Constitutional Law
President and Governor: Position and Powers
Understand aid and advice, limited discretion, ordinance and assent powers, and the latest Supreme Court position on Governors and State Bills.
The short answer
The President and Governor are constitutional heads who ordinarily act on ministerial aid and advice, with limited text-based areas of discretion.
The constitutional head and the elected executive
Executive power is formally vested in the President or Governor, but responsible government places ordinary political decision-making with the Council of Ministers.
Aid and advice
The President ordinarily acts on the aid and advice of the Union Council of Ministers. The Governor follows the same parliamentary principle at State level except where the Constitution validly permits discretion.
Appointment powers
The President appoints the Prime Minister and other ministers on advice; the Governor appoints the Chief Minister and other ministers. Where a clear majority exists, constitutional choice is narrow.
Legislative functions
These include summoning, proroguing, addressing the legislature and dealing with Bills. Formal power must be exercised within responsible government and the specific constitutional provision.
Ordinances
Articles 123 and 213 permit temporary legislation when the relevant legislature is not in session and immediate action is considered necessary. Ordinance power cannot become a routine substitute for legislation.
Discretion, government formation and assent
Discretion is an exception that must be traced to constitutional text, structure or a situation where ordinary advice cannot logically control.
Government formation
In a hung House, the head may need to identify who is most likely to command confidence. The decisive constitutional test is ordinarily a floor test, not a private assessment of political support.
Article 200 options
The 2025 Presidential Reference states that a Governor may assent, reserve the Bill for the President, or withhold assent and return a non-Money Bill with comments. The last route is not a separate pocket veto.
Current review position
The merits of the Governor’s chosen Article 200 option are not ordinarily justiciable. In glaring prolonged, unexplained and indefinite inaction, a court may issue a limited direction requiring discharge of the constitutional function.
No automatic deemed assent
The 2025 opinion rejects judicial substitution of the constitutional decision through fixed universal timelines or deemed assent. Accountability operates through the limited constitutional remedy for inaction.
A map of executive and legislative powers
The President and Governor are constitutional heads through whom executive action is formally expressed, ordinarily on ministerial aid and advice.
Executive action
Articles 53 and 154 vest executive power formally, while Articles 74 and 163 establish councils of ministers and responsible government.
Appointments and information
The Constitution assigns appointments and information rights, but the relevant article, advice requirement and statutory process determine how each power is exercised.
Sessions, addresses and messages
The constitutional head summons, prorogues and addresses the legislature under the Constitution, ordinarily within cabinet government and judicially recognised conventions.
Ordinances
Articles 123 and 213 permit temporary legislation when the relevant legislature is not in session and immediate action is necessary, subject to legislative control and judicial review.
Aid and advice, reconsideration and narrow discretion
Shamsher Singh establishes cabinet responsibility as the norm and personal discretion as a constitutionally identified exception.
The President may once require the Council of Ministers to reconsider advice, but must act according to the advice tendered after reconsideration. Article 163 recognises limited areas in which the Governor acts in discretion; it does not create a general authority to oppose an elected ministry.
Government formation requires a floor-based assessment of majority when doubt exists. Nabam Rebia limits gubernatorial interference with legislative functioning and reinforces that discretionary power must be traced to the Constitution, not political preference.
Assent, withholding and reservation of Bills
Articles 111, 200 and 201 use different structures, so presidential and gubernatorial options should not be treated as identical.
Under Article 111, the President may assent, withhold assent or return a non-Money Bill. Under Article 200, the Governor may assent, withhold assent, return a non-Money Bill or reserve it for presidential consideration, subject to constitutional requirements. A reconsidered State Bill and a reserved Bill engage distinct clauses and consequences.
The Supreme Court's 2025 Presidential Reference addressed aid and advice, time limits, deemed assent, justiciability and Article 361. The opinion rejects judicial creation of deemed assent and fixed constitutional timelines, while preserving limited judicial scrutiny of prolonged, unexplained inaction and constitutional misuse. The precise holding should be applied instead of older shorthand formulas.
A four-step method for disputes involving a constitutional head
The title of the office does not answer the problem. The source, advice rule, available options and constitutional purpose must be tested in order.
Identify the exact power
Cite the relevant article for appointment, summoning, ordinance, assent, clemency or emergency action. Similar language in the Union and State chapters may still carry different procedures and consequences.
Determine who constitutionally decides
Apply ministerial aid and advice as the ordinary rule. If discretion is claimed, require a textual, structural or clearly recognised constitutional basis instead of assuming personal political choice.
Test process and purpose
Ask whether relevant material was considered, whether the power served its constitutional purpose and whether delay, partisanship or an extraneous objective distorted responsible government.
State the scope of review carefully
Article 361 protects the office-holder from being answerable to court in the specified sense, but it does not automatically make the underlying governmental action valid or place official material beyond judicial scrutiny.
President and Governor: important differences
The two constitutional heads share a parliamentary framework but exercise distinct powers under separate provisions.
Both offices operate within parliamentary government, but they are not interchangeable copies. The President acts at Union level and is elected through the constitutional electoral college. The Governor is appointed by the President, serves as the State's constitutional head and may also perform specific functions created by the Constitution.
The President's ordinance power under Article 123 and the Governor's power under Article 213 are temporary legislative powers, but Article 213 contains additional restrictions in situations where presidential instructions would have been relevant to an equivalent State Bill. Ordinances must return to the legislature and cannot be used as a parallel permanent lawmaking route.
Clemency powers also differ. Article 72 gives the President special reach over court-martial cases, Union-law offences and death sentences. Article 161 relates to matters within State executive power. Both remain subject to limited review for grounds such as mala fides, irrelevant considerations or arbitrariness.
Leading cases and what they establish
Read each authority for the proposition it proves, the legal question it answers and the reasoning that supports the result.
Shamsher Singh v. State of Punjab
(1974) 2 SCC 831
Facts: Probationary judicial officers challenged termination orders issued in the name of the Governor, raising the nature of personal and ministerial satisfaction.
Legal question: Do the President and Governor ordinarily exercise executive powers personally?
Held: The President and Governor are constitutional heads who generally exercise formal powers on ministerial aid and advice, subject to narrow constitutional exceptions.
Reasoning: The Constitution establishes cabinet government. Formal executive power is generally exercised on ministerial aid and advice, except in narrowly recognised discretionary situations.
Why it matters: Use it as the starting rule for executive power under the parliamentary system.
Read the judgmentNabam Rebia v. Deputy Speaker
(2016) 8 SCC 1
Facts: The Governor of Arunachal Pradesh advanced an Assembly session and fixed its agenda during an intense dispute over the government and Speaker.
Legal question: Did the Governor possess a broad personal discretion to direct legislative business?
Held: The Governor does not possess a general discretionary authority and must remain within the constitutional field assigned to the office.
Reasoning: The office carries no general reserve of discretionary power. Any departure from aid and advice must be grounded in the Constitution and remain within the assigned function.
Why it matters: Use it to reject an undefined reserve of personal gubernatorial power.
In Re: Assent, Withholding or Reservation of Bills by the Governor and the President
2025 INSC 1333
Facts: The President referred questions concerning the constitutional options, discretion, timelines and judicial review applicable when Governors and the President consider State Bills.
Legal question: What are the available Article 200 choices and what remedy exists against prolonged gubernatorial inaction?
Held: The Court clarified the three Article 200 options, discretion in choosing among them and the limited remedy available against prolonged, unexplained and indefinite inaction.
Reasoning: The opinion identified three options and rejected merits review, fixed universal timelines and deemed assent. It preserved a limited mandamus where inaction is prolonged, unexplained and indefinite.
Why it matters: Use it as the current authority on assent, justiciability, timelines and limited mandamus.
Read the judgmentUsing this topic in a legal answer
A clear answer sequence
- Begin with the parliamentary executive and aid-and-advice rule.
- Identify the exact formal power being exercised.
- Ask whether the Constitution permits discretion in that setting.
- For Bills, apply the current three-option Article 200 framework.
- Separate review of prolonged inaction from merits review.
Points that are often confused
- Calling the President or Governor a parallel political executive.
- Assuming Governors possess general discretionary power.
- Using outdated fixed-timeline or deemed-assent claims after the 2025 Reference.
Open the revision and self-check sheet
Rules to retain
- Both offices are constitutional heads.
- Aid and advice is the ordinary rule.
- Discretion is limited, not general.
- A floor test ordinarily proves legislative confidence.
- Article 200 inaction can receive limited judicial correction.
Questions to test understanding
- When can a Governor act without ministerial advice?
- What are the three Article 200 options?
- Can a court grant deemed assent under the current position?
Questions students ask
Can the Governor permanently keep a State Bill pending?
The Constitution does not create a pocket veto. Under the 2025 opinion, prolonged, unexplained and indefinite inaction can attract a limited judicial direction to discharge the function.
Does the President personally run the Union executive?
No. In the parliamentary system, the President ordinarily acts on the aid and advice of the Council of Ministers, which is politically responsible to Lok Sabha.
Can the President refuse ministerial advice?
The President may require reconsideration once, but must act according to the advice tendered after reconsideration under Article 74.
Does the Governor have a general discretionary power?
No. Discretion must arise from the Constitution and is exceptional within parliamentary government based on ministerial responsibility.
Can a court declare deemed assent to a State Bill after delay?
The 2025 Presidential Reference rejects judicial creation of deemed assent and fixed constitutional timelines, while recognising limited review of prolonged and constitutionally improper inaction.
Primary sources and further reading
- Constitution of India, Legislative Department
- Supreme Court judgment in Shamsher Singh
- Supreme Court opinion on assent and reservation of Bills, 2025
This article is written for legal education. Verify the governing provision, applicable amendments and complete judgment before relying on a proposition in practice.