When Governors Block Democracy

**Ritik Gupta 

The ongoing Presidential Reference represents a constitutional moment of profound significance. On 13 May 2025, President Droupadi Murmu invoked Article 143 to seek the Supreme Court’s advisory opinion on fourteen questions concerning gubernatorial and presidential assent powers under Articles 200 and 201. As interesting as it seems, the Reference cannot be viewed in isolation from the judgment in State of Tamil Nadu v. Governor of Tamil Nadu (‘Tamil Nadu case’) that preceded it by mere weeks. While the Reference addresses the vast majority of facets observed in the case, it nowhere makes any explicit mention of the judgment itself.

In this landmark (and controversial) ruling, the Supreme Court set timelines for gubernatorial action and rejected any ‘pocket veto’ or ‘absolute veto’ by Governors. The Court also invoked Article 142 to deem assent to the pending bills of the Tamil Nadu Legislative Assembly.

A month after this judgment came the Presidential Reference. It emerges as both consequence and catalyst of a deeper constitutional malady. My fundamental argument is that the Supreme Court’s intervention in the Tamil Nadu case represents constitutionally justified and democratically essential judicial innovation.

Further, when constitutional branches exploit textual loopholes to obstruct democratic governance, courts must fill constitutional silences with an interpretation that protects, rather than undermines, democratic values. These arguments develop through several dimensions. First, legitimate constitutional provisions become tools of systematic delay, revealing the mechanics of procedural obstruction. Second, there has been a historical shift from consensus-based federalism to competitive partisanship that creates conditions for such abuse. Third, theoretical foundations such as constitutional morality, living constitutionalism, and the complete justice doctrine justify extraordinary judicial responses when conventional remedies prove inadequate. Fourth, comparative federal experience demonstrates the need for mechanisms that prevent obstruction by appointed executives. Finally, the Presidential Reference tests whether constitutional democracy can evolve while preserving essential democratic principles.

The Anatomy of Procedural Paralysis

This constitutional crisis centres on two pivotal articles that govern the relationship between state legislatures and executive authorities. Article 200 empowers Governors with three specific options when bills reach their office: grant assent, withhold assent, or reserve bills for presidential consideration. The provision includes a crucial temporal requirement – actions must be taken ‘as soon as possible’ – but provides no specific timeline or enforcement mechanism.

Article 201 complements this framework by granting the President authority over bills reserved by Governors. The President may assent, withhold assent, or return them to state legislatures for reconsideration within six months. Together, these provisions create a system of executive oversight over state legislation that reflects India’s quasi-federal character.

The Constituent Assembly debates show why timelines and reasons matter. The Chairman of the Drafting Committee moved an amendment so that in bicameral states, the Governor could return a bill for reconsideration, but only on ministerial advice. This limited misuse, and the Assembly accepted it, showing clear intent to restrain personal discretion in assent processes.

However, the Tamil Nadu case exposed critical ambiguities within this framework. Between January 2020 and April 2023, the Tamil Nadu Legislature enacted and forwarded 12 bills to the Governor for assent under Article 200. Despite the current Governor, R.N. Ravi, taking office in November 2021, no action was taken on these bills until October 2023, creating a significant constitutional deadlock.

The action was taken only after the State of Tamil Nadu filed a writ petition in the Supreme Court against the absolute discretion of the Governor. This represented more than administrative sluggishness. The bills trapped in constitutional limbo covered diverse governance areas – state universities, cooperative societies, and administrative reforms. Yet all shared the same fate: indefinite postponement without justification.

This pattern reflected systematic obstruction, not legitimate deliberative processes that might delay particular bills based on content or complexity. Here, merit became irrelevant as political calculation determined everything. The phrase ‘as soon as possible’ in Article 200 admitted of multiple interpretations, creating space for indefinite delay.

The division bench consisting of Justices Pardiwala and R. Mahadevan addressed these ambiguities through judicial construction, establishing three distinct timelines: one month for bills processed with ministerial advice, three months when acting contrary to such advice, and one month for re-enacted legislation. This judicially constructed framework sought to balance gubernatorial discretion with legislative efficiency while preventing abuse of constitutional authority.

The Governor’s conduct created what scholars might recognise as institutional deadlock. Democratic processes entered the constitutional machinery but could not emerge, transforming electoral mandates into administrative discretion exercised without temporal limits or democratic accountability. Tamil Nadu’s elected representatives could legislate, but their legislative will disappeared into a gubernatorial void.

Citizens who voted for specific policies found those policies held hostage by an unelected appointee whose constitutional role was meant to facilitate, not frustrate, democratic governance. Interestingly, the expression ‘in his discretion’, found in Section 75 of the Government of India Act, 1935, was consciously left out in the drafting of Article 200. This exclusion reflected a deliberate constitutional design to divest the Governor of any discretionary authority in matters of assent to state legislation.

The Supreme Court recognised that conventional remedies can be meaningless against such sustained bad faith. A simple mandamus would not suffice against an official who had repeatedly disregarded constitutional obligations over the years. Only an extraordinary intervention could break this deadlock. The Court’s response – temporal guidelines combined with a carefully used ‘deeming assent’ mechanism – represented judicial innovation born of constitutional necessity when normal processes faced systematic subversion.

From Consensus to Constitutional Warfare

Understanding why judicial intervention became necessary requires examining Indian federalism’s transformation from consensus-based cooperation to competitive partisan conflict. This evolution exposed structural vulnerabilities in the gubernatorial system that remained hidden during earlier periods of political alignment of the Centre and the States.

In the early decades after independence, Congress’s dominance produced political consensus across the federal levels. Constitutional ambiguities remained theoretical when a single party controlled both the Centre and the states. Governors appointed by Congress rarely found themselves in conflict with state governments.

The 1990s changed this landscape. Coalition politics emerged, and regional parties asserted themselves. These developments challenged the Centre’s traditional dominance and created new dynamics that the colonial-era gubernatorial system struggled to accommodate. Governors began facing real tensions between constitutional obligations as state executive heads and political loyalties as central appointees.

The Constitution provided limited guidance for resolving these tensions, which the framers did not anticipate. This transformation explains the proliferation of gubernatorial conflicts across states where opposition parties control governments while facing Governors appointed by the Centre.

Similar confrontations occurred in West Bengal, Kerala, and Punjab, where the governments were not aligned with the Centre. These revealed not isolated incidents but recurring challenges to federal democratic governance. As political consensus broke down, judicial intervention became necessary and inevitable, as courts were forced to actively enforce constitutional obligations.

The Tamil Nadu case thus represented the culmination of this broader transformation. What was once inconceivable became tactically valuable under contemporary polarisation that weakened informal constraints on constitutional conduct.

Constitutional Morality and the Democratic Imperative

Dr B.R. Ambedkar’s concept of constitutional morality provides a theoretical foundation for understanding the Court’s intervention as necessary rather than problematic. Constitutional morality requires institutional authority to serve constitutional purposes rather than defeat them through technical manoeuvres.

This principle transcends literal textual compliance to encompass underlying constitutional values – democracy, federalism, equality, and justice – that give the text its animating purpose. The Tamil Nadu case showed constitutional morality’s protective function when properly applied to preserve democratic governance.

Governor Ravi’s systematic retention of bills violated constitutional morality not only because it exploited silence on the timeline for assent, but also because it defeated democratic purposes that Articles 200 and 201 were designed to serve. His conduct transformed constitutional provisions from instruments of democratic facilitation into tools of obstruction. This undermined the deeper constitutional commitment to representative government and cooperative federalism.

However, constitutional morality cuts both ways. It can serve progressive, emancipatory functions – protecting minority rights or striking down discriminatory practices. Yet it can also be instrumentalised to justify authoritarian measures when deployed without adequate safeguards.

The key distinction lies in whether constitutional morality strengthens or weakens democratic governance, expanding or contracting space for democratic participation. Here, the Court’s intervention served constitutional morality by preserving rather than undermining democratic governance.

Establishing temporal guidelines gave effective meaning to ‘as soon as possible’ and prevented abuse that would have rendered the phrase a constitutional nullity. The ‘deeming assent’ mechanism addressed sustained non-compliance that ordinary remedies could not reach. This demonstrated how constitutional morality sometimes requires innovative judicial responses to preserve constitutional integrity against systematic institutional abuse.

Living Constitution and Adaptive Interpretation

The Constitution’s character as a living document offers additional justification for the Court’s intervention in the Tamil Nadu case. Living constitutionalism entails interpretation of provisions that serves their underlying purposes in changing circumstances rather than allowing rigid literalism to enable federal obstruction.

This proves particularly necessary when bad faith converts governance tools into obstacles. The framers deliberately chose the phrase ‘as soon as possible’ over fixed numerical deadlines, reflecting a preference for constitutional flexibility to allow reasonable deliberation while still obliging prompt governmental action.

However, this flexibility was intended to serve rather than defeat constitutional purposes. When functionaries exploit interpretive flexibility to frustrate those purposes, adaptive interpretation becomes necessary. The Court’s temporal guidelines represented faithful constitutional interpretation rather than judicial legislation.

They gave practical meaning to language that would otherwise be drained of effect, while preserving the balance between flexibility and accountability that the framers intended. This approach aligns with worldwide comparative federal practice, where courts adapt interpretation to prevent procedural manipulation.

Consider the alternative. Rigid literalism that permits indefinite delay would make ‘as soon as possible’ meaningless. Constitutional provisions must have effective, not nugatory, meaning. The Tamil Nadu case thus represented constitutional interpretation at its most essential function – preserving governance against systematic subversion while serving enduring values in a changed political context.

Article 142 vis-à-vis Separation of Powers

Article 142’s ‘complete justice’ mandate empowers the Court to invent remedies when faced with a constitutional crisis so unusual that normal judicial processes cannot effectively address it. The ‘deeming assent’ step addressed a crisis where conventional remedies would likely fail.

The record showed sustained bad faith and deliberate non-compliance over multiple years. Traditional approaches – mandamus, declaratory relief, or writ jurisdiction – would have been inadequate against an official who consistently showed a willingness to ignore constitutional duties. Only a unique remedy could break the deadlock and restore normal democratic functioning.

Critics who questioned judicial substitution of executive functions misunderstood both the crisis and Article 142’s purpose. When constitutional offices run from their responsibilities, judicial intervention becomes necessary to maintain the democratic order of the State. The provision exists for exactly such emergencies.

The Presidential Reference frames the separation of powers as an obstacle to judicial intervention in gubernatorial matters. Separation of powers requires that each branch of government operate within constitutional bounds while serving the overall constitutional system.

However, when one branch systematically frustrates constitutional governance through procedural obstruction, other branches must intervene to preserve systemic integrity. Therefore, the Court’s intervention preserved rather than violated the separation of powers by ensuring that branches operated within proper bounds rather than exploiting textual loopholes to defeat fundamental purposes.

The alternative – permitting indefinite obstruction in the name of formal institutional respect – would have resulted in constitutional paralysis disguised as principled restraint.

Comparative International Analysis

The Westminster parliamentary system, which India inherited and adapted, rests on a fundamental principle: appointed heads of state exercise ceremonial rather than obstructive functions. India’s gubernatorial system violates this principle by creating appointed officials with genuine obstructive capacity.

Professor Richard Herr’s analysis of Westminster adaptation in Pacific states reveals the dangers of inadequate institutional transplantation. When Westminster institutions are adopted without their supporting conventions and safeguards, they can become instruments of institutional conflict rather than democratic governance.

India’s gubernatorial system portrays this problem: formal Westminster structures without Westminster constraints on discretionary authority. Unlike the United States, where state Governors have independent electoral legitimacy, or Germany, where federal coordination occurs via institutional mechanisms like the Bundesrat, India employs centrally appointed Governors who exercise state executive functions.

This hybrid model reflects historical compromise during constitutional drafting but creates inherent tensions in modern federal governance. The Sarkaria Commission recognised these problems decades ago, recommending consultation mechanisms and tenure protections that remain largely unimplemented.

Comparative constitutional law also provides valuable perspectives on the justiciability of executive discretion in federal systems, one of the critical issues in both the Tamil Nadu case and the ongoing Presidential Reference. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the US Supreme Court rejected presidential claims of inherent executive authority, establishing that constitutional powers must be exercised within constitutional boundaries.

Similarly, the High Court of England and Wales in R v. Secretary of State for Foreign Affairs, ex parte World Development Movement (1995) held that even prerogative powers remain subject to judicial review when exercised improperly. The South African Constitutional Court in Government of the Republic of South Africa v. Grootboom (2001) held that courts may issue mandatory orders to executive authorities when constitutional obligations are systematically ignored.

These precedents suggest that extraordinary judicial intervention becomes constitutionally permissible when normal processes break down due to systematic obstruction. The key criterion is whether such an intervention preserves rather than undermines constitutional governance.

Conclusion

The Tamil Nadu judgment was controversial in method but necessary in purpose. The Presidential Reference, therefore, raises fundamental questions about judicial authority. Can courts impose timelines where constitutional text remains silent? Does Article 142 permit the substitution of executive functions? Is the exercise of constitutional discretion by the Governor under Article 200 justiciable?

At the same time, the Reference opens the risk of establishing a precedent that could immunise future violations and constitutional loopholes from judicial scrutiny. Though the Court has affirmed in one of its hearings that its view of the law in this Reference would be strictly advisory in nature, it might tend to become a precedent for future instances.

The timing suggests awareness of competing considerations. Seeking advisory opinion rather than challenging specific decisions enables constitutional clarification without direct confrontation. Yet the substantive questions could constrain future judicial responses to systematic abuse, potentially emboldening violations by suggesting judicial powerlessness to address them effectively.

The Chief Justice B.R. Gavai-led Constitution Bench must now balance competing imperatives: preserving judicial authority to act in genuine constitutional crises while maintaining appropriate institutional boundaries. The Court must choose an evolution that serves democratic values through legitimate constitutional means.

This Reference will determine Indian federalism’s trajectory for generations to come. Lastly, the Constitution should not be treated as a technical manual by governments but rather as a charter of democratic governance.

**Ritik Gupta is a New Delhi-based advocate practicing at the Supreme Court of India.His interests lie in constitutional law, criminal law, human rights, which he examines through the lens of legal policy.He writes with the aim of contributing to debates on legal reform, focusing on constitutional ambiguities, gaps in statutory design, and the role of courts in safeguarding democracy.

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