Introduction
The office of the Governor in India occupies a constitutionally delicate position, straddling the line between a ceremonial head of the State and a link between the Union and the State. Recent judicial scrutiny of gubernatorial conduct—specifically the prolonged withholding of assent to bills duly passed by State legislatures—has once again placed the spotlight on the constitutional boundaries of gubernatorial discretion.
In its latest pronouncement, the Supreme Court of India reaffirmed that the Governor cannot sit indefinitely on bills passed by the legislature and that such inaction is subject to judicial review. Furthermore, invoking the extraordinary jurisdiction under Article 142, the Court deemed assent to certain bills that had been repassed by the legislature, thereby ensuring legislative continuity.
While the decision fortifies the principles of constitutional accountability and federal balance, it also raises concerns about the judiciary’s encroachment into the executive domain, implicating the doctrine of separation of powers.
Constitutional Position of the Governor
Under Article 153, each State shall have a Governor appointed by the President. The Governor’s powers, delineated in Articles 154–162, are to be exercised either directly or through subordinate officers, but crucially, under Article 163, these powers are exercised on the aid and advice of the Council of Ministers, except where the Constitution expressly provides otherwise.
The Governor’s role in the legislative process is defined by Article 200, which grants four options upon presentation of a bill:
- To grant assent,
- To withhold assent,
- To reserve the bill for the President’s consideration, or
- To return the bill (if not a Money Bill) to the Legislature for reconsideration.
Notably, once a bill is repassed by the legislature without amendment, the Governor is constitutionally bound to grant assent. Any deviation from this mandate amounts to a constitutional impropriety.
The framers of the Constitution envisioned the Governor as a constitutional head, not an independent authority. This understanding was solidified in Shamsher Singh v. State of Punjab [(1974) 2 SCC 831], where a seven-judge Bench held that the Governor, like the President, must act on the aid and advice of the Council of Ministers, save in matters explicitly requiring discretion.
Limiting the Scope of Gubernatorial Discretion
The Supreme Court, in its recent decision, reaffirmed the constitutional boundaries of the Governor’s discretion. It observed that the indefinite withholding of assent effectively nullifies the legislative process and offends the democratic mandate of the elected legislature.
In Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1], the Court held that the Governor does not enjoy “general discretionary powers” and must act within the limits prescribed by the Constitution. The exercise of discretion must be guided by constitutional morality, not political expediency.
Thus, when the Governor delays or declines assent without valid constitutional justification, such action—or inaction—becomes justiciable. The Court’s ruling consequently “checks” the misuse of gubernatorial discretion and ensures that the Governor cannot function as a political overseer of the State Government.
Judicial Review of Gubernatorial Inaction
Judicial review forms a basic feature of the Constitution, as affirmed in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]. The Supreme Court has repeatedly emphasised that no constitutional authority is immune from judicial scrutiny if its action (or inaction) violates constitutional mandates.
Applying this principle, the Court held that gubernatorial silence or delay in granting assent is not beyond judicial review. Inaction, when it subverts legislative functioning, is antithetical to the principle of responsible government.
The Court thereby expanded the scope of judicial review to encompass not only positive acts but also omissions by constitutional authorities that undermine the Constitution’s functional integrity. This interpretive stance echoes the dictum in State of Rajasthan v. Union of India [(1977) 3 SCC 592], where the Court held that judicial review is available where the exercise of constitutional power is mala fide or perverse.
By recognising inaction as reviewable, the Court reinforced the principle that constitutional offices are held in trust, and the holders of such offices must discharge their duties with constitutional fidelity.
Article 142: “Complete Justice” as a Constitutional Corrective
The Court’s invocation of Article 142 was both unprecedented and contentious. Article 142(1) empowers the Supreme Court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.”
In the present case, the Court deemed certain bills to have received assent, reasoning that all ordinary constitutional remedies had been exhausted, and continued inaction posed a grave threat to the functioning of the legislature. This exercise of Article 142 is reminiscent of its use in Union Carbide Corporation v. Union of India [(1991) 4 SCC 584] and Supreme Court Bar Association v. Union of India [(1998) 4 SCC 409], where the Court clarified that Article 142, though plenary in scope, must be exercised to supplement—not supplant—constitutional provisions.
The Court justified this extraordinary measure as a “last-resort remedy”, intended to restore constitutional equilibrium rather than to legislate or execute. Nonetheless, this act blurs the institutional boundary between judicial adjudication and executive assent, raising legitimate concerns about the limits of judicial authority.
Federalism and Centre–State Relations
The judgment also bears upon the federal character of the Indian polity, which, as held in S.R. Bommai v. Union of India [(1994) 3 SCC 1], forms part of the basic structure of the Constitution. The Governor, though nominally a State authority, is appointed under Article 155 by the President and functions at the pleasure of the President (Article 156).
This structural dependency often results in the Governor being perceived as an agent of the Centre, particularly in politically sensitive situations. Instances of Governors withholding assent to bills passed by opposition-ruled States—such as in Tamil Nadu, Kerala, Punjab, and Telangana—have triggered concerns about partisan misuse of gubernatorial power.
The Court’s ruling, therefore, reinforces that constitutional federalism cannot coexist with political obstructionism. By subjecting gubernatorial conduct to judicial review, the Court sought to preserve the functional autonomy of the States within the constitutional framework of cooperative federalism.
Separation of Powers and the Charge of Judicial Overreach
The Court’s decision, however, reignites the enduring debate on judicial overreach and the doctrine of separation of powers. Rooted in Articles 50, 121, and 211, this doctrine mandates that each organ of the State—legislature, executive, and judiciary—confine itself within constitutionally defined limits.
Critics argue that by deeming assent, the Supreme Court effectively performed an executive function, thereby encroaching upon the Governor’s constitutional prerogative. Such judicial substitution of executive will, it is argued, contravenes the principle articulated in Asif Hameed v. State of J&K [(1989) Supp (2) SCC 364]—that the Court’s role is to interpret and not to legislate or execute.
Proponents, however, contend that the judiciary’s intervention was constitutionally necessary to prevent a breakdown of governance and uphold constitutional supremacy. As the Court itself noted in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], judicial review exists to preserve the Constitution from erosion, even by constitutional authorities. From this standpoint, the ruling represents judicial pragmatism, not overreach.
Conclusion
The Supreme Court’s ruling on gubernatorial discretion constitutes a significant reaffirmation of constitutional accountability and functional federalism. By delineating the boundaries of the Governor’s powers, recognising the justiciability of inaction, and invoking Article 142 to ensure legislative continuity, the Court has preserved the spirit of responsible government enshrined in the Constitution.
Yet, the judgment simultaneously underscores the fragile balance between judicial activism and judicial restraint. The legitimacy of judicial innovation must ultimately rest on its constitutional necessity, not its expedience.
In the final analysis, the decision reinforces the foundational principle that no constitutional authority is above accountability, and that the vitality of Indian democracy depends upon each organ acting within its constitutional orbit, guided by constitutional morality and the rule of law.
Key Cases Cited:
- Shamsher Singh v. State of Punjab, (1974) 2 SCC 831
- Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1
- S.R. Bommai v. Union of India, (1994) 3 SCC 1
- L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
- State of Rajasthan v. Union of India, (1977) 3 SCC 592
- Union Carbide Corporation v. Union of India, (1991) 4 SCC 584
- Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409
- Asif Hameed v. State of J&K, (1989) Supp (2) SCC 364
- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225