Can courts rewrite the Constitution? AG questions SC ruling on Governor’s powers in Presidential Reference hearing

Attorney General for India R Venkataramani on Tuesday questioned the Supreme Court’s April 8, 2025 judgment that prescribed timelines for Governors to assent to Bills passed by State legislatures, asking whether the Court could effectively “rewrite” the Constitution by judicial intervention.

Opening the arguments before a five-judge Constitution Bench comprising Chief Justice BR Gavai, and Justices Surya Kant, Vikram Nath, Pamidighantam Sri Narasimha and Atul S Chandurkar, the Attorney General said:“Can the Court go to the extent of taking pen and paper and rewriting the Constitution?”

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He contended that in the Tamil Nadu Governor’s case, the Court had entered the legislative domain, effectively rewriting Articles 200 and 201 by reading into them interpretations never envisaged by the framers. He maintained that the April 8 judgment should have been referred to a larger Bench, but his request for such reference had not been considered.

The Bench, however, noted that the division bench of Justices JB Pardiwala and R Mahadevan had intervened because Bills passed by the Tamil Nadu Assembly were pending with the Governor for an unusually long time without any action. Justice Narasimha observed: “See the egregious situation it had come to… It was to remedy that situation that the Court stepped in. The Bills were pending for so long.”

In the morning session, senior advocates KK Venugopal, Abhishek Manu Singhvi, and P Wilson challenged the maintainability of the Presidential Reference, arguing that it was in effect a disguised appeal against the Tamil Nadu Governor judgment. Both Kerala and Tamil Nadu governments also opposed the Reference.

The Bench clarified that it was exercising its advisory jurisdiction under Article 143 and not sitting in appeal over the April 8 ruling. Addressing the maintainability issue, the Attorney General insisted that the hearing could not be thwarted, and it was for the Court to decide whether to answer the Reference after full arguments. His position was supported by Solicitor General Tushar Mehta and senior advocates Harish Salve and Neeraj Kishan Kaul.

The Constitution Bench is examining whether the judiciary can prescribe timelines for the President and Governors in granting or withholding assent to Bills. Tamil Nadu and Kerala argued that the Reference is barred, since constitutional questions on Articles 200 and 201 have already been settled in prior rulings—including the April 8, 2025 judgment authored by Justice Pardiwala.

Citing precedents like the 1993 Cauvery Water Disputes Tribunal Reference, Kerala contended that Article 143 cannot be used to reopen issues already settled by authoritative pronouncements. It said if the Union Government disagreed with the April 8 ruling, it should have pursued review or curative petitions, not a Presidential Reference.

Filed on May 15, 2025, the Presidential Reference asks whether the Court exceeded its jurisdiction in prescribing timelines for Governors and the President, and whether the concept of “deemed assent” violates the doctrine of separation of powers. The Union Government has defended the Reference, asserting that the judiciary’s intervention encroached upon constitutional functions of the executive.