CJI asks if Governors can hold elected governments hostage by stalling Bills

The Supreme Court on August 20 questioned whether an elected government can be left at “the whims and fancies of the Governor” if the power to withhold assent to a Bill is interpreted as absolute and indefinite.

Chief Justice of India B R Gavai, heading a five-judge Constitution Bench, asked Solicitor General Tushar Mehta whether such an interpretation would not reduce a government chosen by the majority into a hostage of gubernatorial discretion. “Would we not be giving total powers to the Governor to sit in appeal over the legislature? The government elected by the majority will then be at the whims and fancies of the Governor,” the CJI observed.

The bench, also comprising Justices Surya Kant, Vikram Nath, P S Narasimha, and A S Chandurkar, is hearing a Presidential reference on timelines for Governors and the President to act on Bills passed by state legislatures.

Governor’s powers under Article 200 under the scanner

Defending the Governor’s authority, Mehta argued that the office “is not an asylum for retired politicians” but carries constitutional sanctity as a representative of the President. The Governor, he said, is “not just a postman” and possesses discretion to assent, withhold, refer to the President, or return a Bill for reconsideration.

He maintained that withholding assent is not temporary. “The Bill falls through,” he said, insisting the power must be exercised rarely but firmly. To illustrate, he cited the example of a border state attempting to legislate on foreign affairs, arguing the Governor would then be compelled to withhold assent.

But the bench pushed back, warning that construing “withhold” as final would “be counterproductive to the Governor’s power and to the legislative process itself.” Justice Narasimha noted that the political process must remain open-ended to resolve deadlocks: “Even if a Governor initially withholds, he can later reconsider. To say the matter ends at the first refusal is untenable.”

Balancing constitutional design with democratic mandate

The judges acknowledged India’s federal system had witnessed repeated disputes over Governors’ discretion. CJI Gavai remarked, “We have some experience of how certain Governors have exercised their discretion, leading to litigation. But we are not going by that.”

Mehta countered that India’s democracy remains “mature and resilient,” citing the cooperative federalism on display during the Covid-19 crisis. “There may be aberrations at an individual level,” he said, “but the system as a whole has worked effectively.”

The court will continue to weigh whether Article 200 permits indefinite withholding of a Bill—or whether doing so risks undermining both the constitutional balance and the people’s mandate.