Restoring the ‘menace’ of unfettered discretion

Why in the News ?

In April 2025, the Supreme Court delivered two closely spaced but contrasting constitutional pronouncements on the Governor’s power to grant assent to State Bills under Article 200. While State of Tamil Nadu vs Governor of Tamil Nadu imposed timelines and the doctrine of deemed assent, a subsequent Presidential Reference (Special Reference No. 1 of 2025) diluted these safeguards, reviving concerns over unfettered gubernatorial discretion and erosion of State legislative supremacy.

Background

• Article 200 empowers the Governor to:
  • Grant assent
  • Withhold assent
  • Return a Bill for reconsideration
  • Reserve the Bill for the President
• In recent years, Governors-especially in Opposition-ruled States-have been accused of indefinitely delaying assent, causing policy paralysis.
• In State of Tamil Nadu vs Governor of Tamil Nadu (April 2025), the Supreme Court:
  • Fixed definitive timelines for Governors
  • Allowed courts to deem assent in cases of unexplained inaction
• Soon after, responding to a Presidential Reference, the Court revisited the issue and re-expanded gubernatorial discretion.

Feature

• Held that judicially imposed timelines on Governors have no explicit textual basis in the Constitution.
• Rejected the concept of deemed assent as incompatible with the constitutional scheme.
• Interpreted Articles 200 and 201 as enabling a continuing “constitutional dialogue” between institutions.
• Allowed Governors to:
  • Refer Bills to the President even after re-enactment by the legislature
  • Exercise wide discretion without strict judicial enforceability
• Relied on Article 361 (Governor’s immunity) to limit judicial scrutiny.

Challenge

Revival of Unfettered Discretion

• The verdict effectively restores the very discretion that the April judgment sought to restrain.
• Enables motivated silence and procedural obstruction by Governors.

Undermining Legislative Supremacy

• The first proviso to Article 200 clearly mandates assent after reconsideration, but this safeguard has been diluted.
• Reiterated Bills can now be sent into a constitutional limbo via Presidential reference.

Federalism Under Strain

• Governors are unelected Union nominees.
• Expanded discretion strengthens Union dominance over States, weakening cooperative federalism.

One-Sided “Constitutional Dialogue”

• Dialogue presupposes timely responses.
• The judgment legitimises delay without consequences, making the dialogue asymmetrical.

Misuse of the “Checks and Balances” Doctrine

• Assent is a procedural function, not a substitute for constitutional adjudication.
• Courts remain the proper forum for testing constitutionality, not Raj Bhavan.

Way Forward

Clarify Article 200 through constitutional convention or legislation:

• Define reasonable timelines without undermining textual fidelity.

Limit reservation to the President:

• Only in exceptional, constitutionally specified circumstances.

Judicial review of mala fide delay:

• Even if timelines are not fixed, prolonged inaction should attract strict scrutiny.

Strengthen federal norms:

• Reaffirm Sarkaria and Punchhi Commission recommendations.

Codify conventions:

• Like in parliamentary democracies, discretion should be guided by settled practice.

Conclusion

The Presidential Reference verdict represents a constitutional retrogression, reversing a rare judicial attempt to discipline gubernatorial excesses. By restoring elastic discretion under the guise of constitutional dialogue and checks and balances, the ruling risks converting the Governor’s assenting power into a political veto, undermining legislative supremacy and federal equilibrium. In India’s constitutional design, the Governor was meant to be a neutral sentinel, not an obstructionist checkpoint.