“We’ll be expressing a view on law, not on the Tamil Nadu Governor’s decision,” Chief Justice of India BR Gavai remarked, as the Constitution Bench of the Supreme Court heard the Presidential Reference concerning timelines for gubernatorial and presidential assent to Bills.

The five-judge Bench—comprising Chief Justice of India (CJI) BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha, and Justice A Chandurkar—emphasised that it was exercising its advisory jurisdiction under Article 143, not sitting in appeal over the Tamil Nadu Governor judgment.

The Core Issue

The Presidential Reference was triggered by concerns over the April 8 verdict in the Tamil Nadu Governor case, which laid down strict timelines for constitutional authorities to act on Bills submitted for assent. Several states, including Kerala and Tamil Nadu, raised preliminary objections to the maintainability of the Reference, arguing that the issues had already been conclusively decided by the two-judge bench in that case.

Senior Advocates KK Venugopal (for Kerala) and Dr. Abhishek Manu Singhvi (for Tamil Nadu) contended that Article 143 cannot be invoked to revisit settled judicial decisions, warning that such an exercise would effectively convert the advisory power into an intra-court appeal.

Bench’s Observations

Responding to these objections, Justice Surya Kant clarified:“In Article 143, the Court may render an opinion that a certain judgment does not lay down the correct law, but it will not overrule the judgment.”

CJI Gavai further pressed Venugopal on the impact of Article 145(3), noting that questions of substantial constitutional importance must be decided by a Constitution Bench of at least five judges—something missing in previous judgments on the subject, which were delivered by smaller benches.

The States’ Argument

Venugopal maintained that under Article 141, all Supreme Court judgments, regardless of bench strength, are binding. He warned that the Reference was “wholly outside Article 143” and was effectively the Union Government attempting to re-open a settled case without filing a review.

Dr. Singhvi took the same line, cautioning against using Article 143 as a “substitute for review or curative powers.” He invoked precedents from the Cauvery and 2G References, stressing that while clarifying points of law for the future may be permissible, disturbing an existing judgment binding on parties would be “subversive of all judicial principles.”

The Centre’s Stand

On the other hand, Attorney General R. Venkataramani (AG) and Solicitor General Tushar Mehta (SG) defended the maintainability of the Reference. They argued that Article 143 is broad and flexible, empowering the Court to revisit prior rulings in matters of grave constitutional importance.

The AG termed the present matter “sui generis,” pointing to conflicting judgments across benches of varying strength that have created functional disharmony between constitutional authorities. The SG added that any self-imposed restriction against reopening earlier judgments under Article 143 has been relaxed in the 2G Reference thereby granting the Court ample discretion.

Senior Advocates Harish Salve, Neeraj Kishan Kaul, and Maninder Singh also backed the Centre, contending that judicial discipline does not amount to a jurisdictional bar, and that the Supreme Court retains the inherent power to revisit and even overrule past decisions while acting in advisory capacity.

The Road Ahead

After hearing extensive arguments on maintainability, the Bench proceeded to hear the Attorney General on the merits of the Reference. At the heart of the debate lies a delicate balance: whether Article 143 empowers the Supreme Court to clarify or even depart from prior rulings without unsettling judgments already binding on parties.

As the proceedings continue, the Court’s interpretation will have far-reaching implications—not only for the constitutional scheme governing assent to Bills, but also for the scope and limits of its advisory jurisdiction under Article 143.

0n 28th of August 2025, a five-judge Constitution Bench of the Supreme Court, led by Chief Justice of India B.R. Gavai, continued hearings on the Presidential Reference concerning the powers of Governors in assenting to State Bills. The debate centered on whether Governors enjoy wide discretionary powers and if their inaction on Bills can be judicially reviewed.

Tamil Nadu’s Stand: No General Discretion for Governors

Senior Advocate Abhishek Manu Singhvi, appearing for Tamil Nadu, strongly opposed the idea of “general discretion” to Governors, arguing it would “create chaos.” He maintained that the Governor’s role in law-making is limited to three options under Article 200 — assent, return once, or refer a Bill to the President.

Singhvi emphasized that:

• · Governors cannot act as “super Chief Ministers” or override elected governments.

• · Article 163 does not grant general discretionary power; Governors must act on the aid and advice of the Council of Ministers, barring rare exceptions.

• · Withholding a Bill indefinitely is unconstitutional, as the Governor is only a facilitator, not an obstructer.

• · The Punchhi Commission and Constituent Assembly debates reinforce that the Governor cannot overrule the State Ministry.

Quoting B.R. Ambedkar, Singhvi said the Governor and Chief Minister cannot be “two swords in the same scabbard.” He described the Governor’s role as that of a “friend, philosopher, and guide,” not an authority to stall democracy.

Centre’s Argument: Immunity and Limits of Judicial Review

Solicitor General Tushar Mehta, representing the Centre, argued that Governors enjoy complete immunity under Article 361 and cannot be subjected to writ jurisdiction under Articles 32, 226, or

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131. He cited the B.P. Singhal judgment to assert that Governors are not agents of political parties or the Union government.

Key points from the Centre’s stand:

• · The President’s and Governor’s decisions, including delays in granting assent, fall within their constitutional wisdom and cannot be bound by judicially fixed deadlines.

• · Judicial review is not permissible on the President’s satisfaction under Article 356, and similarly, should not extend to Article 200.

• · A State government cannot invoke Article 32 to claim violation of fundamental rights against the Governor or President.

Court’s Observations

The Bench questioned the Centre, noting that if a Governor’s recommendation for President’s Rule under Article 356 is reviewable, why not prolonged inaction on State Bills. CJI Gavai recalled Constituent Assembly debates that envisaged Governors deciding on Bills within six weeks, criticizing indefinite delays as thwarting the democratic will.

The CJI stressed that once a Bill is assented to, it becomes law and can be challenged in court. However, the present Reference concerns Governors “sitting on Bills for years,” not the validity of assent itself.

Next Step :

The Centre suggested adding two more questions to the Reference:

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• 1. Can a State approach the Supreme Court under Article 32 against functions exercised by the President or Governors under Articles 111, 200, 201?

• 2. What are the contours of immunity under Article 361?

The hearings will continue as the Bench considers the constitutional balance between gubernatorial discretion, federalism, and judicial oversight.

CASE  Details: 

https://api.sci.gov.in/supremecourt/2023/45314/45314_2023_11_1501_60770_Judgement_08-Apr-2025.pdf