreting “as soon as possible” in Article 200, but noted that those were decided by smaller benches.

CJI Flags Article 145(3) Hurdle in Governor Bill Row

CJI Gavai asked how to overcome Article 145(3), which requires a five-judge bench for substantial constitutional questions, and remarked that since the President herself has sought advice, the issue must be addressed. The Attorney General R Venkataramani said there is no bar under Article 143, and that in cases of public importance, the Court can answer such questions. Solicitor General Tushar Mehta argued that this was a sui generis issue, with the President seeking clarity on a constitutional problem. He added that the Constituent Assembly had consciously removed timelines from the draft provisions, with Dr Ambedkar suggesting the phrase “as soon as possible.”

The Court discussed whether Article 142 could be used to declare deemed assent. It was then that the Attorney General argued that the Court cannot take over the functions of the Governor, even in egregious cases where Bills remain pending for years, while Justice Narasimha observed that the Tamil Nadu judgment seemed to address such an extreme situation. The Bench asked the Attorney General what constitutionally permissible recourse exists if Governors indefinitely delay Bills. Venkataramani said the Court should return the matter to the Governor instead of assuming his role.

The judges referred to paragraphs in the Tamil Nadu judgment that criticised the Governor’s lack of bona fides and invoked Article 142 to declare deemed assent to ten Bills pending since 2020. The Attorney General said this created a precedent for future cases, which was problematic. The Solicitor General argued that the Court could clarify that the Tamil Nadu ruling was not correct law, not as an appellate exercise, but through advisory powers. He also pointed to Constituent Assembly debates where timelines were deleted to reflect faith in constitutional functionaries.

The hearing also examined questions framed in the reference, including whether Article 361 bars judicial review of Governors’ actions under Article 200, and whether Article 142 can be used to override constitutional provisions. The Attorney General said Article 142 cannot be used to create a new constitutional scheme, while the Solicitor General stressed that the President was only seeking guidance on what to do when faced with such constitutional problems. Senior Advocates Harish Salve and Maninder Singh supported the view that while the Court should not overrule earlier rulings in advisory jurisdiction, it could still answer the questions raised. The matter will continue on Wednesday.