‘No Judicial Terrorism, But Can’t Sit Idle If…’: CJI Gavai On Governors’ Assent To Bills, SC Reserves Verdict
The Supreme Court, considering a presidential reference on Governors' assent to bills, questioned if it could remain passive after government argued erosion of separation of powers.
Calling itself the “custodian of the Constitution”, the Supreme Court on Thursday posed a pointed question—whether it could “sit idle” if a constitutional authority such as a Governor failed to perform duties. The observation came as the Constitution Bench reserved its verdict on a presidential reference regarding the timeline for granting assent to bills.
The hearings, spread over 10 days, saw Chief Justice of India (CJI) B R Gavai leading a bench that also included Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar. The Bench heard extensive arguments from Attorney General R Venkataramani, Solicitor General Tushar Mehta, and senior advocates Kapil Sibal, Abhishek Singhvi, Gopal Subramanium, Arvind Datar, among others.
The reference, made by President Droupadi Murmu, focused on Articles 200 and 201 of the Constitution, and raised the central question: can the court prescribe timelines for Governors and the President to decide on bills passed by state legislatures?
'Can Court Sit Idle If One Wing Of Democracy Fails?': CJI Gavai Asks
On the final day of submissions, Solicitor General Tushar Mehta invoked the principle of separation of powers, cautioning against judicial interference in the discretionary domain of Governors, news agency PTI reported. The Bench, however, intervened with a strong query from the CJI.
“Whosoever high one may be, as a custodian of the Constitution (refers to SC)… I publicly say that I am a firm believer in the doctrine of separation of powers and though judicial activism has to be there, there should not be judicial terrorism or adventurism. But at the same time, if one wing of democracy fails to discharge its duty, is the custodian of the Constitution powerless and would sit idle?” Chief Justice Gavai asked, as quoted by PTI.
Mehta responded by asserting, “Not only the court, the executive is also a custodian of the fundamental rights of citizens…Legislature is also custodian, all three organs.”
Centre Argues Against “Straitjacket” Timelines
Mehta argued that directing Governors through a mandamus in relation to their legislative discretion would erode the doctrine of separation of powers, a part of the Constitution’s basic structure. He acknowledged that Governors could not indefinitely hold bills but insisted that their discretionary powers under Article 200 could not be overridden with a “straitjacket formula” of fixed deadlines.
Highlighting Governors’ scope to act independently in certain contexts, including ordinance promulgation, Mehta pushed back against submissions by opposition-ruled states, which claimed Governors must act solely on the advice of their Councils of Ministers.
“Suppose a state legislature passes a bill declaring it will no longer be a part of the Union of India, the Governor has no choice but to withhold assent,” Mehta argued, as per PTI.
The Solicitor General stressed that discretion for Governors and the President exists in certain circumstances, even though ministerial advice typically guides their decisions. Article 200, he noted, grants Governors four options on bills—assent, withhold, return for reconsideration, or reserve for the President—and its phrasing “as soon as possible” cannot be stretched to mean indefinitely.
Citing records since 1970, Mehta said 90 per cent of bills from state assemblies were cleared within a month, and in only 20 out of 17,150 cases had Governors withheld assent. He argued the lack of explicit timelines in the Constitution reflected a “cautious choice of words” rather than a legal gap.
“This system has functioned in harmony for decades. Only recently, with the NCT Delhi episode, has litigation on this issue proliferated,” Mehta submitted, contending that no constitutional vacuum existed for the court to intervene.
President’s Reference Under Article 143
President Droupadi Murmu had in May invoked Article 143(1), seeking the Supreme Court’s opinion on 14 questions, including whether Governors or the President could indefinitely withhold assent to bills, and whether courts had the authority to prescribe mandatory timelines for such decisions.
The Bench has reserved its verdict on the matter, which could have significant implications for the balance between constitutional authorities and legislative processes.
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