Why BJP-ruled states oppose a timeline for the President and governors

During the ongoing hearing on the presidential reference of bills — an issue referred to the Supreme Court for its opinion on 14 points of law, most of them arising from a division bench of the court prescribing time limits within which governors of states and the President must decide on bills sent to them after approval from the state legislature — the Chief Justice of India has posed several sharp questions.

A galaxy of lawyers representing the union government and BJP-ruled states have made their submissions against the April 2025 prescription of a timeline of response for the highest constitutional authorities on the executive side.

The CJI quoted Dr B.R. Ambedkar, saying that the states would function within their domain and the Centre within its own unless there is an internal emergency, and questioned whether governors, as representatives of the Centre, can sit on bills for an indefinite period. Responding to arguments that the judiciary cannot prescribe a timeline, the CJI wondered whether, if somebody sits on Bills from 2020 to 2025, the highest court of the land should sit powerless.

If the powers of the President, the governors' reports from the states can be judicially reviewed, if their collective decision to impose President’s Rule in states can be overturned by the courts, why cannot their conduct under Articles 200 and 201 be subject to judicial review, the CJI has asked.

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Conceding that the governor is a vital link between the central and the state governments, CJI Gavai also wondered whether the governor can use his discretion even after the state assembly reiterates a Bill and sends it back again for his assent.

On the very first day of the hearing, on 21 August, the CJI raised the issue of the people’s mandate enjoyed by an elected government. Suppose a legislature that is elected by a two-thirds majority unanimously passes a Bill… and suppose he (the governor of the state) doesn’t exercise his power to give it his assent and instead sends the bill back to the legislature with suggestions or refers it to the President, wouldn’t it make the legislature totally defunct, despite its popular mandate, he asked.

“Is the governor not answerable to anyone?... What then happens to the will of the two-thirds majority of the state?” he wondered.

Prescribing a timeline for the President and governors to decide on Bills passed by state legislatures was against the spirit of discretionary powers given to the constitutional authority, argued solicitor general Tushar Mehta and other lawyers representing the BJP-ruled states.

Mehta argued that “when the Governor sits over a Bill, for good reasons, bad reasons or no reason”, the political process takes over. The governor can be called back and state chief ministers can take it up with other constitutional authorities, he said. Till such time as the Constitution is amended and a timeline prescribed, the judiciary cannot impose a timeline, he argued — pointing out that no time limit is prescribed for completing trials either.

A division bench of justices J.B. Pardiwala and R. Mahadevan had held on 8 April 2025 that Tamil Nadu governor R.N. Ravi’s act of withholding assent to 10 bills was illegal and erroneous.

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The bench referred to multiple judgements, reports of committees that had examined the working of Indian federalism and Constituent Assembly debates to conclude that the governors and the President do not have arbitrary powers to indefinitely hold up a law made by an elected assembly — effectively, preventing it from coming into force by their sole discretion.

During the hearing, advocate Harish Salve, appearing for Maharashtra, argued that India is not a federal nation but a ‘constitutional construct resembling federalism’.

Does this mean the union government can reject a Bill passed by a state legislature, asked CJI Gavai.

Salve replied in the affirmative: “The entire exercise of trying to avoid a veto-like power overlooks that the language of Article 201 does not admit of any such limitation.”

Senior advocate Guru Krishnakumar, appearing for Haryana, argued that constitutional silences are meant to be obscure. “How long is ‘too long’ for the governor to have kept a Bill is not specified by the Constitution,” he said.

Senior advocate Vinay Navare, appearing for Puducherry, argued that the President and governors have the power and must have complete freedom and discretion to say ‘no’ to the legislature.

Senior advocate Mahesh Jethmalani, appearing for Chhattisgarh, told the court that withholding the Bill means rejecting the Bill.

Solicitor general Tushar Mehta intervened to point out that wherever the Constitution wanted time limits, it has specifically mentioned deadlines and included the ‘deemed assent’ clause. He referred to Article 198(5) of the Indian Constitution, for instance, which states that if a Money Bill passed by a state legislative assembly is not returned by the legislative council with its recommendations within 14 days, it is deemed to have been passed by both Houses of the assembly.

Most of these lawyers also argued that a substantial question of law such as this should have been decided by at least a five-judge bench in April 2025, and not by two judges.

The CJI more than once intervened to remind them that the presidential reference is not an appeal against the division bench’s judgement, which remains binding until the Supreme Court refines or modifies it, or till Parliament lays down the law.

And this is the tussle that must continue tomorrow...