Sleeping on Bills

On 8 April 2025, the Supreme Court of India (“Court”) issued a landmark ruling addressing a pressing constitutional question: Does the Indian Constitution (“Constitution”) allow a Governor to simply take no action on a bill passed by the State Legislature? The Court’s unequivocal answer was no. It declared the Governor’s inaction on ten bills passed by the Tamil Nadu Legislative Assembly as “illegal” and “erroneous,” holding that the Constitution does not permit an “absolute” or “pocket veto”. In doing so, the Court reasserted the limits of gubernatorial discretion, set a time period, and took the extraordinary step of deeming the bills assented to under its Article 142 powers.

This ruling has sparked a debate among constitutional scholars and politicians over the balance of power between the Court and the other organs of democracy as envisaged in the Constitution. In this contribution, I argue that while the Court’s directions raise questions about constitutional structure, federalism, and the separation of powers, they also reflect an attempt to fill a constitutional gap. By instructing governors (and potentially the President), the Court shifts the constitutional balance and effectively enforces legislation through judicial decree.

The Constitution, bills, and the governor

Under Article 200 of the Constitution, once a bill has passed both Houses of a State Legislature, the Governor must choose one of three actions: (1) assent to the bill; (2) withhold assent to the bill; or (3) reserve the bill for Presidential consideration. Until the bill is passed by the State legislature and receives the assent of the governor, it does not become an act and thus lacks the force of law. Notably, the Constitution does not specify a timeframe for this decision

Between January 2020 and April 2023, the Assembly of the State of Tamil Nadu enacted and forwarded 12 bills to the Governor. However, the Governor failed to act on any of the bills for over three years. Only after the State filed a writ petition before the Court did the Governor respond, withholding assent to ten bills and reserving two for the consideration of the President. When the Assembly then reenacted the ten withheld bills, the Governor forwarded them all to the President. Since then, the President assented to only one, rejected seven outright, and left two pending.

Such gubernatorial deadlock is not unique to Tamil Nadu. It is a growing phenomenon in India, reported in Chhattisgarh, Punjab, Kerala, West Bengal, Karnataka, and Rajasthan, raising broader constitutional concerns about the abuse of executive discretion in the Indian federal structure.

The Supreme Court on gubernatorial action

The Court’s decision is remarkable not only for its outcome but also for its doctrinal development. The Court held that the Governor cannot indefinitely withhold assent or remain silent. Inaction is not among the constitutionally permissible responses under Article 200. The Court rejected the notion of an “absolute veto”, emphasizing that if a Governor withholds assent, they must return the bill to the legislature “as soon as possible” and cannot simply prevent the bill from proceeding. It even prescribed specific timelines for gubernatorial action on bills, thus expanding the scope of judicial review for a Governor’s actions. “As soon as possible” (“asap”) means that the Governor must take action within one month when following the Council of Ministers’ advice, or three months when acting contrary to their advice.

The Court emphasised that the Governor must act in accordance with the aid and advice of the State’s Council of Ministers, with limited exceptions as granted in Article 200 itself, related to High Court and Supreme Court powers. In recognizing the Governor’s failure as a constitutional breach, the Court deemed ten bills in question assented to using the Court’s powers under Article 142 and thereby overriding any subsequent President interventions. The Court further established that once a bill is returned and reconsidered by the state legislature, the Governor cannot reserve it for the President’s consideration, except in rare cases involving substantial new changes.

Additionally, the Court established that in cases of unjustified delay, a State Government may seek a writ of mandamus, providing a legal remedy against potential gubernatorial obstruction. The Court stressed that Governors must act as “friends, philosophers, and guides,” facilitating state governance rather than obstructing it. They must respect parliamentary democracy, the will of the people expressed through the elected representatives forming part of the legislature and be guided by their constitutional oath rather than political expediency. Justice Pardiwala, authoring the judgment, quoted B.R. Ambedkar’s observation that the quality of a constitution depends on those implementing it, thereby underlining the critical importance of constitutional authorities acting with wisdom, integrity, and a commitment to democratic principles.

“Asap” means “ASAP”

The Court’s review of gubernatorial inaction represents what some call “constitutional synthesis,” the judicial integration of seemingly disparate constitutional elements into a coherent whole. The vague term “as soon as possible” in Article 200 had created a gray zone in which Governors simply “slept on” legislation, prompting the need for “creative judicial interpretation.” This practice of “sleeping on” legislation effectively granted governors an informal veto power that the Constitution never explicitly provided, disrupting the intended balance between legislative and executive authority. Faced with this constitutional crisis, the Court had to choose between strict textual interpretation and preserving the Constitution’s structural integrity.

Thus, the Court’s intervention represents “representation-reinforcing” judicial review, wherein the Court’s step in not to impose their policy preferences, but to repair breakdowns in democratic processes. The courts act as constitutional mechanics rather than policy architects, intervening only when the democratic machinery has broken down and preventing elected representatives from effectively representing their constituents. In this case, the obstruction by the Governor of democratically enacted legislation represents precisely such a breakdown, wherein the democratic will expressed through the legislature was being systematically frustrated through procedural manipulation rather than legitimate constitutional means.

This approach reflects broader tensions between constitutional text and constitutional practice, where literal interpretations can produce outcomes that contradict the document’s structural design. By establishing reasonable time limits for gubernatorial action, the judiciary preserved both legislative authority and executive discretion while preventing constitutional language from being manipulated to subvert the system’s fundamental design. Hence, the Court’s interpretation of “asap”, to require gubernatorial action within a clear timeframe, builds a constitutional, “fit,” creative bridge between Article 200 and the broader constitutional principle of democratic accountability, however, it is only a band-aid on a wound that needs deeper and longer-term treatment.

Deemed assent

The Court’s embrace of “deemed assent” for any bill left unanswered beyond three months has been widely criticised for effectively adding a fourth option to Article 200’s three express possibilities. Critics argue that inventing an “automatic assent”-mechanism strays into constitutional amendment, a power reserved for Parliament under Article 368. Such criticism, however, fails to appreciate the necessity of the “passive virtues” in constitutional adjudication, where practical remedies must be fashioned for dysfunctional constitutional gaps. (See, Bickel and Gunther) Yet the “constitutional minimalist” impulse behind this ruling lies in its “structural interpretation”. Reading Article 200’s “asap”- requirement alongside overarching democratic norms to enforce provisions that text alone cannot. In doing so, the Court fulfilled its institutional responsibility to enforce constitutional promises that would otherwise be obstructed and thereby effectively rescued democratically enacted legislation from constitutional limbo caused by bad-faith gubernatorial obstruction. While critics may legitimately question the creation of new constitutional mechanisms, the alternative – allowing indefinite executive stonewalling to nullify legislative will – would represent a far greater departure from constitutional design and democratic principle.

Filling “constitutional black holes”

By asserting its power to issue mandamus even against the President, the Court undertook what scholars call “gap-filling”, a judicial elaboration that fills structural gaps in constitutional design. The constitutional texts, which inevitably contain what are called “blank spaces,” require judicial elaboration to maintain systemic functionality. The principle of “normative constitutionalism” distinguished between “nominal” constitutions (existing on paper but lacking practical force) and “normative” constitutions (effectively constraining all governmental powers). By demanding that even the highest constitutional offices remain subject to constitutional discipline, the Court advances normative constitutionalism rather than allowing certain offices to operate in constitutional “black holes.” The Court’s willingness to review presidential actions on referred bills exemplifies such implementation. And its willingness to issue mandamus against governors doesn’t represent judicial overreach. This exercise of “countermajoritarian” function protects democracy from its own institutional weaknesses by ensuring that no office may operate in a constitutional vacuum.

Should we call it “innovative constitutionalism”?

The three directions discussed above collectively exemplify what may be called “innovative constitutionalism”; constitutional development through principled interpretation rather than formal amendment. The theory of “framework originalism” underpins this approach: constitutions establish basic structures that require ongoing interpretation to address new challenges. The vagueness in Article 200 of the Constitution, specifically the ambiguous term “asap” illustrates “constitutional construction zones”, an area of “constitutional underdeterminacy”, that requires principled judicial resolution.

By establishing specific guidelines and a timeframe for the governor’s action, the Court has engaged in legitimate constitutional construction rather than a breach of its power.