Advisory Jurisdiction and Separation of Powers
21.11.2025
Advisory Jurisdiction and Separation of Powers
Context
Several Indian states, including Tamil Nadu, Kerala, and West Bengal, have faced governance issues where Governors delayed assent to bills passed by State Legislative Assemblies. The Constitution does not prescribe a fixed timeline for Governors to act, resulting in long delays of up to a year. These delays have led to Presidential reference to the Supreme Court under its advisory jurisdiction (Article 143) to clarify the powers and limitations of Governors.
Governor’s Options under Article 200
When a bill is passed by the State Legislature, the Governor may:
- Grant assent (approve the bill).
- Withhold assent (reject the bill).
- Return the bill for reconsideration by the legislature.
- Reserve the bill for the President’s consideration.
These options form the core of the Governor’s discretionary role within state governance.
Supreme Court’s Initial Action
- The Supreme Court initially invoked Article 142 to direct Governors to act “as soon as possible.”
- In a controversial move, the SC imposed a three-month time limit on Governors to grant assent.
- The SC even assumed, for practical purposes, that assent had been granted to pending bills, which raised concerns about violating the principle of Separation of Powers.
President’s Reference and SC’s Advisory Opinion (Article 143)
- Article 143 allows the President to seek the Supreme Court’s opinion on matters of public importance.
- The President referred questions regarding the Governor’s discretion and the SC’s earlier judgment.
Supreme Court’s Final Advice
- The SC cannot impose a fixed timeline on Governors or the President under Article 142.
- If a Governor withholds assent, reasons must be recorded.
- Judicial review is possible if a Governor indefinitely delays a bill; courts can direct a timeframe for a decision (e.g., 15 days) but cannot dictate the content of the decision.
- SC advice under Article 143 is not binding on the President, but if the President seeks advice again, the Court is obliged to respond.
Related Constitutional Provisions
- Article 141: Law declared by the SC is binding on all courts in India.
- Article 144: All civil and judicial authorities must act in aid of the Supreme Court.
Challenges to Federalism in India
India’s federal structure, which divides powers between the Union and States, is facing strains due to political and fiscal centralisation.
Key Challenges
|
Challenge Area |
Description |
|
Political Shift |
The rise of a dominant national party post-2014 has weakened regional parties, reducing states’ bargaining power. |
|
Fiscal Dependency (GST) |
States surrendered taxation powers under GST; delayed fund releases increase dependency on the Union. |
|
Fiscal Erosion (Cess/Surcharge) |
Central levies via cess/surcharge feed into the non-divisible pool, limiting resources for states. |
|
Scheme Implementation |
Central Sector and Centrally Sponsored Schemes often reduce states to mere implementing agencies. |
|
Political Targeting |
Governor delays in assenting bills or central fund halts (e.g., MNREGA) disproportionately affect opposition-ruled states. |
Implications
- Reinforces the delicate balance between State autonomy and Central oversight.
- Highlights the limitations of judicial intervention; courts can review indefinite delays but cannot force assent.
- Emphasises the need for transparent and timely decision-making by Governors to uphold legislative efficiency.
- Raises broader concerns about the centralisation of power in Union hands and its effect on cooperative federalism.
Conclusion
The interplay between Advisory Jurisdiction (Article 143), Governor discretion, and judicial review underscores the importance of separation of powers in India’s constitutional design. While the judiciary safeguards legality and prevents arbitrary delays, effective federal governance also requires political restraint, transparency, and timely action from the executive to maintain state autonomy and democratic functioning.