Governors, Assent, and Constitutional Retrogression: Supreme Court’s Mixed Signals on Federalism

Introduction

In April 2025, the Supreme Court of India delivered a landmark judgment in State of Tamil Nadu vs Governor of Tamil Nadu, attempting to curb the long-standing problem of unelected Governors indefinitely delaying assent to Bills passed by elected State legislatures. By prescribing definitive timelines and recognising the possibility of judicially deeming assent in cases of unexplained inaction, the Court appeared to restore legislative supremacy and cooperative federalism.

However, within months, the promise of this democracy-affirming verdict has been significantly diluted. In Special Reference No. 1 of 2025, responding to a Presidential Reference, a Constitution Bench of the Supreme Court has questioned the constitutional basis of such timelines and rejected the idea of deemed assent. Though advisory in nature, this opinion has far-reaching persuasive authority, effectively reopening the door for gubernatorial obstruction.

This episode reflects a deeper constitutional tension between federal autonomy and central dominance, and raises troubling questions about accountability in India’s parliamentary democracy.

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Background: The Problem of Gubernatorial Inaction

Article 200 of the Constitution grants Governors the power to:

• Assent to a Bill

• Withhold assent

• Return a non-Money Bill for reconsideration

• Reserve a Bill for the President’s consideration

Over the years, Opposition-ruled States have repeatedly alleged that Governors, acting as political agents of the Union, have misused these powers by:

• Sitting indefinitely on Bills

• Repeatedly returning Bills without substantive reasons

• Referring even routine Bills to the President

This practice resulted in policy paralysis, erosion of State autonomy, and a breakdown of constitutional conventions.

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State of Tamil Nadu (2025): A Course Correction

The April 2025 judgment sought to remedy this malaise by:

• Imposing timelines for Governors to act on Bills

• Holding that prolonged silence is constitutionally impermissible

• Allowing courts to treat unexplained inaction as deemed assent

• Reinforcing the idea that Governors are not parallel veto-wielding authorities

For States, this judgment was a rare judicial affirmation of democratic accountability, restoring balance in Centre–State relations.

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Special Reference No. 1 of 2025: Rolling Back the Discipline

The optimism proved short-lived.

In responding to the Presidential Reference, the Supreme Court held that:

• Judicially imposed timelines have no textual basis in the Constitution

• Deemed assent is alien to the constitutional scheme

• Governors’ and President’s discretionary powers possess “elasticity”, permitting delays

• Courts can at best direct the Governor to decide, not substitute their decision

Though the former CJI clarified that an advisory opinion does not formally overrule a judgment, the constitutional authority of a Constitution Bench’s interpretation cannot be understated.

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The Myth of “Constitutional Dialogue”

The Court conceptualises Article 200 as enabling a “constitutional dialogue” between the Governor and the legislature. However, this analogy falters for a simple reason:

Dialogue requires timely and meaningful response from both sides.

The real grievance against Governors was not disagreement, but strategic silence. The Tamil Nadu judgment addressed this by:

• Making prolonged inaction untenable

• Preventing repeated obstruction once the dialogue had occurred

The Reference judgment, by contrast:

• Treats silence with kid-glove indulgence

• Reduces judicial remedies to mere nudges, not enforcement

• Allows Governors to effectively stall Bills without consequences

This transforms dialogue into a one-sided monologue, dominated by Raj Bhavan.

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Article 200 and the Undermining of Constitutional Text

The First Proviso: Clear Yet Diluted

The first proviso to Article 200 states that when a Bill is returned and subsequently re-passed by the legislature, the Governor “shall not withhold assent”.

The April judgment respected this textual clarity.

However, the Special Reference opinion:

• Allows Governors to refer even reconsidered Bills to the President

• Treats referral as an open-ended discretion, not an exception

This interpretation:

• Negates the binding force of legislative reiteration

• Creates a constitutional black hole where Bills can silently die

• Contradicts the plain language of the Constitution

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Indirect Obstruction, Direct Consequences

A basic constitutional principle holds that what cannot be done directly cannot be done indirectly.

Yet the Reference judgment permits exactly this:

• While condemning indefinite inaction,

• It legitimises unfettered referrals to the President, even after re-enactment

Thus, Governors are barred from openly blocking Bills, but are enabled to frustrate them procedurally.

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Misplaced Reliance on ‘Checks and Balances’

The Court invokes checks and balances to justify expansive gubernatorial discretion, arguing that:

• Legislatures may pass unconstitutional or repugnant laws

This reasoning is flawed because:

• Judicial review already exists to test constitutionality

• Courts can strike down laws; denial of assent has no comparable remedy

• Assent is a procedural step, not a quasi-judicial safeguard

Elevating the Governor’s role to that of a constitutional gatekeeper risks turning a balance into a veto.

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Implications for Federalism and Democracy

Federalism

• Strengthens Union dominance over States

• Weakens cooperative federalism

• Reinforces the perception of Governors as central overseers

Democratic Accountability

• Unelected functionaries gain power over elected legislatures

• Legislative mandates can be neutralised without explanation

Governance

• Encourages policy paralysis

• Undermines constitutional conventions and trust

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UPSC Relevance

Prelims

• Article 200 and Governor’s powers

• Difference between judgment and advisory opinion (Article 143)

Mains (GS II)

• Role of Governor in India’s federal structure

• Judicial interpretation and constitutional morality

• Centre–State relations and misuse of constitutional offices

Essay

• “Federalism in India: Text vs Practice”

• “Constitutional offices and democratic accountability”

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Conclusion

The Supreme Court’s April 2025 verdict marked a progressive moment, reaffirming legislative supremacy and restraining gubernatorial excess. The subsequent advisory opinion in Special Reference No. 1 of 2025, however, represents a constitutional retreat — undoing hard-won clarity and re-legitimising ambiguity.

In privileging discretion over discipline, and dialogue over decisiveness, the Court risks enabling the very dysfunction it once sought to cure. For Indian federalism, this episode is not merely a legal debate — it is a reminder that constitutional silence, when weaponised, can be as destructive as constitutional overreach.