Pocket Vetoes and Federal Friction: Judicial Review of Gubernatorial Inaction
- Ayush Kumar
- Mar 23
- 8 min read
Authored by Manav Agrawal, completed B.A., LL.B. (Hons.) in the year 2026 from Chanakya National Law University, Patna
Introduction
The Indian Constitution, as put forth by the Constituent Assembly, is founded on a fine balance between federalism and what we see as constitutional morality among its highest functionaries. At the centre of State-level executive and legislative interaction is the Governor, who is mandated to serve as the link binding the Union and the States. But in recent years, we have seen a great deal of constitutional gridlock in state legislatures, particularly in opposition-ruling states like Kerala, Tamil Nadu, and Punjab. This friction is mainly from the use, or rather the non-use, of the Governor’s powers, which Article 200 of the Constitution provides. By indefinitely sitting on bills passed by state legislatures (a practice commonly known as the 'pocket veto'), which in turn has led governors to put to rest the legislative functions of the states.
For one second, it seemed as if the judiciary had found a way out of this structural dilemma. But the legal terrain has been completely altered; the main question now is not just whether the Governor can indefinitely hold bills, but whether the judiciary can constitutionally compel a coequal branch of government to operate within certain timelines. A provision that was supposed to be flexible in the constitutional makers’ vision has, in actual fact, become an instrument of democratic subversion. This democratic subversion has occurred through a constitutional loophole created by the framers, which has become an instrument of democratic subversion. The constitutional courts have to find a way out of this institutional stalemate by assessing the scope of their powers in Article 200.
The Constitutional Design and the Silence of Article 200
Article 200 sets out the process which is to be followed when a Bill is put forward by the Legislative Assembly of a State and presented to the Governor. It reports that the Governor may assent to the Bill, withhold assent, or reserve the Bill for the President’s consideration. The first addendum to the Article also introduces an element of urgency, stating that the Governor may "as soon as possible" after the presentation of the Bill return it (if it is not a Money Bill) with a message requesting the House's reconsideration of the Bill or any of its elements.
Read Also - 'The Role of Governors in Centre-State Relations: Unraveling the Complex Web of Influence'
The key issue in the present constitutional debate is the phrase "as soon as possible". Unlike Money Bills, which have set time frames, the Constitution does not specify a specific time frame of 14, 30, or 60 days, for instance, within which the Governor has to act. What we see in the Constituent Assembly debates is that this omission was not an oversight but a deliberate choice rooted in the idea that high-level constitutional functionaries would live up to the spirit of the constitution. Dr. B.R. Ambedkar and T.T. Krishnamachari emphasised that the Governor is a constitutional head who is to act on the advice of the Council of Ministers; they also put across that the power to withhold assent is to be used only in rare and exceptional circumstances and not to be taken out of the question as a political tool.
However, this textual silence has given birth to the 'pocket veto'. By neither assenting, rejecting, nor returning the Bill, a Governor can crash a duly enacted piece of law into a state of suspended animation. In a parliamentary democracy like ours, where the legislature represents the will of the people, allowing a nominated head of state to unilaterally halt the legislation through sheer inaction represents a severe deviation from the original constitutional design.
Weaponisation of Silence: A Threat to the Basic Structure
Federalism in India is not just an administrative tool; it is a foundational pillar. In S.R. Bommai v. Union of India, the Supreme Court held that federalism is part of the Constitution's basic structure. The States are not the Union’s appendages but are supreme in the fields which the Seventh Schedule allotted to them. The legislative competence granted to the state legislature under Article 246 is a display of this federal autonomy. When a Governor uses a pocket veto, he in fact strikes at this autonomy. The State Legislature puts forth its democratic capital; it debates policies and passes laws which address state-specific issues - be it public health, education, or agrarian reform. By withholding assent to bills put forward by the State indefinitely, the Governor in fact nullifies the competence of the State’s legislature and leaves the State Assembly without real power.
Furthermore, the above practice violates the principle of constitutional morality, which holds that those who govern should not act against the Constitution's broader goals. In the case of NCT of Delhi v. Union of India, the Supreme Court held that the powers conferred on the appointed constitutional heads should not be stretched to the extent that they eclipse the representative character of the Government. The weaponisation of the intended timeline under Article 200 is a means for the Union to intervene in State administration by bypassing the strict constitutional checks required to impose President’s Rule under Article 356. Therefore, the pocket veto is not just a procedural issue; it is one of the biggest threats to the basic structure of the federalism doctrine.
The Pendulum of Judicial Review: From Punjab to the 2025 Clashes
The basis of the traditional defence of Judicial Intervention in the Governor’s powers is provided in Article 361 of the Constitution, which confers immunity on the President and the Governor from any court challenge to the exercise and performance of their official duties. For years, this immunity was a foolproof shield which put gubernatorial discretion off the radar of judicial review. As a matter of fact, Indian constitutional law has shifted away from a culture of absolute immunity toward a new culture of justification. In the case of Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh, it was highlighted that the Governor’s discretion under Article 163 is limited and subject to judicial review if exercised arbitrarily or mala fide on legal grounds.
From there, the Constitutional Courts began to distinguish between the 'exercise' of power and its complete 'failure' or 'refusal'. A landmark point of divergence occurred in the case of State of Punjab v. Principal Secretary to the Governor of Punjab (2023), in which the Supreme Court ruled on the sitting of a bill. The Supreme Court remarked, "The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever."
The bench stated that the phrase "as soon as possible" was a mandate in the Constitution for swift action, and hence, it could not be disputed that a governor who refused to give his assent would be under a constitutional obligation to return the bill to the legislature for consideration and thereby nullifying the fiction of the indefinite pocket veto.
Unfortunately, the Punjab judgment lacked a vital factor in determining whether there was a failure of power: it did not establish how soon "as soon as possible" was, thus paving the way for political obstructionism rather than non-action. The resultant struggle for supremacy in 2025 destroyed the facade of solving the problem.
In April 2025, the Supreme Court attempted to institutionalise hard temporal guardrails in State of Tamil Nadu v. Governor of Tamil Nadu. Recognising that vague mandates of promptness were being exploited, the Division Bench prescribed a strict judicial timeline: a Governor was granted one month to act on a bill when following the aid and advice of the Council of Ministers, and a maximum of three months if they chose to act outside that advice, such as returning or reserving the bill. Crucially, the Court ruled that "withholding assent" is a temporary deferral to initiate structural dialogue rather than a permanent absolute veto, explicitly holding that a Governor cannot reserve a bill for the President after it has already been re-passed by the state legislature.
Nevertheless, this strict policy did not last long. In November 2025, the Five-Judge Constitution Bench delivered an authoritative advisory opinion in In re: assent, withholding or reservation of bills by the Governor and the President of India on the Presidential Reference regarding Articles 200 and 201, substantially rolling back the guidelines set out in Tamil Nadu. The Constitution Bench decisively rejected the imposition of judicial deadlines, stating that the absence of a particular period is the deliberate "elasticity sense" that the drafters sought to secure the separation of powers. It was established that the judiciary cannot "declare deemed assent to a bill on account of executive lethargy." Whereas insisting that the Governor should not endlessly wait for the decision and should not take any action, the Bench stressed that the Governor has "a narrow zone of discretion in his opinion" to either send the bill back or keep it reserved with the President. It appears that the law has reverted to its complicated grey area again; judicial involvement alone cannot neatly cut this federal Gordian knot.
Beyond Judicial Band-Aids: The Path Forward
The need for a definitive solution to the Punjab matter, compounded by the dramatic reversals of 2025, calls for a structural approach. The Supreme Court’s interpretation of the 10th Schedule, in the first instance, provided a good analogy. Under the 10th Schedule, the Speaker serves as a tribunal of sorts to determine petitions for disqualification. As per Article 200, like in the 10th Schedule initially, there was no provision for the Speaker to decide the petition in a definite time frame. This had led to serious abuse by politicians. But in Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly, the Supreme Court held that the Speaker should decide the petition within a "reasonable period," defined as three months.
The Presidential Reference of 2025 points to a major jurisprudential problem in applying the same principle to Article 200. While the Speaker serves as a quasi-judicial tribunal under the 10th Schedule, which allows for judicial review, the Governor is a coequal head of the State Executive. Imposing a judicially mandated deadline on the Executive would run counter to the basic constitutional principle of separation of powers.
Since the Constitution Bench has ruled out judicially dictated timetables, it becomes clear that the answer cannot be judicial but structural and legislative in nature. This is because the systemic weakness is that the entire office of the Governor is at the pleasure of the Union Executive, which means governors incur no institutional cost for holding up legislation while garnering substantial political benefit from their appointing authority.
To preserve the power balance between the Centre and the states, India should move towards structural safeguards rather than temporary judicial protection. India now has to implement the long-overdue recommendations of the Sarkaria Commission and the Punchhi Commission and bring about a formal constitutional or legislative amendment to Article 200, setting a six-month time limit for passing bills.
India’s Constitution is based on trust in its leadership. But when there is a repeated breach of trust and yet institutional silence, it is not right that the law just sits idle. It has now gone from being a connecting link between the two sides to being a political obstacle. The Governor's pocket veto of state legislation has been a massive assault on the Constitution's basic structure.
Although the age of naive reliance on gubernatorial inactivity is no more, the erratic behaviour of the courts in recent times shows that the judiciary cannot assume the responsibility of managing the legislative time frame forever. If we want to honour the legislative mandate, what needs to happen is structural reform relating to the appointment, tenure, and statutory timelines of the Governor. Only then will we be able to ensure that the Governor continues to serve as a protector of the Constitution, rather than an opponent of it.
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