Closing argument: on the Presidential Reference to the top court

The Union government has missed an opportunity to put a lid on the prolonged controversy over the arbitrary and the undemocratic use of power by unelected Governors. A Supreme Court judgment on April 8, 2025 clarified the constitutional position over the powers of the Governor and the President in giving assent to Bills passed by State Assemblies. A Division Bench of Justices J.B. Pardiwala and R. Mahadevan held that Tamil Nadu Governor R.N. Ravi’s act of withholding 10 State Bills was “illegal” and “erroneous”. The well-reasoned judgment had outlined the possible courses of action for the Governor and the President once a Bill is before them for their assent, though the Constitution does not specify timelines. The judgment established long awaited and much required clarity on several questions. Now, the Centre, through a Presidential Reference, has brought up all these questions again to the Court, seeking its ‘opinion’ under Article 143. The power of Governors has been an extremely contentious question. The heightened brazenness of some Governors in recent years has created more bad blood between the Centre and the States, and undermined the mandate of States to govern. The Court’s judgment took into account multiple judgments, reports of committees that examined the working of Indian federalism, and Constituent Assembly debates to arrive at a firm conclusion that Governors or the President do not have arbitrary powers to indefinitely hold up a law made by an elected Assembly from coming into force.

Governors are whimsical appointees of the Centre, and the Constitution does not vest them with infinite powers, least of all to undermine the elected Assembly. The Centre could have used the Court’s judgment to bring a closure to the controversy once and for all. It could have, if it felt necessary, brought constitutional amendments in line with the Court’s judgment. Instead, the Centre is raking up questions that are already settled, through a presidential reference. As constitutional scholars have pointed out, an opinion given by the Court does not override the Court’s judgment. If it was only clarity that the Centre wanted, it could have sought it through a review petition and other established procedures. By choosing the unusual path of a Presidential Reference, the Centre is signalling an intent to seek for itself powers to be exercised through Governors, that the makers of the Constitution had not given it. The Court’s judgment provided a sound framework for a consensus on the role of the Governor. The Centre should accept that, and if at all required, convene a meeting of Chief Ministers and political party representatives, to resolve any other residual issues.