The Role of the President and Governor in Lawmaking: Constitutional Design, Veto Powers, and Federal Control

I. The President in the Legislative Process

A. Assent under Article 111

Article 111 provides that when a Bill is presented to the President, he may:

1. Give assent;⁵
2. Withhold assent;⁶
3. Return the Bill (if not a Money Bill) for reconsideration.⁷

If Parliament passes the Bill again after reconsideration, the President is constitutionally bound to give assent.⁸ Thus, the suspensive veto is limited to a single instance.⁹

Money Bills cannot be returned for reconsideration.¹⁰ The President may technically give or withhold assent, though in practice assent is almost always granted, since Money Bills require prior presidential recommendation.¹¹

B. Forms of Presidential Veto

The President possesses three recognised forms of veto:

1. Absolute Veto¹²

This power is applicable particularly to:

• Private Members’ Bills;¹³
• Government Bills where the Council of Ministers resigns before assent is given.¹⁴

2. Suspensive Veto

This is the power to return a non-Money Bill once for reconsideration under Article 111 (and similarly under Article 200 at the State level).¹⁵ If the Bill is passed again, assent becomes mandatory.¹⁶

3. Pocket Veto

Since no time limit is prescribed for the exercise of presidential discretion, inaction may effectively stall legislation.¹⁷ This power was notably exercised by President Zail Singh in 1986 in relation to the Indian Post Office (Amendment) Bill.¹⁸

India does not recognise a qualified veto of the kind found in the United States.¹⁹

C. Constitutional Amendment Bills and the 24th Amendment

Article 368 governs the procedure for constitutional amendments.²⁰ Following the Constitution (Twenty-fourth Amendment) Act, 1971, the President is constitutionally obligated to give assent to a duly passed Constitutional Amendment Bill.²¹

Accordingly, presidential discretion does not extend to the amending power once the procedural requirements under Article 368 have been fulfilled.²²

D. Ordinance Power under Article 123

Article 123 authorises the President to promulgate Ordinances during a parliamentary recess.²³ Although broad in form, this power is exercised on ministerial advice and remains subject to judicial review.²⁴

II. The Governor in the Legislative Process

A. Article 200: The Four Constitutional Options

Under Article 200, when a Bill is presented to the Governor, he may:

1. Give assent;²⁵
2. Withhold assent;²⁶
3. Return the Bill (if not a Money Bill) for reconsideration;²⁷
4. Reserve the Bill for consideration by the President.²⁸

B. Mandatory Assent after Repassage

If a Governor returns a Bill and the State Legislature passes it again, the Governor is constitutionally bound to grant assent.²⁹ This mirrors the position under Article 111 at the Union level.³⁰

The mandatory nature of assent applies only after reconsideration under Article 200.³¹

C. Reservation and Article 201: Federal Asymmetry

When a Governor reserves a Bill for the President, Article 201 applies.³² Under Article 201:

• The President may assent or withhold assent;³³
• Even if the State Legislature passes the Bill again, the President is not bound to give assent.³⁴

This creates a structural asymmetry: repassage binds the President in respect of Union Bills under Article 111, but does not bind the President in respect of reserved State Bills under Article 201.³⁵ This is a clear instance of federal centralisation.³⁶

Having examined the formal constitutional architecture, it is necessary to consider how recent judicial decisions have altered the practical operation of these powers — particularly the question of executive inaction.

III. The Unconstitutionality of “Silence”: The 2023–2024 Judicial Position

Governors had, in the past, been able to indefinitely withhold action on Bills placed before them.³⁷ Recent Supreme Court jurisprudence has sharply eroded this practice.³⁸

In State of Punjab v. Principal Secretary to the Governor of Punjab, the Supreme Court held that a Governor cannot sit on a Bill indefinitely, and that where assent is withheld, the Governor must return the Bill to the Legislature for reconsideration.³⁹ The Court reiterated that constitutional functionaries cannot frustrate the legislative will by refusing to act — inaction is not a constitutionally viable option under Article 200.^{40, 41}

This principle was further elaborated in related litigation, including matters concerning V. Senthil Balaji, which addressed gubernatorial delay and constitutional accountability.⁴²

The principle emerging from this line of authority may be stated as follows:

Inaction cannot be a veto in disguise.⁴³

Accordingly, unlike the President’s recognised pocket veto, a Governor’s prolonged silence can no longer be considered constitutionally permissible.⁴⁴

This judicial development has direct implications for the Ordinance power under Article 213, which provides a parallel avenue for executive action — and is itself subject to important federal constraints.

IV. Ordinance Power under Article 213: The “Negative Check”

Article 213 empowers the Governor to promulgate Ordinances when the State Legislature is not in session.⁴⁵

However, the Governor cannot promulgate an Ordinance without Presidential instructions if:

• A similar Bill would have required prior Presidential sanction;⁴⁶
• A similar Bill would have required reservation for the President;⁴⁷
• The proposed law would conflict with existing central legislation.⁴⁸

This mechanism operates as a negative federal check.⁴⁹ It prevents States from using the Ordinance route to bypass Article 254(2), which governs inconsistencies between Central and State laws.⁵⁰

Under Article 254(2), a State law inconsistent with a Central law may prevail within that State only if it receives Presidential assent.⁵¹ Without the Article 213 restriction, a State could theoretically circumvent this requirement by promulgating an Ordinance during a legislative recess.⁵² The requirement of Presidential instructions forecloses that possibility.⁵³

Thus, Article 213 reinforces Union supremacy and preserves constitutional coherence.⁵⁴

V. Judicial Foundations of Federal Balance

In Purushothaman Nambudiri v. State of Kerala, the Supreme Court clarified that once a Bill is passed and presented to the Governor, it ceases to be pending before the Legislature.⁵⁵

In S.R. Bommai v. Union of India, the Court declared federalism to be part of the Constitution’s Basic Structure, reinforcing limits on the exercise of discretionary power by constitutional functionaries.⁵⁶

Together with the recent jurisprudence limiting gubernatorial delay, these decisions establish that executive discretion in the lawmaking process is structured, reviewable, and constitutionally bounded.⁵⁷

VI. Comparative Overview

Conclusion

The roles of the President and the Governor in the lawmaking process form the constitutional scaffolding of India’s parliamentary federal structure.⁵⁸ Though essentially ministerial in character, the powers of assent, reconsideration, reservation, and Ordinance promulgation provide structured constitutional checks on legislative action.⁵⁹

Recent Supreme Court jurisprudence has ensured that executive silence is not available as a tool of discretion.⁶⁰ The reservation and Ordinance regimes, in turn, provide a calibrated mechanism of Union oversight over State legislation.⁶¹

The net effect is a constitutional scheme that balances democratic majoritarianism with federal oversight — cooperative in form, asymmetrical in structure, and increasingly subject to judicial scrutiny.⁶²

Bibliography

I. Primary Sources

A. Constitutional and Statutory Materials

• Constitution of India
• Constitution (Twenty-Fourth Amendment) Act 1971

B. Cases

• AK Roy v Union of India (1982) 1 SCC 271
• DC Wadhwa v State of Bihar (1987) 1 SCC 378
• Government of NCT of Delhi v Union of India (2023) 9 SCC 1
• Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4 SCC 45
• Keisham Meghachandra Singh v Speaker Manipur Legislative Assembly (2020) 2 SCC 708
• Kehar Singh v Union of India (1989) 1 SCC 204
• Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
• Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1
• Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1
• Purushothaman Nambudiri v State of Kerala AIR 1962 SC 694
• Samsher Singh v State of Punjab (1974) 2 SCC 831
• Senthil Balaji v State (2023) 3 SCC 513
• SR Bommai v Union of India (1994) 3 SCC 1
• State of Bihar v Kameshwar Singh AIR 1952 SC 252
• State of Punjab v Principal Secretary to the Governor of Punjab (2023) SCC OnLine SC 1434
• State of Rajasthan v Union of India (1977) 3 SCC 592
• State of Telangana v Governor of Telangana (2023) SCC OnLine SC 767
• The State of Tamil Nadu v Governor of Tamil Nadu (2023) Writ Petition (Civil) No 1239/2023
• Zameer Ahmed Latifur Rehman Sheikh v State of Maharashtra (2010) 5 SCC 246

C. Institutional and Government Materials

• Lok Sabha Secretariat, Rules of Procedure and Conduct of Business in Lok Sabha
• Rajya Sabha Secretariat, Rules of Procedure and Conduct of Business in the Council of States
• Ministry of Law and Justice, Government of India, Manual of Parliamentary Procedures
• Sarkaria Commission, Report on Centre-State Relations (1988)
• Punchhi Commission, Report on Centre-State Relations (2010)

II. Secondary Sources

A. Books

• Austin G, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966)
• Basu DD, Commentary on the Constitution of India (9th edn, LexisNexis 2014)
• Basu DD, Comparative Constitutional Law (3rd edn, LexisNexis 2014)
• Jain MP, Indian Constitutional Law (8th edn, LexisNexis 2018)
• Shukla VN, Constitution of India (13th edn, Eastern Book Company 2017)

B. Journal Articles

• Choudhry S, ‘Federalism and the Basic Structure Doctrine’ (2009) 1 Indian Journal of Constitutional Law
• Dam S, ‘Executive Assent and the Limits of Gubernatorial Discretion’ (2010) 52 Journal of the Indian Law Institute
• Krishnaswamy S, ‘The Constitutional Position of the Governor’ (2012) 4 National Law School of India Review
• Sengupta A, ‘Gubernatorial Discretion and Constitutional Morality’ (2016) 8 NUJS Law Review

C. Newspaper Articles

• The Hindu, ‘Supreme Court Questions Governor’s Delay in Assent to Bills’ (2023)
• The Indian Express, ‘SC Clarifies Limits of Governor’s Powers under Article 200’ (2023)
• The Times of India, ‘Debate Over Governor’s Role Intensifies After Supreme Court Remarks’ (2023)

Footnote(S):

¹ Constitution of India, arts 107, 196; see also State of Bihar v Kameshwar Singh AIR 1952 SC 252.

² Constitution of India, arts 111, 200.

³ Samsher Singh v State of Punjab (1974) 2 SCC 831; Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1.

⁴ Constitution of India, arts 111, 123, 200, 201, 213, 254(2), 368; Constitution (Twenty-fourth Amendment) Act 1971; Kehar Singh v Union of India (1989) 1 SCC 204.

⁵ Constitution of India, art 111.

⁶ ibid.

⁷ ibid, first proviso.

⁸ ibid, first proviso; see also Samsher Singh v State of Punjab (1974) 2 SCC 831.

⁹ Durga Das Basu, Commentary on the Constitution of India (9th edn, LexisNexis 2014) vol 5, 5421.

¹⁰ Constitution of India, art 111, first proviso.

¹¹ Constitution of India, art 117(1); MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 124.

¹² This power is derived from the word ‘withholds’ in Article 111; see VN Shukla, Constitution of India (13th edn, Eastern Book Company 2017) 462.

¹³ ibid.

¹⁴ Samsher Singh v State of Punjab (1974) 2 SCC 831; see also the 1954 instance involving the PEPSU Appropriation Bill where President Rajendra Prasad withheld assent following a change in government.

¹⁵ Constitution of India, arts 111, 200.

¹⁶ ibid, first proviso to art 111; see also State of Rajasthan v Union of India (1977) 3 SCC 592.

¹⁷ Constitution of India, art 111 (noting the absence of a specific timeframe); see VN Shukla, Constitution of India (13th edn, Eastern Book Company 2017) 463.

¹⁸ MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 125.

¹⁹ Durga Das Basu, Commentary on the Constitution of India (9th edn, LexisNexis 2014) vol 5, 5422.

²⁰ Constitution of India, art 368.

²¹ Constitution (Twenty-fourth Amendment) Act 1971, s 3; amending Constitution of India, art 368(2) (substituting ‘shall give his assent’ for ‘shall declare his assent’).

²² Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

²³ Constitution of India, art 123.

²⁴ DC Wadhwa v State of Bihar (1987) 1 SCC 378; AK Roy v Union of India (1982) 1 SCC 271; see also Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1.

²⁵ Constitution of India, art 200.

²⁶ ibid.

²⁷ ibid, first proviso.

²⁸ ibid, second proviso.

²⁹ ibid, first proviso.

³⁰ cf Constitution of India, art 111.

³¹ State of Punjab v Principal Secretary to the Governor of Punjab (2023) SCC OnLine SC 1434.

³² Constitution of India, art 201.

³³ ibid.

³⁴ Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4 SCC 45.

³⁵ Durga Das Basu, Comparative Constitutional Law (3rd edn, LexisNexis 2014) 421.

³⁶ MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 412.

³⁷ VN Shukla, Constitution of India (13th edn, Eastern Book Company 2017) 502.

³⁸ State of Telangana v Governor of Telangana (2023) SCC OnLine SC 767.

³⁹ State of Punjab v Principal Secretary to the Governor of Punjab (2023) SCC OnLine SC 1434, para 31.

⁴⁰ The State of Tamil Nadu v Governor of Tamil Nadu (2023) Writ Petition (Civil) No 1239/2023.

⁴¹ ibid.

⁴² Senthil Balaji v State (2023) 3 SCC 513 (noting the broader duties of constitutional heads).

⁴³ State of Punjab v Principal Secretary to the Governor of Punjab (2023) SCC OnLine SC 1434, para 28.

⁴⁴ ibid; see also Keisham Meghachandra Singh v The Hon’ble Speaker, Manipur Legislative Assembly (2020) 2 SCC 708.

⁴⁵ Constitution of India, art 213(1).

⁴⁶ ibid, art 213(1)(a).

⁴⁷ ibid, art 213(1)(b).

⁴⁸ ibid, art 213(1)(c).

⁴⁹ DC Wadhwa v State of Bihar (1987) 1 SCC 378.

⁵⁰ Constitution of India, art 254(2).

⁵¹ ibid.

⁵² Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1.

⁵³ Constitution of India, art 213(1), proviso.

⁵⁴ Zameer Ahmed Latifur Rehman Sheikh v State of Maharashtra (2010) 5 SCC 246.

⁵⁵ Purushothaman Nambudiri v State of Kerala AIR 1962 SC 694.

⁵⁶ SR Bommai v Union of India (1994) 3 SCC 1.

⁵⁷ Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1.

⁵⁸ Samsher Singh v State of Punjab (1974) 2 SCC 831.

⁵⁹ Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1.

⁶⁰ State of Telangana v Governor of Telangana (2023) SCC OnLine SC 767.

⁶¹ Constitution of India, arts 201, 213, 254(2).

⁶² SR Bommai v Union of India (1994) 3 SCC 1; see also Government of NCT of Delhi v Union of India (2023) 9 SCC 1.