Unelected Executive in States: Catalysts or Inhibitors?

Recently, in a landmark ruling in State of T.N. v. Governor of T.N.¹, the Supreme Court (SC) clarified the constitutional duties of Governors under Article 200² regarding pending legislative Bills. The case stemmed from the Tamil Nadu (T.N.) Governor’s prolonged inaction on ten Bills forwarded by the State Legislature, compelling the Government to seek the SC’s intervention. However, the issue extends far beyond these Bills’ assent. This case exposed a pattern of constitutional overreach by the Governor, where instances such as withholding corruption probes by delaying sanctions for the prosecution of public servants, sitting on prisoner-release files, and stalling key appointments, all while flouting ministerial advice, were observed. Yet this pattern extends beyond a single State, with multiple opposition-led Governments facing similar crises. Kerala saw eight Bills stalled for two years until SC intervention. West Bengal challenged delays on education reforms, while Punjab’s landmark ruling in State of Punjab v. Governor of Punjab³ barred vetoing passed Bills. Telangana and Karnataka faced similar delays, with Bills held for months before token objections. Hence, the rise of regional parties, coalition politics, and federal tensions has shifted the Governor’s role from a ceremonial figure to an adversarial political leveller. These recurring frictions between appointed Governors and elected Governments often bring constitutional machinery to a standstill.

Our Constitution has adopted the Westminster model, where for a law to be passed, must receive the approval of the Houses (legislature) and the Governor. Article 200 of the Constitution⁴ requires the Governor, upon presentation of a State-passed Bill, to exercise one of three mutually exclusive options: (1) grant assent; (2) withhold assent; or (3) reserve the Bill for Presidential consideration only if it threatens the High Court’s constitutional powers or the Bills suffer from repugnancy i.e. when a State law conflicts with an existing Union law on a Concurrent List subject, making the State law void to the extent of inconsistency (Article 254⁵). Hence, these powers are disjunctive — the Governor cannot simultaneously withhold assent and reserve a Bill.

The current dispute is on the abuse of options (2) and (3), where Governors either indefinitely delay assent or improperly refer Bills to the President. However, the Governor may return a Bill to the legislature with recommendations for reconsideration or amendments. However, if the assembly repasses the Bill, whether modified or unchanged, then the Governor is constitutionally bound to grant assent. But a troubling trend has emerged, where Governors are blocking legislation twice — first by withholding assent to a Bill forcing its return to the legislature, and then, when the Assembly repasses the same Bill often unchanged, attempting to block it again by reserving it for Presidential consideration instead of granting mandatory assent.

A comparison between Section 75 of the Government of India Act, 1935, and Article 200 of the Constitution reveals a conscious decision that reflects India’s transition, where under Section 75, the Governor acted “in his discretion” and granted assent in the name of the British Crown.⁶ Further, when a Bill is so returned with recommendations, the Chamber “shall” reconsider. In contrast, Article 200 omits the phrase signalling that the Governors are bound by ministerial advice, not personal will. Unlike Section 75, which permitted Governors to indefinitely veto Bills even after reconsideration, Article 200 mandates that repassed Bills must receive assent, securing legislative supremacy. This shift reflects the framers’ vision, replacing colonial autocracy with democratic accountability and federal balance. Even if we turn the pages of our Constituent Assembly Debates, Dr B.R. Ambedkar, while moving an amendment to remove this discretion of the Governor, has stated that “in a responsible Government, there can be no room for the Governor acting on discretion”.⁷

Post-independence Commissions, notably the Sarkaria Commission (1983), analysed federal dynamics and recommended that Bills should only be reserved in specific constitutional cases, such as those affecting the High Court’s powers (Article 200), imposing certain taxes (Article 288⁸), or during financial emergencies (Article 360⁹). Other valid reasons include Bills seeking immunity from fundamental rights (Articles 31-A¹⁰ and 31-C¹¹) or those needing to override central laws on concurrent subjects [Article 254(2)]. Later, the Punchhi Commission (2007)¹² has recommended strict time-limits i.e. 4 months for Governors, 3 months for the President, to prevent indefinite delays in Bill assent. Even recently, the Supreme Court (SC) in State of Telangana v. Governor of Telangana¹³ observed that: “The expression ‘as soon as possible’ has significant constitutional content and must be borne in mind by constitutional authorities.” The Constitution evidently contains this provision, bearing in mind the importance which has been attached to the power of legislation, which squarely lies in the domain of the State Legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.¹⁴ However, Tamil Nadu judgment¹⁵ serves as a corrective measure to recent abuses, the SC invoked its powers to do complete justice under Article 142¹⁶ as a necessary intervention after finding the Governor committed three clear constitutional violations: (1) excessive delays in processing Bills; (2) improperly withholding assent without providing required recommendations; and (3) reserving repassed Bills for Presidential consideration. The Court also prescribed specific deadlines, one month for granting assent or reserving Bills when following ministerial advice; three months for returning Bills when withholding assent against advice; and one month for mandatory assent to repassed Bills.

It is equally gratifying to note that the Supreme Court has also prescribed a time-limit for the President to decide on the Bills within a time-frame, which would certainly avoid possible constitutional crises. After all, in a parliamentary form of Government, federalism and democracy are parts of the basic structure and are inseparable. When one feature is diluted, it puts the other in peril.¹⁷ What was envisaged by the architects of the Constitution was not the supremacy of the unelected over the elected executive. Few constitutional law experts have questioned the SC’s direction allowing the issuance of a writ of mandamus against the President if she fails to decide on Governor-referred Bills within three months. The judiciary, as the ultimate interpreter of the Constitution, has to uphold its true spirit to ensure that all constitutional functionaries — including the President — adhere to the constitutional frameworks. While the President has to protect, preserve and defend the Constitution, judicial intervention through mandamus in cases of prolonged inaction does not diminish her authority; rather, it upholds constitutional integrity by preventing procedural paralysis. Such measures are not judicial overreach but a necessary mechanism to maintain the constitutional balance of power.

Recently, Jasti Chelameswar, Former Judge of the SC, however, suggested that instead of directing a mandamus at the President, it might be more appropriate to issue it to the Council of Ministers, since the President acts on its aid and advice under Article 74¹⁸ of the Constitution.¹⁹ Yet, this alternative presents its own challenge, even if the Council of Minister’s tender advice, the President could still withhold assent without explanation. Thus, while proposal appears sound in theory (as it avoids directly mandating the President), in practice, it may fail to resolve the underlying issue of delayed decision-making.

It is often mentioned that the judiciary is an undemocratic institution. The same may be squarely applied to the unelected institution of Governors. Further, the Court declared these ten Bills as deemed to have been assented to on the date when they were presented to the Governor after being reconsidered by the State Legislature of Tamil Nadu. This course of action is to be welcomed as the mandate of the people would be defeated otherwise.