The Supreme Court on Wednesday questioned whether elected governments could be placed at the “whims and fancies” of a governor who can simply withhold assent to bills without returning them to legislatures, Live Law reported.

A bench of Chief Justice BR Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and AS Chandurkar has been hearing arguments on a reference made to the court by President Droupadi Murmu about its April 8 ruling that set timelines for governors and the president to grant assent to bills passed by legislatures.

The court had issued a notice on July 22 to the Centre and all state governments on the reference.

During the hearing on Wednesday, Solicitor General Tushar Mehta, representing the Centre, told the bench that the governor had four options when it came to granting assent to bills as per Article 200 of the Constitution, Live Law reported.

This included granting assent, withholding assent, reserving the bill for the president’s consideration or returning the bill to the Assembly.

If the governor says that he is withholding the assent, then it means that the bill “dies”, Mehta said. He added that the governor does not have to return the bill to the Assembly for reconsideration if assent is withheld.

“According to you, withholding means the bill falls through?” Live Law quoted Gavai as saying. “But then, if he does not exercise the option of resending for reconsideration, he will withhold it for time immemorial.”

In response, the solicitor general said that the Constitution itself had given that discretion to the governor.

“Are we then not giving total powers to the governor to sit in appeals?” Live Law quoted the chief justice as replying. “The government elected by majority will be at the whims and fancies of the governor.”

The bench also said that the governor would have to “declare” or communicate his decision on a bill in any case and not withhold assent without providing a reason, Bar and Bench reported. It further said that the central point of the debate would be about the meaning of “withholding” and to see whether it meant temporary or permanent.

On the question about when a governor could withhold assent, the solicitor general said that this would be when a bill has provisions that violate fundamental rights or are not desirable.

The power to withhold is to be used rarely and only in the first instance as it leads to the death of the bill, he added.

“Governor is not just a postman,” Bar and Bench quoted Mehta as saying. “He represents Union of India, appointed by the president. The president is elected by entire nation by way of entire election and that is also a way of democratic expression.”

The court, however, noted that even when the governor withholds the assent, the “political process” could knock on his door and he can send the bill back for reconsideration.

“But to say that when first time he says ‘I withhold, the matter comes to an end’. It can’t be like that,” Bar and Bench quoted Narasimha as saying.

The hearing will continue on Thursday.

The Supreme Court’s April 8 ruling came on a petition filed by the Tamil Nadu government after Governor RN Ravi did not act on several bills for more than three years before rejecting them and sending some to the president.

The court held that governors must decide on bills within a reasonable time and cannot delay indefinitely under Article 200. Similarly, the president must act within three months under Article 201, and any delay beyond that must be explained and communicated to the state government. Both provisions outline the process of assent to bills by governors and the president.

The judgment had also introduced the concept of “deemed assent” in cases of prolonged inaction, allowing pending bills to be considered approved.

In May, Murmu made the reference to the court under Article 143(1) of the Constitution with regard to its April 8 ruling.

Article 143(1) allows the president to ask for the opinion and the advice of the court on matters of legal and public importance.

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