The article is an edited excerpt from the judgment.
On certain subject matters prescribed in various provisions of the Constitution, and on subject matters falling in the Concurrent List, the Constitution has accorded primacy to the Centre over the States. On issues of repugnancy, for illustration, it is only on the approval of the President, that a State law which is repugnant to a Central legislation can become enforceable. No obligation is placed on the President to grant assent under Article 201 and it is to be decided by the President on the aid and advice of the Union Council for Ministers. It is in view of this position and for the limited extent of judicially manageable standards of evaluation that the assent under Article 201 has been described as non-justiciable.
However, the same is not the case when the courts have to consider the withholding of assent or reservation of bills by the Governor under Article 200. Our discussion on the scope of discretion available to the Governor makes it clear that the Governor exercises discretion in a very limited domain when discharging his functions under Article 200. He may reserve the bills for the consideration of the President only for achieving certain predetermined purposes and his personal views, disliking for the policy, or the views of the Union government are not grounds on which he may reserve a bill under Article 200.
The nature of constitutional function prescribed for the Governor under Article 200 being such, the exercise of such function can be subjected to judicial review on the standard of being within constitutional bounds. Reserving a bill for the consideration of the President is a part of the legislative procedure and must invariably be subjected to judicial review in cases where the constitutionally prescribed procedure is not complied with, or misused.
The discharge of functions by the President under Article 201 stands on a different footing than that of the Governor under Article 200. While there is no political hue to the limited discretion conferred upon the Governor under Article 200, and any exercise of such discretion has to be solely on constitutional grounds, the grant of assent under Article 201 has an element of political hue by virtue of the fact that the President under Article 201 has been given the prerogative to decide whether the grant of assent in certain cases would be desirable or not. However, at the same time, what must be remembered is that it is only in those areas where the primacy has been given to the Union would this political consideration be permissible.
Additionally, this political hue is not owing to the difference in opinion or political views of the governments at the Centre and the State but is attributable to the desirability of vesting the Union government to exercise certain discretion in matters pertaining to broader issues where uniformity in national policy may be desirable. In such a case, the scope of justiciability under Article 201 would be limited to questions of arbitrariness, malafides and inaction.
As a logical sequitur of the above, any exercise of Article 201 in a manner which does not align with this fundamental object underlying Article 201 would be liable to a greater degree of judicial scrutiny. Thus, wherever a bill which falls within the exclusive domain of the State legislature is being referred to the President for his consideration on the ground that it attracts one of the exceptional situations where the Governor may exercise his discretion as mentioned in paragraph 300 of this judgment, it would not be open to the President to withhold assent without ascribing reasons as regards the doubt raised by the Governor to such a bill.
In such a case, the ideal course for the President would be to obtain legal opinion as regards the bill, in appropriate cases, by making reference to this Court under Article 143, and only thereafter declare the grant or withholding of assent. Where the grounds of withholding of assent are not concerned with policy areas in which the Union has primacy, the courts would have a greater degree of judicial scrutiny. We say this because on questions of legality, it is the constitutional courts which have been conferred with the power of arriving at a final decision and the object of Article 201 is not to thwart the legislative procedure of the States by withholding of assent even in areas falling within the exclusive domain of the States on grounds of legality.
Summary of the Court Findings
We summarise our findings on the judicial review of the exercise of power by the Governor under Article 200 and by the President under Article 201 of the Constitution as follows: a. Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. Such a challenge can broadly be made on the following grounds:
(i) Where the reservation is on the ground that the bill is of a description falling under the Second Proviso to Article 200 of the Constitution, it may be assailed on the ground that the bill or any provision thereof does not so derogate from the powers of the High Court so as to endanger the position which that court is designed by the Constitution to fill. The Governor while reserving a bill on this count shall be expected to provide clear reasons and also point to the specific provision(s) of the bill which, in his opinion, attract the Second Proviso.
This question being purely of a legal nature would be completely justiciable and the competent court would be, after a proper adjudication, fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be a fit case for the issuance of a writ in the nature of mandamus to the Governor for appropriate action. If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.
(ii) Where the reservation is on account of the bill attracting any provision of the Constitution wherein the assent of the President is a condition precedent for the proper enactment and enforceability of such a bill as a law (such as under Article 364A2) or for the purpose of securing any immunity (such as under Article 31A) or overcoming any repugnancy that may exist qua a Central Legislation (under Article 254(2)), then the Governor is expected to make a specific and clear reference to the President properly indicating the reasons for such reservation and inviting his attention as described in Kaiser-I- Hind (supra). Such a reservation can be assailed by the State Government, if the reference made by the Governor either fails to indicate the reasons for such reservation as discussed above or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations.
Then such a reservation would be liable to be set aside. This question being purely of a legal nature would be completely justiciable and the competent court would be after a proper adjudication fully authorized to approve or disapprove of such reservation by the Governor. If such a challenge finds favour with the competent court, then, subject to any other considerations, it would be fit case for issuance of a writ in the nature of mandamus to the Governor for appropriate action. If, however, the challenge should fail then the mechanism envisaged under Article 201 of the Constitution will spring into action.
(iii) Where the reservation of a bill by the Governor for the consideration of the President is on the grounds of peril to democracy or democratic principles or on other exceptional grounds as mentioned in M.P. Special Police (supra) and Nabam Rebia (supra) then the Governor would be expected to make a specific and clear reference to the President properly indicating the reasons for entertaining such a belief by pinpointing the specific provisions in this regard and the consequent effect that may ensue if such a bill were to be allowed to become a law.
The Governor while making such a reference should also indicate his subjective satisfaction as to why the aforesaid consequences that may ensue cannot be possibly curtailed or contained by taking recourse to the constitutional courts of the country. It shall be open to the State Government to challenge such a reservation on the ground of failure on part of the Governor to furnish the necessary reasons as discussed aforesaid or that the reasons indicated are wholly irrelevant, mala-fide, arbitrary, unnecessary or motivated by extraneous considerations. This being a question completely capable of being determined by the constitutional courts, would be fully justiciable.
(iv) Reservation of a bill on grounds other than the ones mentioned above, such as personal dissatisfaction of the Governor, political expediency or any other extraneous or irrelevant considerations is strictly impermissible by the Constitution and would be liable to be set-aside forthwith on that ground alone. This will also encompass reservation of a bill by the Governor after having already exercised the option of withholding of assent in terms of Article 200 except in such exceptional circumstance as mentioned in paragraph 204 of this judgment.
(v) Where the Governor exhibits inaction in making a decision when a bill is presented to him for assent under Article 200 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 250 of this judgment then it shall be open to the State Government to seek a writ of mandamus from a competent court against the Governor directing expeditious decision on the concerned bill as is the mandate of the Constitution, however, it is clarified that the Governor may successfully resist such a challenge on providing sufficient explanation for the delay caused.
b. Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court. Such a challenge can broadly be made on the following grounds:
(i) Where a State bill has been reserved by the Governor for the consideration of the President on the ground that assent of the President is required for the purpose of making the bill enforceable or securing some immunity therefor, then in such cases the withholding of assent by the President would be justiciable to the limited extent of exercise of such power in an arbitrary or malafide manner. Owing to the political nature of the assent of the President in these categories of bills, the courts would impose a self-restraint.
(ii) Where a State bill has been reserved by the Governor, in his discretion, for the consideration of the President on the ground that the bill appears to be patently unconstitutional for placing the principles of representative democracy in peril, the withholding of assent by the President would, in ordinary circumstances, involve purely legal and constitutional questions and therefore be justiciable without any impediments imposed by the doctrine of political thicket. In such cases, it would be prudent for the President to obtain the advisory opinion of this Court by way of a reference under Article 143 and act in accordance with the same to dispel any apprehensions of bias, arbitrariness or mala fides.
(iii) Where the President exhibits inaction in making a decision when a bill is presented to him for assent under Article 201 and such inaction exceeds the time-limit as has been prescribed by us in paragraph 391 of this judgment then it shall be open to the State Government to seek a writ of mandamus from this Court.
Summary of the exercise of power by the president
We summarise our findings on the judicial review of the exercise of power by the President under Article 201in withholding assent to a bill as follows:
a. Where the bill which is under consideration is pertaining to a provision of the Constitution where primacy has been given to the Union government in taking a decision keeping in consideration the desirability of having certain uniform standards of national policy, then the limited grounds of judicial review would be based on arbitrariness, malafides, etc.
b. Where the bill which is under consideration pertains to a subject matter or domain within which State legislature has been accorded primacy, and the reservation of the bill is by the Governor contrary to the aid and advice of the State Council of Ministers, then in exercise of judicial review the courts would be competent to look into the reasons for withholding of assent and whether they are legally tenable or not, besides the grounds of malafides and arbitrariness, etc.
We clarify that the possible situations illustrated by above are not meant to be exhaustive and in the specific facts of a given case, the courts may evolve new standards of judicial scrutiny to ensure that the constitutionally prescribed procedure is adhered to in letter and spirit.
Reference
State of Tamilnadu v. Governor of Tamilnadu (2025)