Supreme Court Questions Centre: If Governors Don’t Act, Will Judiciary Be Powerless?
The apex court questioned whether it can act if governors delay bill assent, exploring judicial review limits, constitutional immunity, and political versus legal solutions
By Sumit Saxena
Published : August 21, 2025 at 7:55 PM IST
New Delhi: The Supreme Court on Thursday categorically asked the Centre: however high the constitutional authority (governor) may be, if it does not act, will this court be powerless? Could the hands of constitutional courts be tied if constitutional functionaries refuse to discharge their functions?
The apex court raised these questions while hearing submissions on the presidential reference, which raised constitutional questions about whether the court can impose timelines on the governors and the president to deal with Bills passed by state assemblies.
A five-judge led by Chief Justice of India B R Gavai and comprising justices Surya Kant, Vikram Nath, PS Narasimha, and AS Chandurkar, was hearing submissions made by solicitor general Tushar Mehta, who was representing the Centre.
In May, President Droupadi Murmu exercised powers under Article 143(1) to know from the top court whether timelines could be imposed by judicial orders for the exercise presidential discretion on Bills passed by assemblies.
The CJI made it clear to Mehta that the courts do not intend to micro-manage the government, and added, "We will never interfere... We cannot ask how a district is to be administered."
The bench said, suppose a particular function is entrusted to the governor, and he withholds his assent on the bills for years together; would that be beyond the power of judicial review?
The bench said that when this court has set aside the constitutional amendment itself for taking away the power of judicial review, no amendment should be beyond the question of this court, especially if it is found to violate the basic structure of the Constitution.
Mehta said his argument is not that the court is powerless; rather, his argument concerns justiciability.
“Whether assent is given or not, and the reasons for it -- we will not examine whether the president was justified in giving assent or why the governor gave assent. But suppose, if asked by a competent legislature, the governor only sits on the bills...” observed the CJI.
Governor is the most vulnerable office
Mehta said even if the governor sits on the bills, the solution does not lie here (in the court), and the solution lies in the political sphere, and such cases are solved through democratic process, and added, “there are certain problems which are not solvable by judiciary.”
The CJI asked if the governor is not answerable to anyone?
“Governor is the most vulnerable office; he can be removed without any formalities. The moment the chief minister goes to the prime minister or the president, the political process takes over, and the governor can be recalled," said Mehta.
Mehta said whenever something happens in the judiciary, the system takes care of it, and not every problem comes before the judiciary; your lordship takes decisions on the administrative side as well.
The bench asked, with regard to the procedure, where is the constitutional immunity (to the governor)? Mehta said there is no immunity.
Can the hands of a constitutional court be tied?
CJI asked Mehta, “If constitutional functionaries do not discharge their functions without any reason, can the hands of a constitutional court be tied?” Mehta said courts can’t be the solution for all the problems and in a democracy, primacy had to be given to dialogue.
Justice Kant further queried Mehta, “If there is any inaction on the part of governor, which can vary from state to state, and if an aggrieved state approaches the court, can the judicial review of such inaction be completely barred. Tell us what can be the solution?”
Mehta said, suppose a particular governor is sitting over the bill, then there are political solutions and such solutions are being pursued. "It is not everywhere the state is advised to rush to the apex court," he added.
“The chief minister goes and requests the prime minister. Chief minister goes and meets the president. There are delegations which go and talk to the governor regarding bills. Let him(governor) take a decision one way or the other… such impasse will be solved”, said Mehta, adding that would not confer jurisdiction to lay down a guideline by a judgment and that is the question.
If governor sits over bills for four years, what happens to democratic set up
The bench pointed out petitions have been filed by two or three state governments in connection with delay in governor’s assent on the bills. “Kerala, West Bengal, and Punjab...”, said the CJI.
The bench said it appreciates a time bound process for bills. If no decision is taken for four years, the CJI asked, "what happens to the democratic set up? What happens to the will of two-third of the majority of the legislature?” making it clear that the bench is only questioning the governor.
Mehta said, "I am giving an example of the president of India, when a citizen approaches him saying that his trial has been pending for 10 years, the sessions judge is not taking up the matter, and my offence is punishable with only 7 years of imprisonment while my husband is in jail. Can, inaction on the part of the judiciary empower the president to declare that he has already undergone the sentence? It may not be a comparable example, but this is how separation of power…”
The CJI asked, when the governor, for the time immemorial, does not even declare that he is withholding sanction, will this court be powerless in such a case?
The apex court will continue to hear the matter on August 22.
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