Weaponising Constitutional Silences

**Mokshith Bhyri

A day before the outgoing Chief Justice of India B.R. Gavai was to retire from the office on November 23, 2025, a Constitutional Bench of the Supreme Court delivered a significant verdict involving pressing concerns of Contemporary Constitutional relevance. The Bench, comprising the outgoing Chief Justice and three senior-most judges (including the upcoming Chief Justice), overturned a recent judgment concerning the Tamil Nadu Governor’s delay over assent to bills passed by the State Assembly. The earlier verdict, delivered by a two-judge Supreme Court Bench, in the Tamil Nadu Governor’s Case was both bold and pragmatic. It had sought to limit the discretionary power of Governors by prescribing a three-month timeline for the President to decide on bills the Governor had reserved for presidential consideration. By setting this limit, the two-judge Bench had effectively toned down the “pocket veto” power frequently exercised by Governors across multiple states (especially opposition-ruled states). This veto occurs when a Governor indefinitely delays a bill, duly passed by the State legislature, by simply “referring” it to the President of India.

The present article focuses on a much more practical and consequentialist side of the very functioning of the office of Governors and the inherent “discretion” vested. More specifically the author will try to elucidate how this reference opens the door for other Constitutional Offices, such as the Speaker, where there is a similar absence of timelines in adjudicating anti-defection pleas.  This absence of timelines in both instances serves as a potent example of “Constitutional silence”. Such a similarity regarding presence of constitutional silences, coupled with unchecked discretion of these functionaries elucidates a ‘snowball effect’ of the consequences these silences bear on the practical functioning of Parliamentary democracy in India. This article tries to elucidate how the Constitutional Bench turns a blind eye to not just the inherent fears that the founding fathers of our Constitution had foresighted, but also the inherent partisan considerations underlying constitutional Functionaries like the Governor, President and the Speaker in contemporary Indian Democracy. The author cites various instances in the Constituent Assembly Debates where our draftsmen have expressed exactly the similar concerns around Governor and Presidential discretion in vetoing bills, which have now come true after 75 years after the Constitution has come into effect. The author advocates for a principle of balanced judicial intervention over a limited judicial review to tone-down the wide discretion enjoyed by these Constitutional Functionaries.

“Reasonable time” side stepping to “Indefinite withholding”- Questioning the Elasticity under Article 200

A total of fourteen questions were put forth by the President of India for seeking reference from the Supreme Court under its Advisory Jurisdiction under Article 143. On two significant questions, i.e., “Whether in the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor and the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretionary powers under Articles 200, 201 of the Constitution?” 

The predominant justification provided by the 5-judge bench in answering this is based on the logic of elasticity. The Court observes 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 law-making in a federal, and democratic country like ours. The imposition of timelines would be strictly contrary to this elasticity that the Constitution so carefully preserves.”

Undoubtedly Articles 200 and 201 warrants certain elasticity and stricter timelines may not be conducive, and that’s why the Court says “reasonable time”. But the question remains, on a practical side, how in practise this “reasonable time” under the smoke screen and facade of elasticity/garb of elasticity has resulted in vetoing for an indefinite time without any counter-majoritarian authority to question the functionary. Experience has shown consistently, across states such as in Tamil Nadu, Kerala, Punjab, Telangana, Chhattisgarh, West Bengal and Karnataka that an approximate average period of vetoing over the bills ranged between six months to as prolonged as four years. 

The Indian Constitution vests with the Office of Governor a function to an extent that a bill cannot become a law unless assented by the Governor. With such being the significance of exercising their functions, an equally important sense of responsibility and duty vests on such authority to ensure a timely action is taken. An indefinite vetoing, by omitting to act on the bills amounts to an abdication of that constitutional duty specifically entrusted by the constitution on such an authority. Thereby, such an abdication should have been construed and interpreted as a powerful and meaningful ground to invoke judicial review. It is exactly this concern that the previous two-judge bench takes note of, by subjecting such a discretion to Judicial Review. Any interpretation of the phrase “reasonable time” in this regard, should therefore be aimed at furthering the goals of Parliamentary democracy rather than stifling them through pocket vetoing. An absence of such a pragmatic and contextual interpretation by the court will enable the discretion/ elasticity inherent under Article 200 and 201 to operate as a double-edged sword, thwarting the very foundations of democratic principles which it is intended to uphold.

Bridging the Constitutional silence on timelines- revisiting the Constituent Assembly Debates

A predominant logic, which the Court provides in the 5-judge bench verdict, and what is usually contended by democrats is that Courts cannot usurp the role of law making under the garb of review. However, going back to Interpretation of Statutes one-on-one, filling of gaps by the courts in the absence of an explicit text or provision is what a purposive interpretation allows. In doing so, the Courts revisit the intent of the drafters or the law maker to ascertain the object and intent behind creating a vacuum or silence within the text. A similar such Constitutional silence which is inherent in Article 200, 201 of the constitution is the non-prescription of any definitive timeline on the Governor or the President which uses phrases like “as soon as possible”. This silence is where the undesirable power of pocket veto chips in. Interestingly however, proviso to Article 201 provides a six-month timeline within which the legislature must act when a bill is sent back by the President to the Governor. While the Constitution bench goes with the logic of ensuring “Constitutional elasticity” as the intent for not prescribing definitive timelines (Para 115) , it is imperative to ascertain what the founding fathers intended during the framing of these provisions.

There were considerable debates in the Constituent Assembly on the question of appointment of Governors vis a vis that of direct elections. It was felt by members like Hukam Singh, making the office Governor as an “appointee” of the party in power in the Union coupled with conferring discretion to act beyond aid and advice of the council of ministers is a deadly combination. He explicitly cautioned the possibilities of abuse and favouritism if such a Governor is in place. Other members like PS Deshmukh argued that though the house was in majority to proceed with appointment-based Governors, the fear of interference of an appointed head of state in day-to-day administration should be curtailed. Vetoing of bills pertaining to varied subject matters like town-planning and development in Karnataka and West Bengal, university administration in Tamil Nadu and Kerala, by withholding assent, precisely boils down to this fear of interference in day-to-day administration.

More aptly, there were explicit debates in the Constituent Assembly over Articles 175 and 188 of the Draft Constitution (present day Articles 200, 201). Hriday Nath Kunzru makes a pivotal observation by drawing parallelism in Canada where there existed a practise of Lieutenant Governors (LG) reserving the bills for the consideration of Governor General, wherein as the representative of the Crown, he had the right to disallow a provincial Bill. Section 55 of the Canadian Constitution Act 1867 is pari materia to Article 200 in so far as it allows the head of the state/ provinces to exercise three forms of discretion- to assent, withhold or refer it to the Head of the Union. Section 57 replicates Article 201, but in contrast provides a “two-year timeline” from the day on which it was presented to the Governor General by the LG. Citing such an explicit mandate, H.N. Kunzru cautions the possibility of the President instructing the Governors to reserve for his consideration Bills that the Centre does not approve of. Hence, in the following words, he strongly pressed for a certain time period within which the President must be bound to act on the provisional bills referred to him/her by the Governors. 

“It will be better if instead of using the Governor as an instrument of the President, the power of disallowing Provincial Bills within a certain period is given to the President. In that case, the responsibility both in form and in reality, will be that of the Central Executive. In the other case, there is likely to be friction between the Governor and his Cabinet. The case of Canadian provinces shows that this fear is not imaginary.”

In view of the above-noted dangers, he pressed for either a deletion altogether or an amendment to Article 188 of the Draft Constitution (present day Article 201) “so that it may be consistent with the establishment of responsible ministries in provinces and may not lead to bitter conflicts between the Governor and his Cabinet”. His motion however was rejected by the house. Dr. BR Ambedkar himself opposes the amendment suggested by Kunzru by referring to Section 55 of the Canadian Constitution Act, but doesn’t go a step ahead in reading the timeline under Section 57. On almost similar lines, another member- Brajeshwar Prasad while explicitly supporting the need for conferring veto power on the Governor to veto bills on discretion, again cites Section 55 of the Canadian Act on the following logic-

“I want power to be vested in the hands of the Governor of vetoing unjust and unsound legislation. This provision occurs in the Canadian federation and I want this power in our Constitution having due regard to the facts of our political life. I feel further that if the governor has power to veto a Bill and the President has power to disallow a Bill, it will act as a potential check on disruptive legislative tendencies”. 

Shri Shibban Lal Saxena, another member of the house exactly takes note of this crucial point and vehemently contended for having timelines under Article 175 (Art 200). He adopts a practical approach by giving an illustration as to how in the absence of definitive timelines a single bill can be withheld by the Governor for over six months.

“Suppose a Bill is passed by the Assembly. It will go to the Upper House. It takes some time to be sent to the Upper House and then about two months in the Upper House. The Bill may be amended there. Thereafter the amended Bill comes back to the Assembly. The Assembly will then discuss it. A month may be taken over this. Then again it is sent back to the Council and there it will be considered again for about a month, so that on the whole it will be considered again for about a month, so that on the whole it will take about six months after it first becomes law. Now, power is given to the Governor to return the Bill with a message.

Taking into account this “snowball effect” and a vicious cycle that would emanate from pocket veto due to unquestionable discretion, he pressed for an amendment to Article 175 wherein the Governor should have power to send back a Bill only where there is no Second Chamber of the State legislature. Where there is a bicameral legislature in a state, according to him, the bill will be scrutinized by the second house, and there is no need for further Governor intervention. He goes a step ahead by fore sighing the exact partisan reality that we’re currently witnessing, in the following words-

“But it is quite possible that the party in power in the province may not be the same as the party in power in the Centre and the President may not be persona grata with that party. I therefore think that it will introduce a very wrong principle to give the Governor this power to go against the express wish of the Assembly and even of the council.”

A cumulative perusal of these discussions therefore shows that while the house was in favour of conferring discretion on the Governor and President in this aspect, that too citing Section 55 of the Canadian Constitution, they fail to take a comprehensive approach by failing to refer to Section 57 of the same Constitution, which prescribes a definite timeline of two year to ensure that the discretion is not unhindered or for indefinite time. And when members actually press for an amendment requiring timeline, without any substantive rebuttal as to the timelines, the Assembly dismisses such amendments. And the reality is now recurring posing serious questions of federalism and Parliamentary Democracy.

An Undesirable Precedent for Judicial Review over other Constitutional Functionaries

While the President and Governors are the two highest Constitutional authorities, there are various other Constitutional functionaries whose functioning and exercise of discretion also has equally serious repercussions on Electoral and Parliamentary Democracy. In the overall constitutional framework, the office of the Speaker occupies another crucial position who is empowered as a quasi-judicial authority under the Tenth Schedule, to decide anti-defection pleas, yet inherently political as a member of the ruling party. This structural ambivalence becomes especially critical when the Speaker’s inaction on disqualification petitions under the anti-defection law under the 10^th Schedule undermines the spirit of legislative integrity. A similar constitutional silence under the 10^th schedule involves absence of a timeline within which disqualification pleas are to be disposed of by the Speaker. And the consequence has also been the same, with speakers simply sitting on the anti-defection pleas filed by the opposition party for years long and by the time any decision is taken, the plea itself would get infructuous as the 5-year tenure of the defecting candidate would have ended by then! 

The larger constitutional question that arises is whether such “inaction”, despite the absence of a prescribed timeline stipulated in the Constitution, is justiciable, and whether courts under their writ jurisdiction can impose timelines on the speakers to dispose of anti-defection pleas. A landmark three-judge bench of the Supreme Court in Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, ruled that “inaction” of the Speaker to decide the petitions within a reasonable time will be subject to judicial review and direction can be issued to the Speaker to decide disqualification petition within a “reasonable time frame”, which can be, based on the specific facts, to a maximum of three months from the filing of the petition. Following this pragmatic precedent the Supreme Court two-judge bench led by the same Chief Justice, in a very recent verdict involving the inaction of Speaker of the Telangana Legislative Assembly while upholding the single-judge order of the Telangana High (which imposed a four weeks timeline), relied on the Keisham Meghachandra ruling to impose a three-month timeline to conclude the proceedings.

A careful analysis of the precedents over Speaker’s discretion and timelines herein (covered in my previous article) shows that Courts have moved from a narrower view of mere “reasonable timeline” (in earlier precedents like Kihoto Hollohan v. Zachillhu) to imposing fixed timelines based on the logic that time-bound action is of quintessence for the preservation of democratic values underlying the Constitution. However, the Constitutional bench in the present case simply without any substantive differentia distinguishes the functions of a Speaker acting as a quasi-judicial authority vis a vis a “gubernatorial function” that Governor’s exercise under Article 200. 

The test to determine whether timelines can be imposed in the presence of a silence within the text of the Constitution should not be based on the nature of function that the functionary is performing. It must be based on a consequentialist reading by looking at what are the repercussions on the democratic values underlying the very conferring of such a function on such authority by the Constitution. With great power should come greater responsibility. When the Constitution vests with the Governor a gubernatorial power to an extent that a bill cannot become a law unless assented by the Governor, then an equally important sense of responsibility vests on such authority to ensure a timely action is taken. The constitutional bench however by taking a contrary approach has thereby set a possible undesirable precedent if at all a challenge is made to imposing timelines on Speakers in the future.

The Need for a Principle of “Balanced Judicial Intervention” over “Limited Judicial Review”

The prolonged sitting of Governors over bills without assent, or the Speaker indefinitely delaying action on disqualification pleas, illustrates how procedural silence in the text of the Constitution can be weaponized to subvert democratic accountability. These instances underscore the necessity of a “principle of balanced intervention”- a framework that respects the autonomy of these constitutional offices while ensuring their fidelity to constitutional mandates. Critically, the issue is not one of procedure but of constitutional performance. Where the Speaker’s inaction results in a failure to exercise constitutionally-ordained jurisdiction, courts are justified in stepping in. The Constitution does not intend for such high offices to become shields for political delay. Judicial review, thus, becomes a necessary constitutional safety valve, ensuring that discretion and power vested in these high constitutional offices is subjected to the same Constitutional values. 

Taking inspiration from Gautam Bhatia’s reference to the need for executive accountability, there are three inevitables in deciding constitutional questions by the Constitutional courts- One that Governors are inherently partisan as they are Central Government appointees; Two that Speakers are equally partisan as they are effectively agent of the ruling party; Three, that horse trading is inherent in circumventing rigours of anti-defection. These distortions, while constitutionally opaque, demand a principle of balanced intervention- one that does not dictate political outcomes, but ensures that the inaction or abuse by constitutional functionaries does not corrode democratic processes.

It was such a murky interpretation when it came to deciding maintainability of a Presidential reference u/A 143 and using it as a tacit tool to bypass the stringencies of invoking a Review or a curative petition (addressed in an earlier article). This has now resulted in burying the pragmatism adopted by the divisional bench in Tamil Nadu judgment almost ten fathoms deep. It is undeniable and inevitable that questions over discretion of constitutional functionaries will come to courts in a much rampant frequency in the days to come and whether it will need a larger bench to overturn this 5-judge bench ruling puts the Indian Parliamentary democracy in a limbo, caught within the shackles of constitutional silences in the text of Articles 200 and 201.

In conclusion, constitutional governance requires more than formal office-holding; it requires active, timely, and impartial performance of constitutional duties. The inaction of constitutional functionaries particularly when motivated by partisan considerations, betrays the Constitution’s foundational principles. Judicial review, therefore, must not only test the legality of decisions but also scrutinize the “abdication of constitutional responsibility”. As India’s democracy matures, the courts must continue to walk the fine line between restraint and intervention, ensuring that constitutional silences are not exploited to mute democratic dissent. Hence, while the concept of “deemed assent” might be critiqued as an extreme and radical approach, a balanced judicial intervention by the prescription of a timeline is where an adequate line can be drawn that also respects the sacrosanct concept of separation of powers, because a law becomes a law only upon the assent of the Governor.

**Mokshith Bhyri is a Fifth-year Law Student from the NALSAR University of Law, Hyderabad, India.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.