Earlier this month, the Supreme Court made headlines by stepping into what it saw as a constitutional deadlock between the Tamil Nadu government and its governor. For over three years, multiple bills passed by the state legislature sat in limbo, awaiting gubernatorial assent. After prolonged silence and inaction from Governor RN Ravi’s office, the Supreme Court intervened—and arguably went a step too far.
In an unprecedented move, the court not only declared the governor’s delay “illegal” but also introduced a new mechanism: “deemed assent.” According to the judgment, if a governor fails to act on a bill within three months, it would be considered automatically approved. The court extended this logic to the President as well, prescribing timelines for decisions on bills referred to the Union.
When Vice President Jagdeep Dhankhar publicly questioned the verdict in State of Tamil Nadu v. Governor (2025 INSC 481), it triggered sharp reactions from various quarters. But beyond the noise, it raised a legitimate constitutional debate: can the judiciary, even with the best intentions, introduce changes to the structure of the Constitution in response to political inaction?
Between January 2020 and April 2023, the Tamil Nadu Legislative Assembly passed twelve bills—mostly related to state universities and appointment of Vice Chancellors. These were sent to the governor, only to languish without response. After the state approached the Supreme Court in 2023, the governor reacted—rejecting some bills and reserving others for the President. The Assembly then re-passed ten of them, which were once again reserved for presidential consideration. The state government turned to the judiciary for relief. The Supreme Court stepped in—and gave a solution.
But that solution has now led to a storm, if not a tornado, in the legal and political corridors.
When the court writes what the Constitution doesn’t
At the heart of the controversy is the concept of “deemed assent.” Under the Constitution, Article 200 outlines the governor’s limited but clear roles: to grant assent, withhold assent, return the bill for reconsideration, or reserve it for the President. Nowhere does it provide for inaction leading to automatic assent.
By introducing such a mechanism, the court crossed a line—from interpretation into invention. It attempted to plug an institutional gap, but did so without the authority to amend the Constitution. Under Article 368, only Parliament wields that power.
The court’s intentions may well have been noble. But noble intentions cannot override constitutional procedure. While it may be tempting to applaud swift judicial action in the face of political dysfunction, we must be cautious about the precedent it sets—that courts can unilaterally reshape constitutional duties when other institutions fall short.
Procedural lapses and ignored precedents
The legal flaws are as troubling as the constitutional ones. First, the verdict was delivered by a two-judge bench, even though Article 145(3) clearly requires that any case involving substantial constitutional interpretation be heard by a Constitution Bench of five or more judges. This case concerned the distribution of powers between the Union and the states and the constitutional roles of the governor and the President. It unquestionably merited a larger bench.
Furthermore, the judgment sidestepped a binding precedent. In Nabam Rebia v. Deputy Speaker (2016), a five-judge Constitution Bench had examined the governor’s discretionary powers in detail. Ignoring that precedent without referring the matter to a larger bench not only breached judicial discipline but also undermined the judgment’s own authority.
Even more striking, the court declared B.K. Pavitra v. Union of India (2019) per incuriam—that is, decided in error—a power it did not possess. According to its own precedent in Central Board of Dawoodi Bohra v. State of Maharashtra (2005), a bench of equal strength cannot overrule another; it must refer the matter to a larger bench.
Article 142 is not a shortcut to reform
The court invoked Article 142 of the Constitution, which empowers it to pass orders necessary to do “complete justice.” But however broad, this Article is not a legislative tool. It cannot be used to rewrite the Constitution. It does not authorise the creation of a fifth mode of assent, nor allow the imposition of timelines where none exist.
If such use of Article 142 is allowed to stand, it could become a convenient instrument of judicial legislation—violating the principle of separation of powers, a basic feature of our Constitution.
Immunity and institutional clashes
The judgment also ventured into constitutionally fraught territory by suggesting that courts can issue directions—potentially even writs of mandamus—against the governor or the President. This raises serious concerns under Article 361(1), which grants these authorities immunity from judicial proceedings in their official capacity.
In Rameshwar Prasad v. Union of India (2006), the court reaffirmed that while executive advice given to these functionaries can be judicially reviewed, their personal decisions and conduct cannot. By opening the door to direct directions against them, the court has invited future constitutional clashes.
A cautionary tale
Vice President Dhankhar’s remarks, in his capacity as Chairperson of the Rajya Sabha, must not be dismissed as political posturing. They are a sober reminder that separation of powers is not a technicality—it is the backbone of constitutional democracy. The court’s ruling may offer short-term relief, but it risks long-term institutional damage.
The State of Tamil Nadu v. Governor judgment deserves reconsideration by a Constitution Bench—not because the court’s motives were flawed, but because its methods exceeded constitutional bounds. The Constitution functions not just through its text but also through conventions. It is a living document—but it cannot be reshaped through judicial fiat. The solution lies not in judicial innovation, but in restoring constitutional convention and cooperative federalism.
But who will bell the cat?
The bigger question
At the core of this debate lies a deeper question: should every political standoff end up in court? Are we inching toward a system where the judiciary becomes the ultimate arbiter of every failure by political functionaries?
The answer, in any mature democracy, must be no.
As the Supreme Court itself poignantly observed in its concluding lines: “We hope and trust that the Governor and the State Government would work in tandem and harmoniously, keeping the interests and well-being of the people as their paramount consideration.”
The Constitution relies on trust—between institutions, between the Union and the states, between the executive and the legislature. When that trust breaks down, the answer lies in restraint, not retaliation; in dialogue and deliberation—not directives and deadlines.
The author is a Delhi-based advocate. He tweets @adityak_law. Views are personal.
(Edited by Prashant)
Lord Ganesha !!
Is there anything that this govt. can be said to be responsible for?! Or is its duty only limited to receiving unceasing, undiluted, craven admiration?
@Anonymous. Sir,
The high pendency of cases in India’s courts is largely because of poor funding by the Govt. And the present Government’s refusal quite often to approve the appointment of judges recommended by the judiciary for filling up vacancies. So, there is not only poor bench size, there is also poor bench occupancy.
That apart, a large proportion of the cases clogging our courts are those filed by the GoI, many of which are frivolous ones. GoI is the biggest litigator. I think the Income Tax dept. is among the most active. The practice is not an invention of the present regime. It has been so since long. Cases are filed as a matter of routine by officers, especially to protect themselves from possible wrong-doing charges later. Many cases are filed out of spite. Cases typically drag on for ages.
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There is no justification for failure or misconduct by any govt….past or present. Likewise, by any state institution or functionary. That can’t be only for the judiciary.
This govt. faces allegations of corruption, violations, and misconduct that are far graver than those against the earlier Cong. govt. In a few of the cases, not even a token investigation was conducted by the concerned agencies, all of which are under the thumb of the current govt.
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That those bills are “third-rate socialist files” is of no consequence at the juncture they are. At most, the Governor can ask for reconsideration of the bill, or for consideration of the bill by the President, but only if any of the couple of listed criteria are met.
If people find certain bills and laws to be ideologically offensive, then they need to oppose them the right way in the right forums at the right time. It requires hard work. That’s the price of freedom. There are no special privileges for a few that grant them their wishes when they throw tantrums.
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I was beginning to take this lawyer seriously.
The ardent appeal for observance of constitutional restraints in the exercise of power… the need to also use the right methods instead of merely relying upon right intentions….I am a sucker for such prose.
Then, I read his statement under para-heading “When the court writes what the Constitution doesn’t” : { “At the heart of the controversy is the concept of “deemed assent.” Under the Constitution, Article 200 outlines the governor’s limited but clear roles:
to grant assent,
withhold assent,
return the bill for reconsideration,
or reserve it for the President. Nowhere does it provide for inaction leading to automatic assent.” }
I looked up Article 200.
Yes. Article 200 does not allow for inaction by the Governor. At all. Inaction is not an available course of action.
Unlike what the lawyer falsely suggests, withholding of assent is not an option independent of the two listed next.
If a governor decides not to assent, i.e, chooses to withhold assent, then the Governor has to necessarily return the bill or reserve it for the President.
It ordains that “the Governor may, ‘as soon as possible’ after the presentation to him of the Bill for assent, return the Bill ….”
or
the Governor may forward the Bill to the President if the Governor is of the opinion that its enactment will “derogate” from the powers of the High Court, to the detriment of its defined role.
The Constitution (Article 200) does not allow a Governor to squat on a bill, i.e., to indulge in inaction with regard to the bill for a period which is not “as soon as possible”. (Excerpts of Article pasted at the bottom of the comment.)
The only discretion the Supreme Court seems to have exercised is to quantify the maximum period a governor can “withhold assent” . Should a 5 judge bench really been constitued for that instead of the Court’s invocation of Article 142? Considering that the lenght of tenure of a government is 5 years, even the prescribed/suggested 3 months duration is too long a grace period.
The english is plain and clear. The lawyer is obviously trying to confuse and mislead us.
The unnecessarily long, byzantine analyses being given, either way, in the rush of articles must be because of the mandated minimum length of 800 words.
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My opinion about ThePrint keeps nosediving further and further.
Does this lawyer represent the Govt for this case.? Or are these his unretained professional views which are nevertheless his “personal” views, i.e., views which are not officially those of ThePrint? Or are these his Friday Night views?
Why has he been given space for his opinion? Is he the best ThePrint could get, even if for that direction of opinion? Is this “Delhi-based advocate” a distinguished expert whose opinion deserves to be accepted as being authoritative by ThePrint’s subscribers? Or is ThePrint more of a billboard?
There are quite a few regular columnists (like the RSS chap…Chary, and Jerry Rao, etc.) whose analyses and opinions are mostly flighty. They do not attempt to rely only on “relevant facts” or adequate data or appreciable logic. Many of them read like middle-school level compositions that most students write for the essay titles their teacher hands out to them in advance. Mandatory weekly-once stints on the rack for the schoolboys, which they prefer to undertake after having swallowed a bottle of cough-syrup.
Is this really serious journalism? What journalistic standards does ThePrint follow? Can an ordinary reader trust ThePrint to give them reliable, credible, useful news & analyses? Or is Mr. Shekhar Gupta purveying some new-age, post-truth kind of reading experience in which the onus is totally on the reader to make the right determination at the end of every sentence?
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Excerpts of Article 200
{“The Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President….
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof …..
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”}
I wonder where the author was all these years when the Governor was misbehaving and playing games with the duly elected assembly. Where was the VP who waxes eloquently about the supremacy of the elected Parliament over the courts when the Governor blatantly violated all norms of democracy and insulted the assembly and the people of TN?
If I were the governor of Tamil Nadu, I would have told the SC that since the Indian judiciary takes decades to dispose of cases, it has no right to tell me when to sign third-rate socialist files. Going by the SC’s logic, courts should dispose of cases within a year of filing. Failure to do so should result in the cases going to foreign courts through video conference, dismissal of presiding judges from service, and ₹1 crore penalty imposed on the government for every such case. The penal amount should go to development of judicial infrastructure and hiring judges.