The 16th Presidential Reference: A Constitutional Contradiction That Undermines Federalism

The Supreme Court’s recent judgment in the 16th Presidential Reference has created a constitutional paradox that threatens to undermine decades of federal balance in India. By declaring that no timelines can be fixed for Governors or the President to act on Bills while simultaneously acknowledging the need for “limited judicial scrutiny” in cases of prolonged inaction, the Court has delivered an advisory opinion that directly contradicts its own binding judgment from April 2024. This contradiction raises fundamental questions about judicial consistency, federal autonomy, and the practical enforceability of constitutional safeguards against executive obstruction.

The Constitutional Contradiction

The heart of the problem lies in the irreconcilable tension between two Supreme Court pronouncements issued within months of each other. On April 8, 2024, in State of Tamil Nadu vs Governor of Tamil Nadu & Union of India, a two-judge Bench comprising Justices JB Pardiwala and R Mahadevan delivered a clear and unequivocal judgment. The Court held that Governors cannot exercise a “pocket veto” by indefinitely withholding assent to Bills passed by state legislatures, and it fixed a mandatory three-month timeline for gubernatorial action.

This was not mere obiter dicta or advisory commentary. It was a binding judgment arising from actual litigation, grounded in specific facts, and carrying the full force of precedent. The reasoning was constitutionally sound: the Governor’s role in the legislative process, while including discretionary powers, cannot be transformed into an absolute veto through indefinite delay. Such inaction subverts the democratic will of elected state legislatures and reduces federalism to a hollow promise.

Enter the 16th Presidential Reference. In this advisory opinion, a larger Constitution Bench has now declared that no timelines can be imposed on the President or Governors for acting on Bills, and that there can be no concept of “deemed assent” after a specified period. While former Chief Justice B.R. Gavai clarified that an advisory opinion does not technically overrule a judgment, this distinction offers cold comfort in the face of practical reality. Lower courts, state governments, and constitutional actors must now navigate between two contradictory Supreme Court pronouncements, uncertain which principle governs their conduct.

The Illusion of “Limited Judicial Scrutiny”

The 16th Presidential Reference attempts to soften its position by stating that “limited judicial scrutiny” will apply when gubernatorial inaction is “prolonged, unexplained and indefinite.” This formulation, however, raises more questions than it answers and may prove to be a constitutional mirage.

What constitutes “prolonged” delay? Six months? A year? Two years? Without the bright-line rule established in the Tamil Nadu judgment, state governments are left guessing when they might legitimately approach the courts. The absence of a timeline transforms judicial scrutiny from a meaningful safeguard into an uncertain prospect requiring protracted litigation.

What qualifies as “unexplained” inaction? Must the Governor provide reasons for withholding assent? To whom must these reasons be communicated? The constitutional text does not require Governors to explain their decisions, and courts have traditionally respected executive confidentiality in decision-making processes. If no explanation is constitutionally required, how can its absence trigger judicial intervention?

Most troublingly, how “indefinite” must the inaction be before courts will intervene? This temporal ambiguity effectively resurrects the very pocket veto that the April judgment sought to eliminate. A Governor can now sit on legislation for extended periods, confident that any challenge will involve lengthy litigation over whether the delay has crossed the undefined threshold of “indefinite” inaction.

The Return of the Pocket Veto

The practical effect of the 16th Presidential Reference is to restore to Governors and the President a de facto pocket veto over state legislation. This represents a fundamental shift in India’s federal balance, tilting power decisively toward the Centre and its appointed representatives in the states.

Consider the reality facing a state government that has passed important legislation through its democratically elected assembly. Under the Tamil Nadu judgment, they had certainty: if the Governor did not act within three months, they could seek judicial relief with a clear legal basis. Now, under the Presidential Reference, they face an indeterminate waiting period with no clear recourse. They must either wait indefinitely, hoping the Governor will eventually act, or initiate litigation in which they bear the burden of proving that the delay is “prolonged, unexplained and indefinite” enough to warrant intervention.

This uncertainty itself becomes a tool of obstruction. Governors aligned with the Central government can effectively neutralize state legislation passed by opposition-controlled assemblies simply through inaction. The political calculations are obvious: why formally reject a Bill and spark a constitutional confrontation when you can achieve the same result through silent obstruction?

The Centre thus gains a default veto over state laws, not through any explicit constitutional provision, but through the practical impossibility of distinguishing legitimate deliberation from political obstruction in the absence of defined timelines.

Federalism Under Siege

The 16th Presidential Reference must be understood against the broader context of India’s evolving federalism. In recent years, numerous states governed by opposition parties have complained that Governors have become instruments of Central control rather than constitutional functionaries committed to federal balance. Bills have languished for years without action, undermining state autonomy and the democratic mandate of elected assemblies.

The Tamil Nadu judgment represented a crucial judicial intervention to protect federalism. By establishing clear timelines, it transformed the constitutional relationship from one of executive discretion to one of constitutional obligation. The Governor retained the power to grant or withhold assent, but could not exercise that power through indefinite delay.

The Presidential Reference reverses this progress. By rejecting timelines and deemed assent while offering only vague promises of “limited scrutiny,” it returns us to a regime where federal relations depend on the political will of gubernatorial appointees rather than constitutional structure. This is federalism by sufferance rather than federalism by right.

The Problem of Precedential Hierarchy

Former Chief Justice Gavai’s clarification that advisory opinions do not overrule judgments raises a critical question: what happens when they contradict each other? In theory, the Tamil Nadu judgment remains good law and binding precedent. In practice, constitutional actors may feel compelled to follow the larger Bench’s advisory opinion, particularly when it addresses the same subject matter.

This creates dangerous uncertainty in constitutional law. If the April judgment remains valid, Governors should be bound by its three-month timeline. If the Presidential Reference governs, no such timeline exists. State governments cannot simultaneously operate under both principles. They must choose, knowing that whichever path they select risks being declared wrong.

The Court has inadvertently created a situation where constitutional law lacks the clarity and predictability that the rule of law demands. This is particularly problematic in federal relations, where clear boundaries between state and Central authority are essential to preventing conflicts and preserving autonomy.

A Failure of Constitutional Statesmanship

The 16th Presidential Reference represents a missed opportunity for constitutional statesmanship. The Court could have used this reference to reaffirm and elaborate upon the principles established in the Tamil Nadu judgment, providing greater detail on how courts should scrutinize gubernatorial delays while maintaining the essential framework of enforceable timelines.

Instead, it has retreated to abstract principles that offer no practical protection for federal autonomy. The emphasis on “limited judicial scrutiny” without defined parameters effectively insulates executive inaction from meaningful review. It transforms judicial protection of federalism from a concrete safeguard into an abstract possibility.

Clarification and Correction

This constitutional confusion demands resolution. The Supreme Court should seize the earliest opportunity to clarify the relationship between the Tamil Nadu judgment and the Presidential Reference. Several paths are available.

First, the Court could hold that the Tamil Nadu judgment’s specific timelines apply in the absence of any explanation or action by the Governor, while the Presidential Reference’s framework of limited scrutiny applies when the Governor provides reasons for delay or takes some intermediate action. This would preserve both pronouncements while providing workable guidance.

Second, a future Bench could explicitly recognize that the Tamil Nadu judgment’s approach better serves constitutional federalism and should be followed notwithstanding the Presidential Reference’s advisory opinion. This would require acknowledging that the Presidential Reference, while constitutionally valid, represents an incorrect interpretation of federal balance.

Third, Parliament could intervene through constitutional amendment to establish clear timelines and procedures for gubernatorial action on Bills, removing judicial interpretation from the equation. This would represent democratic resolution of a constitutional ambiguity.

Federalism Cannot Wait Indefinitely

The 16th Presidential Reference’s rejection of timelines and deemed assent, combined with its vague promise of “limited scrutiny,” creates a constitutional framework that favors Central control over state autonomy. By contradicting the Tamil Nadu judgment without formally overruling it, the Court has generated confusion where clarity is constitutionally essential.

Federalism cannot function when state legislatures must wait indefinitely for gubernatorial action, uncertain of their recourse and dependent on the political disposition of centrally appointed functionaries. The three-month timeline established in the Tamil Nadu judgment represented a reasonable balance between allowing adequate time for consideration and preventing obstruction through delay.

India’s constitutional future depends on whether we treat federalism as a fundamental structural principle or as a convenience subject to political manipulation. The Supreme Court’s handling of this matter will signal which path we are taking. For the sake of our federal democracy, we must hope that future judgments restore the clarity and protection that the 16th Presidential Reference has unfortunately undermined.