MK Stalin: Court’s ‘opinion’ will have no impact on ‘ruling’ in TN Guv’s case

The Supreme Court’s opinion on the Presidential Reference will have no impact on the 8 April, 2025 judgment in the case of State of Tamil Nadu vs. Governor of Tamil Nadu, asserted T.N. chief minister M.K. Stalin on Friday, a day after the apex court revealed the opinion tendered by it to the President.

Chief Justice Gavai had said in court, “We will only be expressing our view on the questions of law raised in the Reference, and not pronounce a judgment in the Tamil Nadu case”. The Constitution itself is however silent about whether an opinion given by the Supreme Court under Article 143 would overrule a judgment in the Tamil Nadu Governor case. However, Article 141 of the Constitution mandates that “the law declared by the Supreme Court shall be binding on all courts within the territory of India”.

The judgment of the Supreme Court being ‘binding’, states like Tamil Nadu, Kerala and West Bengal had argued, the Union government could have sought a review of the 8 April judgment if it was unhappy with it, but chose an ‘appeal in disguise’ through the Presidential Reference. The union government, however, may use the “opinion” of the Supreme Court as a weapon to seek a review of the 8 April judgment of the apex court delivered by Justice Pardiwala and Justice Mahadevan. If such a review petition is filed, the same two judges, Justices Pardiwala and Mahadevan, are expected to hear it.

The T.N. chief minister posting on X asserted that the Bench tendering the advisory opinion had reaffirmed that

a)            The elected government should be in the driver’s seat, and there cannot be two executive power centres in the State

b)           Constitutional functionaries must act within the constitutional framework — never above it.

c)            The Governor has no fourth option to kill the Bill or exercise a pocket veto (as was done by the TN Governor). He has not have the  option to withhold the Bill simpliciter.

d)           The Governor cannot indefinitely delay acting on Bills.

e)            In cases of prolonged, unexplained, and indefinite delay by the Governor in considering a Bill, states can approach the constitutional courts

“When a high Constitutional Authority breaches the Constitution, Constitutional Courts are the only remedy, and the doors of the Court must not be closed. This would undermine the rule of law in our constitutional democracy and encourage breaches of the Constitution by Governors acting with political intent,” Stalin posted.

A five-judge bench comprising Chief Justice of India BR Gavai, Justice Surya Kant, Justice Vikram Nath, Justice PS Narasimha and Justice AS Chandurkar opined that since the Constitution itself prescribed no timeline for Governors and the President in considering the Bills referred to them, it was ‘erroneous’ for the court to prescribe a timeline. “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," the Constitution Bench said.

However, the Bench rejected the Union Government's argument that the Governor can simply withhold the Bill without returning the Bill to the House. If assent to the Bill is withheld, then it must necessarily be returned to the Assembly with the communication that assent was being withheld. 

The Bench also opined that although the Governor ordinarily acts on the aid and advice of the council of ministers, under Article 200, the Governor exercises discretion as indicated by the use of the words "in his opinion" in the second proviso of Article 200. The Governor has discretion either to return the bill or to reserve the Bill for the President.

The discharge of Governor's functions under Article 200 is not justiciable, felt the Bench. However, “in a glaring circumstance of inaction, that is prolonged, unexplained and indefinite, the Court can issue a limited mandamus for the Governor to discharge his functions under Article 200 within a reasonable time-period without making any observation on the merits,” the Bench explained.

In its opinion the Bench also expressed the view that while Article 361 puts an absolute bar on judicial review of legislative action of Governors, it “cannot be used to negate the limited scope of judicial review that this Court is empowered to exercise in cases of prolonged inaction by the Governor under Article 200.

While the Governor enjoys personal immunity, the office of the Governor is subject to this Court's jurisdiction. There is however no question of a law made by the State Legislature coming into force without the assent of the Governor under Article 200, the Bench said in its opinion while pointing out that there was no concept of ‘deemed approval’ of Bills in the Constitution.