Supreme Court to Define Executive Timelines for Bill Assent in Landmark Presidential Reference Hearing

New Delhi – A Constitution Bench of the Supreme Court, led by Chief Justice of India (CJI) B.R. Gavai, has embarked on a seminal exercise to delineate the contours of executive power and judicial oversight concerning the legislative process. On July 22, 2025, the five-judge Bench issued notices to the Union government and all States on a Presidential Reference that poses fundamental questions about the judiciary's power to impose deadlines on the President and Governors for granting assent to State Bills. The matter, which the CJI noted "concerns the entire country," is poised to have profound implications for federalism, the separation of powers, and the role of constitutional functionaries.

The Bench, also comprising Justices Surya Kant, Vikram Nath, P.S. Narasimha, and A.S. Chandurkar, has scheduled the next hearing for July 29 to finalize the hearing schedule, with detailed arguments expected to commence in mid-August. This high-stakes constitutional deliberation stems from a Reference made by President Droupadi Murmu on May 13, 2025, under the Supreme Court's advisory jurisdiction in Article 143.

The Genesis: The Tamil Nadu Governor Judgment

The Presidential Reference was precipitated by a landmark, albeit contentious, judgment delivered by a Division Bench of Justices J.B. Pardiwala and R. Mahadevan on April 8, 2025. The verdict arose from a petition by the Tamil Nadu government against its Governor's prolonged inaction on ten Bills that had been re-passed by the State legislature. The Governor had subsequently reserved these Bills for the President's consideration.

In a significant ruling, the Division Bench declared the Governor's actions illegal. Critically, the court invoked its extraordinary powers under Article 142 of the Constitution to "do complete justice" and deemed all ten Bills to have received assent. This judicial "deemed assent" was a novel step, effectively overriding the executive's role in the legislative process to remedy what the court saw as a constitutional impasse.

"The issue affects all the States. The Supreme Court is concerned with the entire country. The court will answer the questions raised by the President," CJI B.R. Gavai stated, underscoring the national importance of the reference.

The April 8 judgment reasoned that such a drastic measure was necessary, stating, "it is only after deepest of deliberations, and having reached at the firm conclusion that the actions of the Governor... were all in clear violation of the procedure envisaged under the Constitution.”

Core Constitutional Questions Before the Bench

The President has posed 14 questions to the apex court, fundamentally challenging the judicial interventions established by the April 8 verdict. The Reference seeks clarity on several interlocking constitutional principles:

1. Imposition of Timelines: Can the judiciary impose timelines on the President and Governors for exercising their powers under Articles 200 (Governor's assent) and 201 (Bills reserved for President's assent) in the absence of any constitutionally prescribed time limit?

2. Scope of Article 142: The Reference directly questions the use of Article 142 to create a "deemed assent," asking if this power extends to issuing directions "contrary to or inconsistent with existing substantive or procedural provisions of the Constitution." It queries whether the "constitutional powers of the President/Governors be substituted by a judicial order."

3. Justiciability of Executive Discretion: A central issue is whether the decisions of the Governor and the President under Articles 200 and 201 are justiciable before a Bill becomes law. The Reference also raises doubts about whether the "constitutional discretion" of these high offices is subject to judicial review at all, citing "conflicting judgments."

4. Immunity under Article 361: The court is asked to clarify if the personal immunity from legal action granted to the President and Governors under Article 361 constitutes an "absolute bar to judicial review" of their actions related to Bill assent.

5. Jurisdiction of a Two-Judge Bench: The Reference also raises a procedural but constitutionally significant question: whether a two-judge Bench can pronounce on "substantial questions of law regarding the interpretation of the Constitution" without referring the matter to a minimum five-judge Bench, as mandated by Article 145(3).

The Debate on Advisory Jurisdiction and Its Binding Nature

The current proceedings are taking place under Article 143, which grants the Supreme Court advisory jurisdiction. This unique power allows the President to seek the court's opinion on questions of law or fact of public importance. However, the legal status of such opinions remains a subject of debate.

The Reference queries if a law made by a State Legislature could even “be considered a law in force without the assent of the Governor,” directly challenging the concept of "deemed assent" introduced in the April 8 judgment.

While Article 141 states that the "law declared" by the Supreme Court is binding on all courts, the prevailing view, established in cases like St. Xavier’s College v. State of Gujarat (1974) , is that advisory opinions under Article 143 do not constitute binding precedent. They do, however, command immense persuasive authority and are "normally followed," as noted in the Cauvery Water Disputes Tribunal (1991) reference.

This distinction is crucial. The April 8 judgment, delivered under the court's adjudicatory jurisdiction, remains the binding law of the land. The current reference cannot formally overturn it. The Supreme Court itself, in the Cauvery reference, cautioned that Article 143 cannot be used by the executive to "seek a review or reversal of its settled judicial decisions."

However, the precedent set in In re Natural Resources Allocation (2012) suggests that the court, while hearing a reference, can "clarify, restate, or even formulate a fresh opinion on a question of law" so long as the rights of the parties in the original case are unaffected. This provides the Constitution Bench with a pathway to refine, elaborate upon, or even circumscribe the legal principles laid down in the April 8 judgment without formally overturning it.

Arguments and Implications for Legal Practice

During the preliminary hearing, senior advocates representing various States foreshadowed the complex arguments to come. K.K. Venugopal, for Kerala, questioned the very maintainability of the Reference, while P. Wilson, for Tamil Nadu, argued that all questions posed were already settled by the April 8 judgment.

The Union government, represented by Attorney-General R. Venkataramani and Solicitor General Tushar Mehta, will assist the court, signaling the executive's keen interest in a re-evaluation of the April 8 verdict. The outcome of this reference will have far-reaching consequences for constitutional litigation and the balance of power between the judiciary, the executive, and state legislatures.

For legal practitioners, the court’s opinion will be instructive on several fronts:

* Writ Petitions Against Governors/President: It will clarify the extent to which the actions (or inaction) of Governors and the President in the legislative sphere can be challenged through writ petitions.

* Scope of Judicial Remedies: The ruling will set a precedent on the creative use of Article 142 in cases of executive non-compliance and define the limits of judicial intervention in what is traditionally considered an executive function.

* Federal Disputes: The decision will directly impact the ongoing power struggles between several State governments and their respective Governors, potentially providing a clearer framework for resolving disputes over stalled legislation.

As the Supreme Court prepares for a detailed hearing, the legal community watches with bated breath. The Bench is tasked not merely with answering 14 questions, but with articulating a coherent constitutional philosophy on the checks and balances that govern the creation of law in India's federal structure. Its opinion will shape the boundaries of power for decades to come.