Presidential reference: Can't remain powerless, sit idle if one wing of democracy fails: Supreme Court

New Delhi: The Supreme Court on Thursday said the apex court, which is the custodian of the Constitution, cannot remain powerless and be forced to sit idle if one of the wings of the democracy fails in discharging its duties. 

A five-judge bench led by Chief Justice of India B R Gavai made this observation on the 10th day of the hearing on the Presidential reference. The court reserved its judgment after wrapping up the hearing, after detailed submissions from Attorney General R Venkataramani and Solicitor General Tushar Mehta.

“Whosoever high one be…as the custodian of the Constitution. I publicly say that I am a strong believer in the doctrine of separation of powers…judicial activism has to be there; it should not turn into judicial terrorism (or judicial adventurism). At the same time, if one of the wings of the democracy fails in discharging its duties, would the court, which is the custodian of the Constitution, be powerless and… to sit idle…," the Chief Justice said.

Mehta said that separation of powers is part of the basic structure of the Constitution, and that not just the court, the executive is also custodian of fundamental rights of the citizens, and likewise, the legislature is also custodian of the fundamental rights of citizens. 

He contended that issuing a mandamus on the legislative functions of a constitutional authority would violate the theory of separation of powers.

He submitted that for the last 50 years, assents to 90 per cent of Bills were given in one month, and if a direction is used by the apex court for the grant of assent, it would be directing the Governor to exercise his discretion in a particular manner.

Mehta contended that one constitutional functionary, which is the apex court, cannot issue a direction to another constitutional functionary, which is the Governor. 

"Issuing mandamus to a constitutional high functionary having discretion would violate the theory of separation of powers," Mehta contended.

The Solicitor General asserted that there cannot be any straightjacket timelines, too, and it all depends on the subject matter of the Bill. 

The Attorney General contended that flexibility to act must be given to the Governor under Article 200 of the Constitution.

On this, the bench asked, "Can the Governor withhold assent endlessly without sending a message?" 

The AG insisted that the Governor has the power to examine the bill’s constitutionality.

Mehta also sought modification of the April 8, 2025, judgment by a bench of Justices J B Pardiwala and R Mahadevan, which declared that the Tamil Nadu Governor’s decision to withhold assent to 10 bills was "illegal" and "arbitrary" and fixed a three-month timeline for the President to clear the bills. 

On May 13, 2025, President Droupadi Murmu made a reference to the top court to decide if timelines can be fixed through judicial orders.