Supreme Court’s ‘Swadeshi’ Interpretation Stops Short of Tackling Governor Delays

On Thursday, the Supreme Court delivered its advisory opinion on the Presidential Reference concerning the powers of the Governor and the President when Bills are presented for assent. The reference followed the Court’s recent judgment in State of Tamil Nadu v Governor of Tamil Nadu, where a two-judge Bench, responding to prolonged gubernatorial inaction, introduced fixed timelines for assent and the idea of “deemed assent” if those timelines were not met.In its advisory opinion, the Constitution Bench has now held that these directions are constitutionally impermissible, characterising them as a rewriting of Articles 200 and 201. While the judgment raises several important questions, this piece focuses on one central concern: does prescribing a timeline for gubernatorial action truly amount to amending the Constitution?From Delhi to Times Square: The Anti-Dalit Campaign to Humiliate CJI GavaiTo answer that question, it is necessary to return to the structure of Articles 200 and 201. Once a bill is passed by a State Legislature, the Governor — or, in certain cases, the President — must decide whether to grant assent, withhold assent, return the Bill for reconsideration, or refer it to the President. The Constitution, however, says nothing about the timeline over this decision. The silence is striking. Over the last few years, it has created a constitutional grey zone in which bills passed by elected legislatures have been kept pending for months, sometimes years, without explanation. In practice, this has enabled something akin to a pocket veto in a system that does not formally recognise such a power.The Tamil Nadu judgment was an attempt to address this democratic deficit. It did not alter the substantive options available to the Governor or the President. Instead, it sought to ensure that these options were exercised within a timeframe compatible with the functioning of a parliamentary democracy. It is this intervention — prescribing timelines where the text is silent — that the Constitution Bench has now held to be an impermissible judicial amendment.At first glance, the objection appears rooted in classical separation-of-powers principles. The judiciary interprets the Constitution; it does not amend it. Where the Constitution is silent, the Court cannot supply what the framers did not. Yet, this fidelity to text sits uneasily with the Court’s own constitutional history.There are several instances where the Court has departed from the literal text because the functioning of the constitutional system demanded it. Most notably, the basic structure doctrine, which holds that Parliament cannot abrogate essential features of the Constitution, was developed even though the Constitution contains no substantive limits on the amending power and despite the Constituent Assembly’s clear intent on the matter.Equally striking is the evolution of the judges-appointments jurisprudence. Through decisions culminating in the Collegium system, the Court effectively re-wrote the operation of Article 124 by vesting primacy in the Chief Justice of India and the Collegium, notwithstanding the text which vests the said power in the President. There are numerous other examples. In each, the Court did not hesitate to reshape constitutional arrangements when the system, as originally designed, no longer ensured the Constitution’s proper working. These interventions unquestionably strained, and in some cases overtly stretched, the separation of powers.Yet they were justified by the Court on grounds of constitutional and institutional necessity: in the absence of substantive limits in Article 368, the Constitution could be hollowed out by amendments; and without safeguarding judicial appointments from the executive, the basic guarantee of an impartial judiciary could be compromised — a fear that felt particularly acute in the constitutional climate of the 1970s. Against this backdrop, it becomes difficult to accept the claim that textual fidelity alone constrains the Court in the context of gubernatorial delay.If anything, this is a case where constitutional workability has broken down in a more immediate and visible manner. In Tamil Nadu, as the facts of the case reveal, several bills were left pending with the Governor for exceptionally long periods. Some were returned only after the State approached the Supreme Court. When the Bills were re-passed, punctually, they were again delayed by being referred to the President. This phenomenon is not restricted to Tamil Nadu and has been witnessed in states of Punjab and Calcutta, where bills passed have remained in limbo for extended periods. Hence, these are not isolated aberrations; they represent a broader pattern of gubernatorial delay that frustrates routine law-making.Against this backdrop, the Tamil Nadu judgment attempted to give meaningful content to the constitutional duty to act. Whether its specific solution — prescribing a precise timeline and introducing deemed assent — was the best approach is a matter for legitimate debate. But it is far more difficult to sustain the conclusion that any attempt to articulate a temporal standard necessarily amounts to amending the Constitution.These timelines do not alter the substantive powers conferred by Articles 200 and 201. They merely give effect to what the constitutional scheme already presupposes: that assent must be taken within a time period consonant with democratic governance.This is also not a case where the Court is being asked to rewrite the substantive text as was the case in the basic structure doctrine or judicial appointments; it is a case where constitutional silence has created a functional vacuum that can be — and has been — used to frustrate the functioning of elected governments.I am not a proponent of unchecked judicial power, and the Court must remain mindful of the limits of its institutional role. Yet its own precedents demonstrate that where constitutional design leads to paralysis, the Court has not hesitated to intervene.The refusal to consider timelines here appears less a matter of constitutional principle and more a matter of selective restraint.What makes the present opinion more complex is that, in parts of its reasoning, the Court adopts a refreshingly pragmatic attitude to constitutional interpretation. For instance, while examining whether the Governor exercises independent discretion in granting or withholding assent, or whether they are bound by the advice of the Council of Ministers, the Court correctly notes that it would be “unfathomable” to expect a government to advise the return or referral of a Bill it has itself piloted. The Governor, it observes, must therefore retain a degree of discretion to act as a constitutional check on the legislature. This is a candid and realistic acknowledgement of political incentives.Yet this pragmatism seems to vanish when the Court turns to the question of constitutional silence. Although it recognises the structural risk of executive dominance in one direction, it does not extend the same logic to the opposite and more prevalent problem: the misuse of constitutional silence by Governors to delay or stall legislation. On this point, the judgment retreats from the practical realities it acknowledges elsewhere.The Court does hold that prolonged, unexplained inaction may attract limited judicial scrutiny. But in practice, this would amount to little more than the Court directing the Governor to act—a direction that may again be ignored, as recent experience shows. Judicial review, without a temporal standard, risks merely extending the status quo. This is precisely what has not worked: State governments have been compelled to repeatedly litigate to ensure that Bills they have already passed are even considered.In an interesting—though somewhat tangential—portion of the judgment, the Court responds to arguments based on American and British jurisprudence by asserting, in a distinctly patriotic tone, that while the constitutional text may have been inspired by comparative models, its interpretation is “truly swadeshi.” This is a sentiment with which I am in complete agreement. But if interpretation must be swadeshi, it must also be rooted in swadeshi realities. Westminster systems presume deep reserves of constitutional good faith between institutions; instances of gubernatorial delay are rare. Indian federal practice, however, demonstrates that such assumptions cannot always be made. Gubernatorial inaction has, across political contexts, become a tool of leverage between the Union and the States. A genuinely swadeshi approach must respond to these lived realities rather than assume the constitutional culture of another polity.The question, ultimately, is not whether timelines appear in the Constitution—they do not—but whether constitutional silence should be permitted to become constitutional paralysis. The Supreme Court has, in other contexts, resisted such paralysis by developing doctrines necessary for the Constitution’s effective working. Its reluctance to do so here sits uneasily with that broader jurisprudential trajectory.(The author leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. He specialises in constitutional law and administrative law, with a particular focus on constitutional interpretation and judicial review. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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SC Says No Timelines for Governors. But Can Constitutional Silence Be a Veto?

The refusal to consider timelines appears more a matter of selective restraint than of constitutional principle.

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