Presidential Reference hearing

Presidential Reference hearing Governors have no role in lawmaking, they are only titular heads, three Opposition-ruled States argue in SC
While the Centre argued that a political, and not a judicial solution, is needed to tackle delay in grant assent to Bills, West Bengal insists on time limit as Governors can’t withhold bills indefinitely.

NEW DELHI, 18-08-2025 – A view of the Supreme Court of India on August 18, 2025. Photo: DEEPIKA RAJESH / INTERN / THE HINDU.
NEW DELHI, 18-08-2025 – A view of the Supreme Court of India on August 18, 2025

Three Opposition-ruled States argued against discretionary powers of Governors in withholding bills and said it is the role of legislature to make laws and Governors have no rule in it.

A five-judge Constitution bench on Wednesday (September 3, 2025) continued its hearing on the Presidential Reference which asked whether courts could impose timelines for Governors and the President to deal with bills passed by State assemblies.
Governors cannot sit over Bills endlessly, say Supreme Court judges
Kapil Sibal, for West Bengal, argued that a Bill sent to the Governor has to be assented, and the Centre has power to nullify a State law or it may be challeged in courts, but the will of the people must be respected.

Former Union Minister Anand Sharma, who made a comeback as a lawyer representing Himachal Pradesh, argued the President or Governors don’t even summon the Parliament or Legislative Assemblies. The process is kick-started by the Parliamentary Affairs Minister.

Gopal Subramanium, for Karnataka, quoting a previous Supreme Court judgment, said there cannot be a dyarchy (Governor and State government) in a State.
Bench rises for the day
Gopal Subramanium will continue his arguments on September 9.

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Gopal Subramanium, for Karnataka, explains why ‘assent’ is required from the President or Governors for Bills.

He argues it is a carry-on of the formal expression of executive action by the President or Governor under Articles. 77 and 166 of the Constitution.

But for President or Governor to intervene in legislative action would need specific permission in the text of the Constitution, he says.

September 03, 2025 15:53
Governor’s office cannot be used to nullify the will of the people: Anand Sharma
Mr. Sharma points out that Centre-State relations are well-marked, defined and separated.

Federalism is India’s strength, part of the basic structure of the Constitution. Any attempt to redefine or revisit would disturb the Centre and State relations, he says.

Functional disharmony among Constitutional authorities has no space in our democracy as it would erode our own strengths.

Withholding of State Bills by Governors creates conflict. Governor’s office cannot be used to nullify the will of the people which is supreme, he says.

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The proposal to summon Parliament starts with Parliamentary Affairs Minister: Sharma
Even the proposal to summon the Parliament starts with the Parliamentary Affairs Minister. The PM confirms and formally informs the Speaker, who through the Secretary General, forwards it to the President, Mr. Sharma explains.

Same for the Governor at the State level. So, even to summon the Parliament/State Assembly, the President or Governors are bound by the aid and advice of the Council of Ministers, he says.

Governors don’t have any role in lawmaking: Anand Sharma
Mr. Sharma says discretion of President or Governors does not exist.

President or Governors have no role in lawmaking. Even when they come to the Parliament/State Assembly, they do not preside, they only address, he says.

Anand Sharma back in the courtroom
Advocate Anand Sharma, who is also a former Union Minister is appearing for Himachal Pradesh.

Mr. Sharma says he finds it a great honour to be back in the Supreme Court as a lawyer after several years.

The CJI, light-heartedly, says he should have been like Mr. Singhvi, Mr. Sibal or Mr. Wilson – all of them are MPs too.

Mr. Sharma replies he did not have their wisdom and wanted to focus on lawmaking.

Subramanium pauses his submissions.
Mr. Subramanium pauses his submissions. Requests the Bench to give Anand Sharma, appearing for Himachal Pradesh, opportunity to place his submissions.

Mr. Subramanium says his submissions for Karnataka would continue on Tuesday.

SC had said there can’t be dyarchy: Karnataka
Mr. Subramanium quotes SC’s seven-judge Bench judgment in Shamsher Singh case, which held that there cannot be a dyarchy (Governor and State government) in a State.

President and Governors have to act under the aid and advice of the State government. Governance cannot happen in a constant state of conflict or threat of conflict, he says.

‘Governor can exercise discretionary powers only in two instances’
In parliamentary form of democracy, the aid and advice of the Cabinet is central. That is why Governor has discretion only in two situations – when he gives a report to the President under Article 356 and when he refers, under the second proviso of Article 200, a State Bill which derogates from the powers of the High Court and endangers its position under the Constitution, says Mr. Subramium

‘The argument of the Union of India that President and Governor have discretion is fundamentally flawed’
The argument of the Union of India that President and Governor have discretion is fundamentally flawed, says Gopal Subramanium

The Cabinet is collectively responsible to the Legislature in a Cabinet form of government. The Governor is outside the Cabinet. The Governor is not in any way responsible to the Legislature. The Governor is only responsible to the Constitution, his oath of office and to the courts, says Mr. Subramanium

Governor has executive power, but has no legislative power: Karnataka
Mr. Subramanium continues:

Governor has executive power, but has no legislative power. Functions calling for his discretion are specifically mentioned in the Constitution. The instances when a Governor refers to President is also mentioned in the Constitution. So this argument by the Centre that High constitutional authorities enjoying plenitude of powers is completely anathema to the the Constitution.

On President’s descretion
In Article 103, in case of procedure for disqualification of MPs, President is bound by the advice of the ECI. If the President wants advice regarding judiciary like the age of a HC judge under 217(3), she consults the CJI and acts independently of the advice of the Cabinet. These are only two exceptions for the Presidents, Mr. Subramanium says.

True executive power resides in the Union/State Cabinets: Karnataka
True executive power resides in the Union/State Cabinet, says Mr. Subramanium.

Dr. Ambedkar, in a 1949 speech, said both the Central and State Cabinet are meant to be treated equally, he recalls.

Cabinet form of government is collectively responsible to the legislature. This form of government would be violated if the Governor or President is endowed with any form of discretion.

Any discretion is indicated, it has to be found in the text of the Constitution, he says, adding: for example, the President, after the 44th Constitutional Amendment, through the first proviso of Article 74(1) can remit a matter to the Parliament for reconsideration.

But after reconsideration, the advice is binding on the President, he says.

‘Consistent position in law, since 1954, is that President and Governor are titular heads’
Senior advocate Gopal Subramanium, who presents for Karnataka, says the Reference seriously entrenches upon one of the most acknowledged, consistent and coherent principles of the Constitution, that is, the democratic organ which enjoys executive power is the Cabinet form of government.

If the Cabinet form of government is the quintessence of parliamentary democracy, then one has to discover what is the role of the President and the Governor. If this is not clear, the questions to A. 200 cannot be answered.

Gopal Subramanium says the consistent position in law, since 1954, is that the President and the Governor are titular heads.

‘Withholding is a bogey, an anachronism, to ensure that State Bills don’t become laws’
There is a constitutional provided solution in case of repugnance. Withholding is a bogey, an anachronism, to ensure that State Bills don’t become laws, says Mr. Sibal.

The Executive cannot become an impediment to the will of the people, he once agains says.

Justice Surya Kant agrees Article 254(2) is a second filter. If a mistake is made by the State legislature, it is dealt with by the Parliament later, the judge notes.

Governor forthwith takes a decision or, if the Bill is referred to President, the Union govt forthwith takes a call on it, Mr. Sibal says.

‘A repugnant State law can be neutralised by a parliamentary law. Governor need not withhold it’
Kapil Sibal refers to the proviso of Article 254(2) of the Constitution.

It allows Parliament to make a law “adding to, amending, varying or repealing the law so made by the Legislature of the State”.

So a repugnant State law can be neutralised by a parliamentary law. There is no need to withhold State Bills indefinitely, he says.

Justice Nath counters “but prevention is better than cure, no?”

A law cannot be branded impossible by an executive in a Constitutional regime: Sibal
‘As soon as possible’ means forthwith and not making a Bill impossible to become law, argues Mr. Sibal.

A law cannot be branded impossible by an executive in a Constitutional regime, he says.

Not even three months, forthwith. There is an immediate to realise the will of the people. It is a sovereign act of the legislature, he says.

If the Governors become impediments, subject proposed laws to their whims and fancies, alternative systems have to be found, he says.

‘Delay leads to litigation’
Delay leads to litigation, and the will of the people is not the realised, says Mr. Sibal and adds, it may be good for the Bar but not for the country.

In the first proviso of Article 200, where does it say in the text that a re-passed Bill cannot be referred to the President by a Governor, Justice Narasimha asks.

The language of the proviso is clear that Governor cannot withhold assent to a re-passed Bill, says Mr. Sibal.

Governor has to assent to the Bill: Bengal
Mr. Sibal reiterates the Governor/President has to assent to the Bill.

When it turns to law, it may be challenged in court. Otherwise, the Executive in the guise of the President/Governors could thwart the will of the people, personified in the Bill, he argues.

Are you saying Constitution compels that Bills need to be assented? Bench to Sibal
Are you saying Constitution compels that Bills need to be assented? Justice Narasimha asks.

Are you saying Constitution did not contemplated a situation wherein legislature passes a Bill, and it is not given assent to, he further asks.

The Constitution does not specifically say this. So, you want us to supply these words and say the President/Governor is bound to assent for the sake of federalism, Constitutional ethos, etc., Justice Narasimha to Mr. Sibal.

‘If the Centre assumes that Governors will act with integrity, the same courtesy should be extended by the Union government to State Legislatures too’
If his power to withhold under Article 200 is absolute, then a Governor can withhold assent to Money Bills. Absolute power, hence, is not the scheme of the Constitution in Article 200, argues Mr. Sibal.

If the Centre assumes that Governors will act with integrity, the same courtesy should be extended by the Union government to State Legislatures too, he says.

‘Forthwith’ must apply to Governors and President, who is actually the Union govt, while dealing with grant of assent to proposed laws. Bills cannot wait, he says.

Satisfaction of the Governor is irrelevant in Article 200: Sibal
Article 356 arguments made by the Centre does not apply to gubernatorial assent under Article 200.

In Article 356, the Governor’s “satisfaction” of breakdown of constitutional machinery is a factor. In 200, the satisfaction of the Governor is irrelevant. Either you (Governor) comply with and assent to a Bill or refer it to the President, he says.

To assent, withhold or refer are not discretionary choices of Governors, but constitutional routes, he adds.

Informal interactions
When a law is contemplated, the CM goes to the Governor and have an informal interaction. That is when they iron out any differences. This is a pre-legislative process provided in Articles 158 and 167.

Later on, once the Bill is passed and forwarded to the Governor, the assent is expected to be given, says Mr. Sibal.

He refers how Prime Minister meets the President after a foreign trip or before a policy decision. “It is to have an informal interaction to brief the President and apprise her of what the government may have in mind,” he says.
Governors’ discretion must be conferred by the Constitution: Sibal
Governors’ discretion must be conferred by the Constitution, argues Mr. Sibal.

Constitutional provision must specify discretion. Otherwise, Governor must act on the aid and advice of the Cabinet, he says.

Maybe not three months, but time limit should be fixed: Sibal
It may not be three months, but Governor cannot withhold endlessly. The court has to say this. You have to find a solution not over a cup of coffee but through correct constitutional interpretation, says Mr. Sibal.

Mr. Sibal refers to ‘Cup of coffee’ remark from the Centre’s submission. Solicitor General Tushar Mehta had argued that only political solutions and not judicial orders can resolve the problem of gubernatorial delay.

Governors withhold to create conflict: Kapil Sibal
Let us not fall into a trap in which the Governor becomes an impediment to the working of the Constitution, says Mr. Sibal.

Sibal irked over counsels leaving in the middle of hearing
If counsels do not sit till the end of hearing, they should heard at last, says Mr. Sibal when he sees advocates walking out.

You have done it too, points out the CJI.

Only to seek adjournment, says Sibal

Let’s not interpret the Constitution to make it unworkable: Sibal
Here is Mr. Sibal’s hypothetical situation. Suppose a Bill is passed and sent for assent, the Governor withholds it, the legislature passes it again, and he withholds it again. This can be a never ending cycle. “Let us not interpret the constitution to make it unworkable,” Mr. Sibal.

They say under 361, court cannot issue mandamus.. Governor cannot file affidavits and if he wants he will appear. So language does not matter objective matters, he says.

The curious case of Nebam Rebia and Kalyan Singh
For the first time in the history of this court that a dismissed Government was put back through a mandamus, Mr. Sibal says, recalling the Nebam Rebia case. He recalls the judges ruled because the Governor’s action was found completely unconstitutional.

Justice Nath reminds him about Kalyan Singh case.

The concept of discretion is alien to Article 200: Sibal
Senior advocate Kapil Sibal appearing for West Bengal, says the discretionary power for the Governor does not apply while deciding on Bill.s The concept is alien to Article 200, he says.

He points out that the arguments made by the Solicitor General in this case was earlier rejected by three counsels earlier.

Reference to President by Governors are rare, says Kapil Sibal
There is a presumption of constitutionality given to Bills. Reference to President by Governors are rare, says senior advocate Kapil Sibal, who represents West Bengal.

Legislature is not primarily concerned with constitutionality. The test of constitutionality will arise once the Bill becomes a law. The citizens will challenge the constitutionality of a law in court on varying grounds, including violation of fundamental rights, he adds.

What is a Presidential reference? | Explained
The advisory jurisdiction of the Supreme Court under Article 143 is a relic of the Government of India Act, 1935. It vested the Governor-General with discretionary power to refer any question of law of public importance to the federal court for its opinion.

A similar provision is available in the Canadian constitution. This mechanism allows the Supreme Court of Canada to offer opinions on legal questions referred to it by the federal or provincial governments. The U.S. Supreme Court on the other hand has consistently declined to provide any advisory opinion to the executive as it would violate the strict separation of powers envisaged in its constitution.

What is a Presidential reference? | Explained
President Droupadi Murmu seeks Supreme Court opinion under Article 143, sparking debate on advisory jurisdiction and constitutional interpretation.

Governors cannot sit over Bills endlessly, say Supreme Court judges
Three of the five judges on the Presidential Reference Bench on Tuesday (September 2, 2025) orally observed, along with the States of Tamil Nadu and West Bengal, that Governors cannot sit endlessly over Bills placed before them for assent.

Chief Justice of India B.R. Gavai, Justices Vikram Nath and P.S. Narasimha separately remarked that Governors could neither delay the wisdom of the legislature indefinitely nor impede the functioning of the Constitution. “No organ can impair the functioning of the Constitution,” Justice Narasimha said.

Governors cannot sit over Bills endlessly, say Supreme Court judges
Judges and states argue Governors cannot indefinitely delay Bills, emphasising the urgency of legislative assent.