A five-judge Constitution Bench, led by Chief Justice BR Gavai, was constituted to deliberate on this crucial reference.
Published Nov 22, 2025 | 1:00 PM ⚊ Updated Nov 22, 2025 | 1:00 PM
Supreme Court of India. (iStock)
Synopsis: This unprecedented exercise was triggered by the judicial activism of an earlier two-judge Supreme Court Bench, which, in the context of the Tamil Nadu Governor’s prolonged inaction on several bills, had sought to prescribe fixed timelines for constitutional authorities.
The recent advisory opinion delivered by the Supreme Court of India in response to a Presidential Reference under Article 143(1) has offered critical clarity on the legislative powers and limitations of the Governor under Article 200 of the Constitution.
This unprecedented exercise was triggered by the judicial activism of an earlier two-judge Supreme Court Bench, which, in the context of the Tamil Nadu Governor’s prolonged inaction on several bills, had sought to prescribe fixed timelines for constitutional authorities.
President Droupadi Murmu, subsequently formulated 14 legal questions and sought the Supreme Court’s advisory opinion to resolve the constitutional ambiguity and the perceived overreach into the domain of the executive and legislature.
A five-judge Constitution Bench, led by Chief Justice BR Gavai, was constituted to deliberate on this crucial reference. The central constitutional issue, crystallized in Question No. 5 and Question No. 7, was whether the Supreme Court could, through a judicial order, impose fixed timelines for the Governor’s decision-making process when the Constitution itself is silent on such a prescription.
The Constitution Bench categorically held that it would not be appropriate for the Supreme Court to judicially prescribe rigid timelines for the Governor to discharge his functions under Article 200.
The Court further emphasized that the text of Article 200 and Article 201—which outlines the Governor’s options for a bill—uses the phrase “as soon as possible,” indicating a flexible, elastic timeframe intended to accommodate diverse contexts and situations within India’s cooperative federal framework.
Imposing a rigid, “one-size-fits-all” timeline would be strictly contrary to this constitutional elasticity and would be tantamount to an amendment of the Constitution itself, an authority the judiciary does not possess.
The Court’s ruling thus nullified the directions set out in the earlier two-judge Bench judgment in the Tamil Nadu case, which had fixed specific deadlines for the Governor to act on bills. The Court held that this original judgment had exceeded judicial limits by attempting to fill a perceived constitutional vacuum with rigid, judicially-created timelines.
The advisory opinion delved into the delicate balance of the Doctrine of Separation of Powers, which forms part of the basic structure of the Constitution. This was particularly relevant in answering Question No. 10, which asked whether the exercise of constitutional powers and orders of the President or Governor could be substituted under Article 142.
The five-judge Bench delivered a decisive blow to the concept of “deemed assent.” This concept, which had been invoked by the two-judge Bench to declare a set of ten bills passed by the Tamil Nadu Assembly as having automatically received the Governor’s assent due to prolonged inaction, was deemed alien to the Constitution.
The Supreme Court clarified that the power under Article 142, which grants it plenary jurisdiction to pass any decree necessary for doing “complete justice,” cannot be used to usurp or substitute the exclusive constitutional functions of the Governor or the President.
Granting ‘deemed assent’ would be a virtual takeover of the executive and legislative function, fundamentally antithetical to the spirit of the Constitution and the separation of powers. The Governor’s legislative role under Article 200 cannot be supplanted by another constitutional authority.
Addressing the scope of judicial review vis-à-vis immunity, the Supreme Court clarified its stance on Article 361, which grants personal immunity to the Governor. The Court held:
“Article 361 of the Constitution is an absolute bar on judicial review in relation to personally subjecting the Governor to judicial proceedings. However, it cannot be relied upon to negate the limited scope of judicial review that this Court is empowered to exercise in situations of prolonged inaction by the Governor under Article 200. It is clarified that while the Governor continues to enjoy personal immunity, the constitutional office of the Governor is subject to the jurisdiction of this Court.”
This crucial holding means that while the individual Governor cannot be sued or personally held answerable in court for their official acts during their term, the institutional office of the Governor is not above the law. The Governor’s personal immunity under Article 361 cannot be used as a justification for indefinite delays or prolonged constitutional inaction.
Notwithstanding the above, the Court did establish a clear boundary for gubernatorial conduct. The Court held that the Governor cannot indefinitely withhold assent to bills passed by the State Assemblies, thereby frustrating the will of the people expressed through the elected legislature.
The constitutional office of the Governor is therefore definitely subject to the jurisdiction of the Court to prevent prolonged and evasive constitutional inaction. The Court carved out a space for limited judicial scrutiny in circumstances of “prolonged, unexplained, and indefinite inaction” on the part of the Governor.
In such “glaring circumstances,” the Court is empowered to issue a limited mandamus—a direction—asking the Governor to exercise his constitutional choice under Article 200 within a reasonable period of time.
The advisory opinion, while illuminating on the principles of law, has consciously left a key functional issue open. By affirming that the Court can issue directions for the Governor to act within a “reasonable period,” but simultaneously refusing to define that period, the Supreme Court has passed the baton back to the factual matrix of each case.
The reference, and consequently the Court’s opinion, did not provide a formula for determining what constitutes “unreasonable delay” or “reasonable time.” This means the question of when the Court can intervene and what specific directions can be issued (beyond a general instruction to act) will depend on the facts and circumstances of each case that arises for consideration.
The consequences of a Governor failing to act even after receiving a judicial direction to take a decision within a reasonable time also remain an issue to be tested in future litigation.
The verdict achieves a complex balance: it protects the Governor’s constitutional discretion and prevents judicial overreach by rejecting fixed timelines and deemed assent, while simultaneously protecting the democratic and federal structure by subjecting the Governor’s inaction to limited judicial accountability. The ultimate outcome, therefore, is a call for constitutional functionaries to engage in a dialogue process and act responsibly, ensuring the smooth functioning of the legislative process without arbitrary obstruction.
(Views expressed here are personal.)
(Edited by Sumavarsha)
