India’s constitutional design rests on the primacy of elected legislatures. Yet, repeated instances of Governors indefinitely delaying assent to state Bills have reopened a fundamental question: how much discretion does an unelected Governor really have? A recent Supreme Court advisory opinion has reignited this debate, with significant implications for federalism and democratic accountability.
What triggered the latest constitutional dispute?
The immediate controversy arose from Tamil Nadu, where Governor R N Ravi had kept several Bills passed by the State Assembly pending for years. Frustrated by this inaction, Chief Minister M K Stalin approached the Supreme Court.
In April, a two-judge Bench ruled that Governors must ordinarily act on Bills within three months, failing which assent could be deemed. This judgment was seen as a corrective to prolonged gubernatorial inaction.
However, the President sought the Supreme Court’s advisory opinion under Article 143, asking whether courts could prescribe timelines for Governors (and the President) to act on Bills. On November 20, a five-judge Bench unanimously held that courts cannot impose such timelines.
What did the Supreme Court advisory opinion say?
The advisory opinion clarified the constitutional choices available to a Governor under Article 200:
- Assent to the Bill,
- Reserve the Bill for the President’s consideration, or
- Withhold assent and return the Bill to the Legislature with comments.
On the critical issue of delay, the Court stated that in cases of “prolonged, unexplained, and indefinite” inaction, courts may issue a limited mandamus directing the Governor to act within a “reasonable time”.
However, the opinion did not define what constitutes “prolonged” delay or what qualifies as a “reasonable time”. This ambiguity leaves unresolved situations such as Bills pending for several years, including one in West Bengal reportedly awaiting assent for nearly nine years.
Why does the advisory opinion raise concerns?
While the advisory opinion is not binding, it has drawn criticism for failing to resolve the core problem. By refusing to prescribe even indicative timelines, the Court effectively leaves Governors with wide latitude to delay legislation without clear consequences.
More importantly, the opinion appears to elevate the Governor’s role far beyond what the framers of the Constitution intended. In practice, it risks enabling an unelected constitutional head to stall the will of an elected legislature, often in Opposition-ruled states, raising questions of partisan misuse.
What did the Constituent Assembly envision for Governors?
Debates in the Constituent Assembly, particularly on May 31, 1949, provide valuable insight into the intended role of Governors. B R Ambedkar, Chairman of the Drafting Committee, made it clear that the Governor was not meant to exercise independent discretion.
He emphasised that under the new Constitution, the Governor was expected to act on the aid and advice of the Council of Ministers “in all matters”, describing the office as limited, nominal, and largely ornamental.
This understanding also shaped the decision to make Governors nominated rather than elected, since the office was not meant to wield substantive political power.
How far has practice drifted from constitutional intent?
The current practice marks a significant departure from the framers’ vision. Governors today often act as veto points in the legislative process, delaying or blocking Bills without clear constitutional justification.
Such conduct sits uneasily with the Westminster model of parliamentary democracy, where executive authority flows from the elected legislature. Allowing a nominated Governor to indefinitely stall legislation undermines both democratic principles and the spirit of federalism.
Why does this matter for Indian federalism?
The selective use of gubernatorial delay, largely affecting Opposition-ruled states, deepens Centre–State friction. It reinforces perceptions of Governors as political agents rather than neutral constitutional heads.
If unchecked, this trend risks transforming the Governor from a ceremonial link between the Union and the State into a powerful, unaccountable actor capable of distorting legislative processes.
What lies ahead?
Given that advisory opinions under Article 143 are not binding, the issue remains open. Either Parliament or the Supreme Court, in an appropriate adversarial case, could still clarify the scope and limits of gubernatorial discretion.
A clearer constitutional convention — if not a statutory framework — defining timelines and consequences for inaction may be essential to restore balance between constitutional offices and democratic institutions.
What to note for Prelims?
- Article 200: Governor’s options regarding State Bills.
- Article 143: Advisory jurisdiction of the Supreme Court.
- Difference between binding judgments and advisory opinions.
- Concept of “aid and advice” in a parliamentary system.
What to note for Mains?
- Critical analysis of the Governor’s role in India’s federal structure.
- Tension between constitutional text, judicial interpretation, and constitutional morality.
- Impact of gubernatorial discretion on democratic accountability.
- Use of Constituent Assembly debates in constitutional interpretation.
