Below are the questions and a summary of the answers given by the Supreme Court in an 111-page opinion:

1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?

The Constitution Bench today opined that the Governor does not have the power to simply withhold a bill.

It said that the Governor has three options:

a. to assent.

b. to reserve the bill for the consideration of the President.

c. to withhold assent and return the bill to legislature with comments.

What happens when the legislature passes the reconsidered bill without or without amendment? The Court today opined that the Governor cannot withhold assent even at this stage but still gets the option to reserve it for the President’s consideration.

“Therefore, when the Bill is returned to the Governor, he is still left with two options – either to grant his assent, or to refer it to the President for his consideration. This power to reserve a Bill for the President’s consideration, is irrespective of whether the Bill is returned by the Legislature in its amended or unamended form,” it said.

Importantly, in context of option (c), the Court noted that though phrase “shall not withhold assent therefrom” is employed in the first proviso to Article 200, it is absent from a similarly worded proviso to Article 201.

Article 201 deals with the options the President has upon reservation under Article 200. Can the President withhold a Bill?

Since the said question was not raised in the reference, the Supreme Court said it need not say anything on that.

“Upon reservation under Article 200, the President is empowered to exercise his options under Article 201, and the proviso also provides for an option to return the Bill to the House with a message. What is important is that the words “shall not withhold therefrom” which is present in the first proviso to Article 200 is conspicuously absent from the proviso to Article 201. Since the Presidential reference has not sought our opinion as regards the options under Article 201, we say no further.” 

2. Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?

The Constitution Bench said that the Governor “ordinarily” exercises his functions in accordance with the aid and advice tendered by the Council of Ministers. However, it added that the Constitution itself provides that the Governor may discharge certain functions upon his discretion, and without being bound by the aid and advice tendered by the Council of Ministers.

In context of Article 200, the Court opined that inclusion of the phrase “in the opinion of the Governor” in the second proviso to Article 200 is a definitive expression of the fact that Governor does enjoy discretion in discharging his functions under Article 200.

“Having already held that the Governor does not have powers simpliciter to withhold, we find that the Governor has discretion in the context of referring a Bill for the consideration of the President, or for returning the Bill to the Legislature with his comments,” the Court said.

However, it also opined that this interpretation does not confer any unfettered powers on the Governor.

“In fact, it does not in any way deviate from the concept of a responsible constitutional government,” the Court said.

3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?

The Court answered that the constitutional choice made by the Governor is not justiciable and a merit review is unavailable in judicial proceedings.

4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

Even as it said that the Courts cannot look into the merits of a Governor’s decision, the bench clarified that they can always take cognizance of inaction and for that limited purpose, a direction can be issued asking the Governor to exercise his constitutional choice within a reasonable period of time. 

“This limited judicial review, cannot be overcome on the pretext of Article 361, which offers personal immunity to the Governor. The constitutional office of the Governor is definitely subject to the jurisdiction of the court, to prevent prolonged and evasive constitutional inaction,” it added.

5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?

The Constitution Bench today said that the imposition of timelines on the Governor under Article 200 in Tamil Nadu case was erroneous.

It reasoned that the text of Articles 200 and 201 has been framed in such a manner, so as to provide “a sense of elasticity, for constitutional authorities to perform their functions, keeping in mind the diverse contexts and situations, and by consequence the need for balancing that might arise in the process of lawmaking in a federal, and democratic country like ours”.

Thus, as a natural corollary of this reasoning, the Court said there cannot be a concept of ‘deemed consent’ in absence of any prescribed timelines under Articles 200 and 201.

6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?

For similar reasoning as held with respect to the Governor, the Court said that the President’s assent under Article 201 too, is not justiciable. 

7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?

President, like the Governor, cannot be bound by judicially prescribed timelines in the discharge of functions under Article 201, the bench opined.

The Court noted that there was no occasion in Tamil Nadu case for setting a timeline for disposal of Bills referred to the President under Article 201.

“Thus, it is clarified that any observations on the aspect of timelines applicable to the President under Article 201, or conclusions thereof on this aspect, are merely obiter, and ought to be treated as such,” it said.

8. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President’s assent or otherwise?

The Court said that the President is not required to seek Supreme Court’s advice by way of reference under Article 143 every time a Bill is reserved for his consideration by the Governor, under Article 200.

It added that the President’s subjective satisfaction is sufficient under Article 201. However, the Court also clarified that a President can always make the reference in case of such requirement.

“If there is a lack of clarity, or the President so requires advice of this Court on a Bill, it may be referred under Article 143, as it has been done on numerous previous occasions.”

9. Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?

The Court said that judicial review of a bill that is anterior to its enactment as law, is unheard of and unfathomable in the constitutional practice and history of India.

“Judicial review of a legislation is premised on the fact that it will be considered by the Court, only after it has been made into law – i.e., assented by the Governor or President as the case may be, and brought into force. It is this judicial review over legislation that our constitutionalism envisages, and this particular form is an essential feature of our basic structure,” it added.

The bench termed as erroneous the view that courts may sit in review over bills, and highlighted how it would destroy the doctrine of separation of powers.

“This would have the effect of Courts supplanting the wisdom, and considerations of the Governor and President – who are constitutional authorities vested with constitutional obligations, in exercise of the court’s power of judicial review. We are of the considered opinion that to permit such a reading of the Constitution, would be to destroy the doctrine of separation of powers – which as elaborated above in our discussion on ‘deemed assent’– is an essential feature of our Constitution,” the Court said.

10. Can the exercise of constitutional powers and the orders of/by the President/Governor be substituted in any manner under Article 142 of the Constitution of India?

The Court rejected the argument that the power under Article 142 can be deployed to substitute the Governor’s actions with a judicial order when there is unexplained delay.

It noted that the concept of ‘deemed assent’ in the context of Articles 200 and 201 presupposes that the Court could play a ‘substitutional role’ for the Governor, or President.

However, it said that such a usurpation of the gubernatorial function of the Governor, and similarly of the President’s functions, was antithetical not only to the spirit of the Constitution, but also specifically, to the doctrine of separation of powers – which is a part of the basic structure of Indian Constitution.

“We have no hesitation in concluding that deemed consent of the Governor, or President, under Article 200 or 201 at the expiry of a judicially set timeline, is virtually a takeover, and substitution, of the executive functions by the Judiciary, through judicial pronouncement, which is impermissible within the contours of our written Constitution,” the Court said. 

11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?

There is no question of a law made by the State Legislature coming into force without assent of the Governor under Article 200, the Court said. The Governor’s legislative role under Article 200 cannot be supplanted by another constitutional authority, it added.

12. In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of the Supreme Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?

The Constitution Bench did not answer the question.

It said that whether a dispute raises such a question or not is within the province of judicial enquiry. It also noted Chief Justice of India has the power and jurisdiction to determine the strength of a Bench.

“This query is irrelevant to the functional nature of the reference, and this Court declines to answer this question,” today’s opinion stated.