On November 20, 2025, the Indian Supreme Court issued an advisory opinion on substantial questions concerning the nature and extent of gubernatorial power over state legislation. Although the Constitution clearly demarcates legislative powers between the Union and the states, state laws take effect only after receiving the Governor’s assent, an office nominated by the Union government.

Given this design, conflicts between Governors and state governments are almost inevitable, especially when different parties control the Union and the states. A recurring flashpoint is the Governor’s role once a bill is passed by the state legislature. Articles 200 and 201 authorize the Governor to assent to a bill, withhold assent, or reserve it for the President. Yet these provisions leave three critical questions unresolved: (1) Can the Governor withhold assent indefinitely and effectively paralyse state lawmaking? (2) Is there a time limit within which action must be taken? (3) What remedies exist if the Governor does nothing within a reasonable period?

These issues had recently arisen in a case decided in May 2025. Disagreeing with that ruling, the Court in the November advisory opinion held that the Governor’s powers under Articles 200 and 201 are discretionary and that courts cannot impose timelines for decision-making. In what follows, we analyse this advisory opinion and argue that it poses serious risks to India’s federal structure by enabling a de facto Union veto over state legislation. We also highlight the possible political motivations underlying the opinion and the troubling use of the advisory jurisdiction to unsettle a precedent.

The Ambiguities in Articles 200 and 201 and the Court’s May 2025 Decision

As noted above, Articles 200 and 201 contain significant textual gaps, largely premised on the expectation of virtuous constitutional conduct. Increasing partisan behaviour by Governors has, however, made judicial intervention necessary. The only interpretive guidance to answer the three questions lies in the proviso to Article 200, which states that the Governor may, “as soon as possible,” return a non–money bill for reconsideration. The phrase is undefined, and the proviso addresses only the action of withholding assent. There is no indication of the time within which assent must be granted or whether the Governor may simply sit on a bill.

These ambiguities posed difficult questions to the successful operation of the much-celebrated idea of “cooperative federalism.” Many instances were recorded where the Governors chose to sit on duly enacted bills, effectively preventing elected state governments from implementing their legislative programmes. Against this backdrop, the state of Tamil Nadu approached the Supreme Court for relief, and in May 2025, a two-judge bench answered these questions in a manner strengthening federalism, accountability, and the superiority of elected governments over a nominated Governor.

The Court held that Governors cannot exercise a pocket veto when a bill is forwarded to them. They must either grant assent, reserve the bill for the President, or return it to the legislature with their comments. Once the legislature re-passes the bill, the Governor is constitutionally bound to assent, offering a safeguard against repeated obstruction. Second, the Court held that all steps – assenting, withholding, reserving, and presidential consideration – must occur within one to three months, thereby objectively defining “as soon as possible” for the first time to ensure accountability and enforce “cooperation”. Lastly, it held that non-compliance with these timelines would invite judicial review and the issue of mandamus. The Court also affirmed its power to review the grounds on which a bill is withheld or reserved, though it limited this to the grounds of mala fide, arbitrariness, and reliance on extraneous circumstances. These are standards that the Court already uses for reviewing other executive actions of these Offices.

An Appeal in Disguise and a Quiet Overruling by the Court

The Union government, dissatisfied with the May ruling, returned to the Supreme Court, this time not through a review petition but through a presidential reference under Article 143, which empowers the President to “consult” and “obtain the opinion of the Supreme Court” on certain questions of law under the Court’s advisory jurisdiction. Given the nature of this power, it is generally expected that the Court will not use it to revisit an established position of law, particularly when a decision was handed down merely a few months back.

Instead of advising on the law as settled in May, the Court effectively reviewed and contradicted its own decision. First, and most dangerously, it opined that the power of the Governors and the President in deciding upon a state law is discretionary, and thus, they are neither bound by the aid and advice of the state council of ministers nor are their actions justiciable in a court of law. Further, the Court emphasized that, unlike other provisions of the Constitution, there is no express time limit mentioned under Articles 200 and 201. In such a circumstance, it is not open to the Court to impose any such limits on the two constitutional offices. Doing so would violate the idea of separation of powers.

The combination of these three factors: non-justiciability of the actions, the discretionary nature of the power, and the removal of judicially introduced time limits, has virtually amended the Indian Constitution by introducing a de facto “union veto” in the state lawmaking process. A Governor can now sit upon bills for an indefinite period, long enough to trample upon the legislative agenda of the elected government and hurt their future electoral prospects.

Moreover, in an absolutely political and unbecoming move, the Court explicitly hinted at how such a veto could be abused by the Governors, given the poor design of the Indian Constitution. As readers may recall, the Constitution mandates that the Governors give their assent to a Bill if it is returned to them after reconsideration by the legislature. However, no such direction is envisaged in case a Governor withholds the bill to refer it to the President, and therefore, they could perform this action of reserving the bill for the President any number of times. Having discussed this possibility, the Court stopped short of ruling such actions as unconstitutional, as if to indicate to the executive the constitutionally permissible ways for the further abuse of the gubernatorial powers.¹⁾

It is only ironic that the Court has justified the introduction of the idea of a union veto for the reasons of ensuring a “dialogue” between the union and state governments. The Court takes recourse to the logic of ensuring a dialogic process at multiple points in the judgment. For instance, it notes (and we submit, this was done in a full understanding of the political realities, but with an attempt to forego them for academic and naïve verbosity):²⁾

“Therefore, we are of the firm opinion that the reading of Article 200, which recognises both options – to grant assent, or reserve the Bill for the President – further strengthens, and increases the potential for the dialogic and consultative process that our Constitution values at its core, rather than retracting from it.”

At this stage, it is important to note that while destabilising the existing position of law in such a manner, the Court consciously retained one important aspect from the May 2025 decision: the power of judicial review. The Court clarified that while it can prescribe no time limits within the Governors and the President must take their actions, it can still exercise the power to intervene in case these constitutional officers sit upon the bills for an unreasonable period of time. This is a classic move of the Supreme Court, a hallmark of its decision-making style for many years. This order has ensured that an executive-favouring decision is rendered while equally guarding the expanded judicial review powers of the Court. However, unlike under the May 2025 decision, such review powers will not trigger automatically upon the expiry of the set time limits, but they would be exercisable at the discretion of the Court when it (read as those individual judges would be hearing the matter) considers that an “unreasonable” time has passed since the Governors or the President were required to make a decision. One must write only so much on the possibility of political influence and corruption in this setting.

The Show of Selective Urgency by the Court

This advisory opinion is also important from another perspective. Under Article 143 of the Constitution, the Court is not obliged to issue an advisory opinion when approached by the President. It is a discretionary power of the Court, and challenges were raised against the Court’s indulgence in this matter in the first place, particularly when its earlier decision of May 2025 had sufficiently answered all the questions referred for the Court’s opinion. Sidelining those objections, the Court noted,

“The questions referred by the Hon’ble President pertain to the very core, and foundational modalities of our constitutional machinery, that ensures the continuation of our republican democracy, and governance by elected representatives. That they are constitutionally significant, cannot by any measure, be overstated. This Court is empowered, and entrusted under Article 143, with the duty to answer such questions in service of the Constitution, and the people that have so adopted it. Judicial propriety, and institutional integrity requires that this Court answer the questions referred to it in the present proceedings.”

One cannot help but be appreciative of this position taken by the Court. At the same time, one cannot help but wonder why the same Court chooses to sit indefinitely on many other pending matters of equal and, perhaps even more, significance than this case. We particularly refer to the pending case about the law that has established an executive-favouring process for selecting the election commissioners in India. This law was introduced only to overrule an earlier decision of the Supreme Court that attempted to make the selection process slightly fairer, and has posed great dents to the confidence that the public holds in the integrity and independence of the Election Commission of India. The sheer urgency shown in overruling the May 2025 decision within a few months is evidence enough of the executive tilt of the current Supreme Court.

Concluding Remarks

This episode has exposed a deeper concern of judicial indiscipline in India, where the Court stretches or blurs the boundaries of its own constitutional limitations. Article 143 is crafted as a purely consultative power, not an avenue to revisit or revise binding precedent. Yet, by selectively relying on a few portions of the precedents while ignoring the clear caveats in those judgments, the Court has disrupted the structural separation between advisory and adjudicatory roles. This creates the impression of doctrinal coherence while, in fact, unsettling long-standing principles about the hierarchy of precedent and the finality of adjudicated disputes.

At the same time, the Court’s advisory opinion demonstrates how it can avoid overruling a prior decision while still diminishing its precedential force. Legally, the Court cannot overturn the May 2025 judgment through an advisory opinion unless in a review or a curative petition, which can be admitted only after meeting high standards. Yet by declaring portions of the May 2025 judgment as “erroneous,” recharacterizing a few of its conclusions as obiter, and reopening the underlying questions of law, the Court has effectively hollowed out the operative reasoning of that decision. The relief granted there nominally survives, but its doctrinal foundation does not. As a result, future benches may freely disregard the earlier judgment, marking a subtle but consequential weakening of its precedential value.

This advisory opinion, despite being a mere opinion and concerning two generally undiscussed provisions of the Constitution, has lots to say about the state of the Indian democracy and its institutions.