THE CONTEXT: The current advisory reference by President Droupadi Murmu under Article 143(1) of the Constitution re-opens an old debate at the fault-line of separation of powers and co-operative federalism. At the heart of the controversy lies a two-judge Bench ruling of 8 April 2025 that (i) quashed Tamil Nadu Governor R. N. Ravi’s “withhold assent” order on ten re-enacted Bills and (ii) introduced outer limits of one to three months for Governors and the President to complete the assent cycle.
Five weeks later, the President’s 14-question reference seeks clarity on the constitutional propriety of those timelines, the breadth of Article 142 powers, and the justiciability of gubernatorial and presidential discretion.
CONSTITUTIONAL & JURISPRUDENTIAL FRAMEWORK
| Provision | Core content | Key case-law milestones* |
|---|---|---|
| Article 200 (Governor’s options) | Assent, return (once), reserve for President, or withhold assent. | Purushothaman Nambudiri (1962); Nabam Rebia (2016) clarified “aid and advice”. |
| Article 201 (President on reserved Bills) | Assent or return; no express timeline. | 8 April 2025 TN verdict introduced a three-month outer limit. |
| Article 143 (1) | President may seek Supreme Court (SC) opinion on any question of law or fact of public importance; opinion is advisory and non-binding. | In re Cauvery Tribunal (1993); Special Courts Bill (1979). |
| Article 142 | Enables SC to “do complete justice”. | Expanded repeatedly—from Union Carbide (1991) to the 2025 TN decision. |
| Article 361 | Immunity of President/Governor from court proceedings; does not bar judicial review of their acts. | Rameshwar Prasad (2006); B.P. Singhal (2010). |
EMPIRICAL PICTURE: HOW SERIOUS ARE THE DELAYS?
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- PRS Legislative Research shows 18 percent of the 500-plus Bills passed by state legislatures in 2024 waited over three months for final clearance; in Himachal Pradesh the figure was 72 percent.
- In Kerala, eight university amendment Bills lay pending for more than a year until litigation nudged action.
- Comparative data from Australia and Canada show royal assent is largely perfunctory—typically within days—under Section 58 of the Australian Constitution and Canada’s Letters Patent.
WHAT DO EXPERT COMMISSIONS SAY?
| Body | Year | Recommendation |
|---|---|---|
| Sarkaria Commission | 1988 | Governors should ordinarily decide within six weeks; reservation for the President only on constitutionality doubts. |
| Punchhi Commission | 2010 | Stipulate a three-month limit; “deemed assent” if no decision. |
| Constitution Review Commission (Justice Venkatachaliah) | 2002 | Bind Governors to Cabinet advice except on very narrow discretionary heads; suggested a statutory code. |
COMPARATIVE FEDERAL PERSPECTIVES
| Federation | Mechanism |
|---|---|
| Australia | Governor-General may return Bills once; if Parliament re-passes the Bill, assent is compulsory. One-year “lapse” rule applies. |
| Canada | Royal assent now almost automatic; refusal last exercised in 1937. |
| South Africa | President may refer a Bill back or to the Constitutional Court, but must act within 30 days, ensuring time-bound resolution. |
The contrast underscores that India is a global outlier in allowing open-ended discretion.
KEY CONSTITUTIONAL-POLICY QUESTIONS RAISED BY THE REFERENCE
1. Is timelines-by-judicial-fiat compatible with “basic structure”?
The SC has previously used Article 142 to fill statutory voids (e.g., coal block cancellation, river-linking). The April 8 order extends that logic into the constitutional arena.
2. Does Article 361 create an absolute bar?
Jurisprudence distinguishes personal immunity from review of acts; hence, mandamus can issue to the Council of Ministers even if not to the President personally.
3. Can advisory jurisdiction be used to ‘review’ a two-judge verdict?
In the 1991 Cauvery opinion the SC warned that Article 143 cannot convert the Court into an appellate forum over itself.
GOVERNMENT’S POLICY OPTIONS:
IMMEDIATE ADMINISTRATIVE MEASURES
1. Cabinet Secretariat Protocol – Mandate that all reserved Bills be routed through the Ministry of Law & Justice within 15 days, tagged “urgent”, with digital tracking.
2. Public Dashboard – On the pattern of the National Judicial Data Grid, publish real-time status of Bills awaiting gubernatorial or presidential action.
MEDIUM-TERM LEGISLATIVE CORRECTIVES
1. “Assent Accountability Bill, 2025” – A Parliament-enacted framework law (under Article 246 read with the residuary entry) providing:
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- 60-day outer limit for Governors;
- 30-day limit for the President once a Bill is reserved;
- automatic deemed assent if deadlines lapse;
- ex-post legislative veto allowing Parliament to annul deemed Acts within six months, balancing federal and union interests.
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2. Model Rules of Business – Uniform guidelines for state secretariats to eliminate procedural lacunae exploited for delay.
LONG-TERM INSTITUTIONAL REFORMS
1. Constitutional Amendment (Twenty-ninth Amendment) – Insert an Explanation to Articles 200 and 201 codifying timelines, akin to Article 111 for the Union.
2. Re-imagining the Office of Governor – Adopt Punchhi Commission proposal for an “eminent persons panel” to short-list names, insulating appointments from partisanship and strengthening accountability through fixed tenure and performance audit.
3. Inter-State Council Revival – Use Article 263 to create a standing sub-committee on legislative federalism to pre-emptively resolve Centre–state disputes.
IDEAS FOR COOPERATIVE FEDERALISM:
| Idea | Rationale | Illustrative Precedent |
|---|---|---|
| Citizen Charter of Assent | Treat assent as a public-service guarantee; delays become information accessible under Right to Information Act. | Similar to time-bound services Acts in 21 states. |
| Automatic assent with post-legislative constitutional review | Mirrors “pocket-veto” prevention devices in the United States where Congress may repass a Bill. | U.S. Presentment Clause jurisprudence. |
THE WAY FORWARD FOR ALL STAKEHOLDERS
1. Supreme Court – Constitute a Constitution Bench at referral stage itself (Article 145 (3) proviso) to settle foundational questions and minimise fragmented precedents.
2. Union Executive – Issue an interim advisory to Governors emphasising the April 8 guidelines as a model code pending final adjudication, consistent with constitutional morality.
3. States – Improve drafting quality and pre-legislative scrutiny to avoid constitutionally vulnerable clauses that invite reservation.
4. Parliamentary Committees – Evaluate the feasibility of inserting a new Article 200A via amendment, institutionalising the timeline with an override clause.
THE CONCLUSION:
Judicially enforced timelines may look intrusive, yet they respond to a democratic vacuum created by recurring executive inaction. The ultimate equilibrium will lie in a shared compact where (i) Governors act as impartial constitutional umpires, (ii) the Union respects state autonomy, and (iii) the Supreme Court intervenes only to secure, not supplant, legislative intent.
UPSC PAST YEAR QUESTION:
Q. Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. (2020)
MAINS PRACTICE QUESTION:
Q. Discuss the scope and limitations of the Supreme Court’s advisory jurisdiction under Article 143 of the Indian Constitution. How does it differ from its adjudicatory powers?
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