NEW DELHI: The Supreme Court on Thursday asked the Centre if the Governor for the time immemorial does not declare he is withholding assent to a Bill passed by the state legislature, the court is powerless to intervene into the matter.
Examining the Presidential reference over setting timelines for the Governors and the President to clear the Bills, a five -judge Constitution bench headed by Chief Justice of India B R Gavai also observed that if the Governors withhold Bills indefinitely, then it will make the legislature defunct.
The bench, which also comprised Justices Surya Kant, Vikram Nath, P S Narasimha and A S Chandurkar, is to resume hearing on Tuesday.
On August 19, 2025, the top court began its hearing on reference seeking answers on 14 questions concerning the timelines fixed for the Governors and the President to clear the Bills.
The reference was made on May 13, 2025, after the Supreme Court's two-judge bench on April 8, 2025 declared that the Tamil Nadu Governor’s decision to withhold assent to 10 bills was "illegal" and "arbitrary" and fixed a three-month timeline for the President to clear the bills.
Hearing Solicitor General Tushar Mehta's arguments, the bench said, "If particular function is entrusted to the Governor and if for years together he withholds it, will that also be beyond that scope of judicial review of this court when this court has set aside the constitutional amendment itself which had taken power of judicial review that 'no amendment should be called into question by this court'. It has been found to be hitting at the Basic Structure of Constitution. With those judgments, can we say that howsoever highest the constitutional authority may be and if it does not act, still the court would be powerless."
Mehta said, in such situations, the solutions lied elsewhere, it is in the political sphere.
"Such cases are solved through the democratic political process. It is wrong to believe that there would be circumstances where every other organ would fail and therefore the only available organ is this court," he said.
"This court is the custodian of the Constitution, but there are problems which are not solvable by this court. When such things happen, we have to expect that the constitutional functionaries are responsible and responsive, because they are answerable to the people," he said.
The court, however, said the Governor is not answerable to the people.
On this, Mehta said, "Governor is the most vulnerable office, he can be removed for any reason, if something happens, the system takes care of it in the administrative side."
The court also asked if the state Assembly, elected by a majority, unanimously passed a Bill, and if the Governor does not exercise any option under proviso to Article 200 of the Constitution, it will be making the legislature totally defunct.
"What is the safeguard for the persons who are elected," the bench asked him.
The Solicitor General said in such a case, either the Parliament must amend the Constitution to provide for timelines or the issue must be resolved politically. The court, however, cannot be a substitute for the role of another constitutional functionary, he added.
Mehta contended that elected people have a lot of experience and they should never be undermined.
“I always say that irrespective of the colour of the political party, an elected person cannot be denounced that he is just an elected person”.
The bench asked who said that? The bench said it has never said anything about the elected people.
“I will show who said that. I am not going into….this court has not said,” Mehta clarified.
To this, the CJI said, “I have always said that separation of power….I have said that judicial activism has to remain, but it should turn into judicial terrorism or judicial adventurism”.
The court also asked Mehta if the last question in the Presidential reference, whether a State can file a petition under Article 32 of the Constitution, should be kept open. Mehta said he would seek instructions on this issue.
During the argument, Mehta underscored every problem in this country may not solutions have in the Supreme Court.
"There are problems in the country where you find solutions in the system," he said.
"If a constitutional functionary does not discharge function without any reason, are the hands of this court tied," the bench asked Mehta, who clarified he was not on justiciability but on fixing timelines.
Mehta said when Articles 200 and 201 of the Constitution do not mention any timeline, the court cannot read into them any such timeline.
At least, there are 31 instances where specific timelines have been mentioned in the Constitution because the framers felt that those actions are to be taken time-bound and whenever timelines are not specified, it has to be seen as a conscious omission, he said.
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