Pending Bills and Governor’s Powers: Is President’s reference a futile exercise?

Hyderabad: The apex authority under the Constitution of India, the President, can seek answers on important issues through a Reference.

The Supreme Court has a role in a Presidential Reference, which is just an advisory. She is vested with high power in the governance because the President is elected through an elaborate process involving MPs and MLAs across the nation — no other election is so comprehensive. This is why the President holds significant powers. When the President refers a matter to the Supreme Court, it is the constitutional duty of the Court to advise.

President Draupadi Murmur has now exercised that apex authority. A Presidential Reference, made under Article 143 of the Indian Constitution, which is not without legal and political consequences.

Pendency is the issue

It started with pending, and repeatedly pending many bills, approved by the Assembly of Tamil Nadu. It is not a case of clearing the pending court cases, secretariat files and administration rules as an essential need of the people of an entire state.

Recently, the Supreme Court ruled that the Tamil Nadu Governor’s decision to withhold assent from 10 bills was ‘unconstitutional and erroneous.’ Using Article 142, it held that the bills should be ‘considered’ or ‘deemed’ as assented to by the President. Because of the ‘pendency’, made issues very complicated for more than 2 years, which affected the executive branch of administration.

The authorities knew the rule of law, the Constitution, the recent judgment of the Supreme Court, and the State Government, besides the Centre, too. It’s an open book if the Governor opens. It is clear – just ‘pending’.

Past References

1. Delhi Laws Act case (1951) laid down the contours of ‘delegated legislation’, through which the legislature could delegate legislative powers to the executive for effective implementation of any law.

2. The Kerala Education Bill (1958) resulted in the court laying down the principle of harmonious construction between Fundamental Rights and Directive Principles of State Policy as well as interpretation of protection given to minority educational institutions under Article 30.

3. The Berubari case (1960), the court opined that ceding or acquisition of territory by India would need a constitutional amendment under Article 368.

4. The Keshav Singh case (1965), the court interpreted the powers and privileges of the legislature. In the Presidential poll case (1974), the court opined that Presidential elections should be held notwithstanding vacancies in the electoral college due to dissolution of State assemblies.

5. The Special Courts Bill (1978) provided that the court may decline to answer a reference; that the questions referred must be specific and not vague; and that the court, while answering a reference, should not encroach upon the functions and privileges of Parliament.

6. The Third Judges case reference (1998) laid down detailed guidelines for the collegium system with respect to the appointment of judges to the higher judiciary.

7. The Ram Janmabhoomi case (1993) has the Supreme Court declined to provide its opinion for only one reference.

The law for power of President to refer

“The Constitution of India, Article 142 deals with enforcement of decrees and orders of Supreme Court and orders as to discovery, etc: (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Article 143

Article 143. Power of President to consult Supreme Court

(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

Article 144. Civil and judicial authorities to act in aid of the Supreme Court

All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

Article 74

Article 74(1) says: The President is to act in accordance with the aid and advise of his council of ministers. Therefore, though the reference may go in the name of the President, in reality, the reference is by the Council of Ministers.

(2) But the Supreme Court cannot verify or examine as to whether the reference is by the President himself or on the advise of the council of ministers in view of the constitutional bar contained in Article 74(2). But if the President consults the Supreme Court under Article 143 in the absence of an advise from the council of ministers, he will be committing a violation of the Constitution for which he may be impeached.

Article 145. Rules of court, etc.

(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court, etc.

(2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.

(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five.”

The reference to ‘time limit’

On May 16, the Presidential Reference asked the Supreme Court to answer whether a time limit can be imposed by a judgment on the President, which became a controversy, saying ‘excessive’ or interference with one estate by the other. Article 201 of the Constitution does not prescribe any such time frame.

An important question: Governors, appointed by the President upon the advice of the Prime Minister and Home Minister, often act under the influence of the Union Government. They are supposed to serve as the highest authority within a state. They are expected to act promptly and responsibly. They must not misuse their powers to obstruct governance.

So, should Governors continue to keep bills pending for years in several states, including Tamil Nadu? Is this not a constitutional challenge? Are we deliberately creating a situation where state governments are rendered powerless to act? Should the people of Tamil Nadu — and other states — keep waiting endlessly for governance through bills? Is this good governance, bad governance, or non-governance?

In this case, the President is asking for a ‘doubt’ that has already been answered by the Supreme Court in a case between the State of Tamil Nadu vs. the Governor of Tamil Nadu (2025).

President’s questions:

1. Are the discretionary powers exercised by Governors under Article 200 subject to judicial review?

2. Is the protection provided to Governors/President under Article 361 an absolute bar to judicial scrutiny?

3. In the absence of a constitutional time frame, what is the appropriate manner in which the Governor should decide on a bill?

4. Are decisions taken by the President under Article 201 subject to judicial review?

5. Can a time limit be imposed on the President’s decision under Article 201? Can the courts prescribe such a limit?

Other important questions include:

1. How many options does a Governor have under Article 200 regarding a bill?

2. Should the Governor act solely on the advice of the State Cabinet?

3. Can the President, in such situations, seek advice from the Supreme Court?

4. Do the courts have the power to conduct judicial review under Articles 200 and 201?

5. Under Article 142, can courts issue directives to remove a Governor or President?

6. Is a law passed by the State legislature valid even without the Governor’s assent?

7. Under Article 145(3), must a Constitution Bench of at least five judges be constituted to interpret these issues?

8. Does Article 142 apply only to procedural law, or can it override constitutional provisions?

9. Can the Supreme Court resolve disputes between the Centre and States without an Original Suit under Article 131?

Supreme Court’s judgment

Justice Padiwala made it clear that the Governor has only three options when a bill is presented. Once a bill is returned to the legislature and passed again, the Governor cannot send it to the President. Only if the bill is altered as per the Governor’s suggestions can it be sent to the President; otherwise, not.

Now, the Constitution Bench of the Supreme Court is required to provide clarity. Articles 200 and 201 do not stipulate any time frame, which is not necessarily a flaw. But administration requires timely decisions to avoid red tape. Governors don’t have bigger jobs than this, even if their powers are largely ceremonial, they must act without unnecessary delay.

Home Ministry and the Prime Minister through the President

This is about the NDA Government’s Home Ministry’s case.

The HM submitted an affidavit to the Supreme Court suggesting that the President should act within a maximum time frame of three months. But who asked for this?

- It was the Home Ministry that requested the Supreme Court to impose the same three-month limit on the President!

- Then why raise 14 questions? Why constitute a special bench of the Supreme Court to render advice?

Maximum three months

On April 8, 2024, it made it very clear: “We are merely adopting the guidelines issued by the Ministry of Home Affairs (MHA) through two consecutive Office Memorandums (OMs) in 2016, which fixed a three-month timeline, specifically mentioned in the May 16 Judgement.” The government itself wanted this time limit back in 2016. If that’s the case, why is a fresh Supreme Court hearing on the Presidential Reference even necessary?

This is neither a new idea nor breaking news. The Central Government, through its Home Ministry, also proposed that Governors must decide within three months whether to assent to or reject bills.

Not binding on the President

It is bound by the recitals in the reference order and cannot question the truth of the facts presented or the bona fides of the authority making the reference.

But the most important point is not legally binding on the President, though it holds strong persuasive value. Real power is with the Executive. However, the Presidential Reference can only involve questions of law or fact of public importance.

The legal research website, PRSIndiaexplained, that the Supreme Court’s opinion in a Presidential Reference may influence future policy decisions by the government. Depending on the ‘governance’ under the Central and State Governments may refuse to take the ‘advice’ or be left without any action.

Despite not being legally binding, the Supreme Court's opinion carries significant weight. The executive and courts often follow the guidance provided in the reference. The problem is again ‘delay approval’ of legislative Bills from the Tamil Nadu Assembly just extends the ‘pendency’. Delay, in this context, is denial.

Discretion of the Supreme Court

The Supreme Court has the discretion to refuse to answer all or any of the queries raised in a Presidential Reference. They have declined to answer references in the past, citing reasons like the question being politically sensitive or involving appellate jurisdiction. Similarly, the Government may also follow the judgment.

The Supreme Court has already given an elaborate judgment on the procrastination and pendency of the Governor.

Hence, a Presidential Reference cannot be used as a method to review or appeal a judgment of the Supreme Court. The only mechanism for reviewing a Supreme Court judgment is the review petition itself, as noted by PRSIndia.

It is bound by the recitals in the reference order and cannot question the truth of the facts presented or the bona fides of the authority making the reference.

The President (i.e., the Prime Minister and his cabinet) has the discretion to exercise the advisory power. The Supreme Court has discretion to pick up some questions and leave some others, or say, it was earlier decided in a division bench in a Tamil Nadu case. Now, the legal issue constitutes a five-judge bench on a ‘decided case’. The result is buying some years for ‘pending’ beyond the DMK’s five-year term in Tamil Nadu. Thus, the will of Tamil Nadu through the Assembly will postpone the action of those 10 bills and many such Bills, not only in Tamil Nadu and many non-BJP Governments.

Hence, if the Central Government disagrees later, will it be a futile exercise?

Dr Madabushi Sridhar Acharyulu, LLD, MCJ, is a professor of the School of Law, Mahindra University, Hyderabad.

Disclaimer: The views and opinions expressed in the article are those of the author and do not reflect the official policy or position of NewsMeter.