Supreme Court Advisory Opinion on Governor’s Assent Ignites Constitutional Crisis, Critics Warn

New Delhi – A recent advisory opinion by a five-judge Constitution Bench of the Supreme Court has sent shockwaves through the legal and political landscape, with prominent jurists and political leaders warning that it fundamentally rewrites India's constitutional framework, severely undermines federalism, and grants unprecedented, unchecked power to unelected Governors.

The opinion, delivered in the 16th Presidential Reference, In re: Assent, Withholding or Reservation of the Bills by the Governor and the President of India , addresses the contentious issue of the powers and timelines for Governors and the President when giving assent to bills passed by state legislatures under Articles 200 and 201 of the Constitution. While ostensibly aimed at clarifying constitutional mechanics, the opinion has been vehemently criticized for overturning decades of settled jurisprudence and striking at the heart of India's democratic and federal structure. One senior advocate described the opinion as a "typical instance of the Court desecrating the Constitution by turning it on its head."

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Redefining Gubernatorial Power: A Departure from Precedent

At the core of the controversy are two of the Court's most consequential findings. First, the Bench opined that a Governor is not bound by the aid and advice of the state's Council of Ministers when exercising their functions under Article 200. Second, it held that courts cannot impose fixed timelines for assent and that the Governor's actions are largely non-justiciable.

The Court's conclusion on gubernatorial discretion directly contradicts the long-established principle, settled by a seven-judge bench in Samsher Singh v State of Punjab (1974) , that the President and Governors are constitutional heads who must act on the advice of their respective ministers, save for a few well-defined exceptions. Critics argue that Article 200 was never intended to be one of those exceptions. As one constitutional expert noted, "Accepting this will create two parallel centres of power which the Constitution never envisages... The Governor not being answerable to anyone will become all powerful which is an antithesis to the concept of democracy."

The opinion states:

“The Governor enjoys discretion in choosing from these three constitutional options [assent, withhold, or reserve] and is not bound by the aid and advice of the Council of Ministers, while exercising his function under Article 200.”

This interpretation has been decried as a dangerous regression. The Constituent Assembly debates, particularly the statements of Dr. B.R. Ambedkar and T.T. Krishnamachari, explicitly clarify that the phrase "in his discretion" was deliberately removed from the draft article to ensure the Governor could not act independently of the elected government in legislative matters. The Court’s new interpretation, critics contend, ignores this crucial legislative history and the foundational principles of the Westminster model of parliamentary democracy adopted by India.

The Erosion of Federalism and Legislative Will

The practical implications of this advisory opinion are profound, particularly for states governed by parties in opposition to the central government. By empowering Governors—who are appointees of the Union government—with personal discretion to delay or effectively veto legislation, the ruling is seen as a tool that could paralyze state governance and subordinate the will of elected state legislatures to the whims of an unelected functionary.

Randeep Singh Surjewala, Member of Parliament and a Supreme Court advocate, argued that the opinion sounds the "death knell for federalism." He stated, "If Bills/laws passed by the State Legislature are going to be kept pending by the Governor for months... it would effectively mow down an ‘elected Legislature’ before the whims of an ‘unelected Governor’. This is the very anti-thesis of democracy."

This concern is amplified by the Court’s refusal to impose binding timelines on Governors for deciding on bills. While the Bench acknowledged that "prolonged, unexplained, and indefinite inaction" is impermissible and could invite a "limited mandamus" from the court, it rejected the concept of "deemed assent" and refrained from setting any enforceable deadlines. Critics argue this provides a loophole for obstruction, as a Governor can stall legislation indefinitely with minimal justification, rendering the judicial remedy of a "limited mandamus" practically ineffective.

The opinion has also created a peculiar contradiction. It asserts that even after a bill is returned to the legislature, passed again, and presented to the Governor, the Governor is not obligated to grant assent. Instead, they retain the option to reserve the bill for the President’s consideration. This interpretation appears to defy the explicit language of the first proviso to Article 200, which states the Governor "shall not withhold assent" from a re-passed bill.

Justiciability and Judicial Review: A Step Backward?

A significant portion of the criticism is directed at the Court's view on the justiciability of a Governor's actions under Article 200. The opinion suggests that these actions are largely immune from judicial review on their merits. This stands in stark contrast to the evolution of constitutional law in India, where the scope of judicial review has expanded to cover a wide range of executive and even presidential/gubernatorial powers, including the imposition of President's Rule (Article 356) and the exercise of pardon powers (Articles 72 & 161).

The landmark ruling in Samsher Singh had declared that a refusal of royal assent would be "unconstitutional." Legal scholars argue that the only logical sequitur is that such an unconstitutional act must be justiciable. By overlooking this and relying on older, obiter dicta, the current opinion is seen as a retreat from the judiciary's role as the ultimate guardian of the Constitution. As one analysis pointed out, "To opine that action under Art 200 is not justiciable is wholly misconceived and retrograde."

The principle of judicial review as a core element of the Constitution's basic structure is meant to ensure that no power is absolute or unreviewable. Critics fear that by shielding the Governor's legislative role from meaningful scrutiny, the Court has inadvertently weakened this fundamental check on executive power.

Conclusion: A Constitutional Crossroads

While the Supreme Court’s pronouncement is an advisory opinion under Article 143 and not technically a binding judgment, it carries immense persuasive weight and is binding on all other courts. The legal community is now grappling with the fallout of a decision that many believe has unsettled 75 years of constitutional practice.

The opinion is being viewed as a moment of "judicial surrender," one that prioritizes a textualist interpretation of the Constitution over its living spirit, established conventions, and democratic ethos. The overarching fear is that it will legitimize gubernatorial obstructionism, deepen the fault lines in Centre-state relations, and ultimately damage the delicate federal balance that is a cornerstone of the Indian republic. As the nation digests its implications, the call for the Supreme Court to reconsider this opinion grows louder, echoing President Franklin D. Roosevelt's historic plea to "save the Constitution from the Court and the Court from itself."