VC case in High Court today; governor only has power to appoint vice-chancellor, says government

The Kerala High Court on Monday (19^th May) held that the appointment of Dr. K. Sivaprasad by the former Governor Arif Mohammed Khan to the post of temporary Vice Chancellor of APJ Abdul Kalam Technological University was” not sustainable in law”. The appointment was made in November 2024 by the Governor who also holds the post of ex-officio Chancellor of the University. 

Justice Gopinath P. held that the Chancellor did not follow the procedure mentioned under Section 13(7) of the APJ Abdul Kalam Technological University Act, 2015. As per the provision, the Chancellor has to appoint a temporary VC based on the recommendation of the Government.

The Chancellor had relied on Dr. Premachandran Keezhoth and Another v the Chancellor Kannur University (2023) to argue that he was entitled to make appointment without any interference from the Government. However, the Court held that the case was concerned with the Kannur University Act and was not applicable in the presenting scenario.

The Court however held that since the appointment was made only for a period of six months and the term was set to expire by 27^th May, it need not interfere with the appointment at this point. The Court observed that the frequent changes in the person holding the office may not be conducive to the University and its students.

The Court directed the Government to take steps to recommend the Chancellor names of persons having prescribed qualification under UGC to be appointed as the VC of the University until an appointment is made on regular basis.

The Court following the judgment in State of Kerala v Chancellor (2023) held that the provisions in the 2015 Act is valid unless it is contrary to the UGC Regulations. The High Court rejected the argument that State of Kerala (2023) was not a good law asit is contrary to the Supreme Court decision in Prof. (Dr.) Sreejith P. S. V Dr. Rajasree M. S. and Others (2022). The Court observed that Dr. Sreejith has laid down that the UGC Regulations will have supremacy over a contrary State Legislation but does not go against the judgment in State of Kerala v Chancellor. The Court clarified that the State has to make sure that only person who qualify as per the UGC Regulations is recommended to the post of VC even if is on a temporary basis.

Background of the Case

The Supreme Court in Dr. Sreejith v Dr. Rajasree declared that the appointment of Dr. Rajasree M. S to the post of Vice Chancellor of the Technological University was illegal. Subsequently, the Government recommended Saji Gopinath, the VC of Digital University of Kerala to be given the charge of temporary VC of the technological university. This recommendation was not accepted by the Chancellor which in turn led to Government recommending the name of Principal Secretary of the Higher Educational Department to act as the VC. The Chancellor, however, went forward and appointed Dr. Ciza Thomas as the VC. This action was challenged by the Government before the High Court which was initially dismissed by the Single Judge. However, on appeal the Division Bench held that the State can recommend other names to replace Ciza Thomas. Subsequent to this, Government forwarded a panel of names containing 3 names to be considered for appointment. The Chancellor sought a clarification from the Government whether it was standing by the initial recommendation of Saji Gopinath or the panel of 3 names. To this, the Government replied by sending a new panel of names including the name of Dr. Saji Gopinath. On March 2023. Saji Gopinath was appointed as the temporary VC.

As the term of Saji Gopinath came to an end, the Government issued a communication for the Chancellor's consideration. However, the Governor held that he had discretion in the matter of appointing VC based on the Supreme Court judgment in on Dr. Premachandran Keezhoth and Another v the Chancellor Kannur University (2023). Based on this claim, the Chancellor appointed Dr. K. Sivaprasad as the VC which was challenged by the Government in the instant writ petition.

Counsel for the Petitioner: Advocates Asok M. Cherian (Addl. AG), N. Manoj Kumar (State Attorney), V. Manu (Spl. GP to AG)

Counsel for the Respondents: Advocates S. Prasanth (SC), K. R. Ganesh, Nisha George, P. Sreekumar (Sr.), Silpa Sreekumar, George Poonthottam (Sr.), Kavya Varma M. M.

Case No: WP(C) 42527 of 2024

Case Title: State of Kerala v the Chancellor and Others

Citation: 2025 LiveLaw (Ker) 280

Click To Read/ Download Order 

Kerala Education Act | Appointment Of Manager Void If Property Of Aided School Is Alienated Without Govt Approval: High Court K. Salma Jennath 17 May 2025 7:30 PM

S.6 S.6 Kerala Education Act | Appointment Of Manager Void If Property Of Aided School Is Alienated Without Govt Approval: High Court Listen to this Article The Kerala High Court recently found that the appointment of a manager by the owner after receiving title of property of an aided school was void under S. 6 of the Kerala Education Act since no previous permission was obtained from the government before obtaining the title. In a Writ Appeal preferred by the teachers of the said aided school, the Division Bench comprising of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar considered the challenge to the appointment of the manager of the school by the current owner in the light of S. 6 of the KEA. Also Read - Can't Tolerate Experimentation In Litigation: Kerala High Court Raps Party For Filing Case Without Disclosing Earlier Matter Seeking Same Relief Finding the entire transaction, including the appointment of manager and alienation of property, to be void, the Bench held that permission cannot be obtained merely by invoking Rule 5A of Chapter III of the KER when S.6 is a prerequisite. It observed thus: “…We make it clear that in all other matters, before the aided school property is being alienated, it is the mandate of the law that permission shall be obtained from the Government or any officer authorised by the Government in this regard, and such permission cannot be obtained merely by invoking Rule 5A of Chapter III of the KER, which is only a procedural rule enabling the recording of a change in ownership consequent upon an approved transfer or by operation of the law…” Also Read - Strict Distinction Between Residential And Non-Residential Areas Is Challenging In Era Of Rapid Urbanisation: Kerala High Court The Court also made a detailed comparison between Section 6 of the Act and Rule 5A of KER, and highlighted the purposes of both the provisions in a tabular form. According to the Court, the objective of S.6 is to ensure that the transfer of property of aided schools is not done indiscriminately, adversely affect the working of the school and jeopardising the future of the students. When no officer is appointed for consideration as per the law, it is upon the transferor or transferee to move the Government for obtaining the previous permission. Also Read - Kerala High Court Weekly Round-Up: May 12 – 18, 2025 Noting that there is a lack of clarity in the law regarding such transactions, the Division Bench clarified that it is upon the Government to decide whether permission can be given or not and directed the Government to consider the matter afresh under S.6 KEA along with R.5A KER. Observing that there is nothing to prevent the Government from reconsidering the approval even though transfer was already effected without prior permission, the Court allowed the Writ Appeal and set aside the judgment of the Single Bench. The Court left it to the Government to decide whether post facto approval can be granted or not in this case. Also Read - Order 11 Rule 1 CPC | Plea For Interrogatories Can't Be Used To Make Roving Inquiry, 'Test Of Prejudice' Will Decide Its Merit: Kerala High Court However, the Court also stated that though such a transfer of property would be null and void for the purposes of the KEA and the Rules thereunder, it will not become void as regards the transactions under the Transfer of Property Act, 1802. Case No: WA No. 4 of 2025 Case Title: Rashida K. and others v. N. Sidrathul Munthaha and others Citation: 2025 LiveLaw (Ker) 277 Counsel for Petitioners: V. Varghese Counsel for Respondents: S.M. Prem, H. Narayanan, P.M. Pareeth, Aiswarya Venugopal, Najeeb P.S.

President Reference Supreme Court Fix Timelines For President Bills Reserved Governor Article-143-292229

In a 14-point reference to the Supreme Court under Article 143 of the Indian Constitution, President Droupadi Murmu has asked the Court whether the Court can set timeline of 3 months for the President to make a decision on the Bill reserved to her by the Governor under Article 201 when there is no such "constitutionally prescribed timeline".

In what could be termed as not an unexpected reference, the President has sought advice of the Supreme Court in the landmark Tamil Nadu Governor matter pronounced on April 8 by a bench of Justice JB Pardiwala and R. Mahadevan. 

Article 143 allows the President to seek an opinion on the question of law or fact, which has arisen or likely to arise, and are of such nature and of such public opinion that it is expedient to obtain an opinion from the Supreme Court.

Considering that the 10 Bills were pending before Governor R.N. Ravi, the oldest of them pending since January 2020, and then it was reserved for the President's consideration when the State Assembly re-enacted it, the Court held the action of the Governor " "illegal and erroneous" in law and liable to be set aside.

Consequently, and for the first time in history, the Court held that the 10 Bills were deemed to have been assented to. In the reference, the President has stated that the concept of "deemed assent" of the President and the Governor is "alien" to the constitutional scheme and fundamentally "circumscribes" the power of the President and the Governor. 

The President has asked for the following:

1. What are the constitutional options before a Governor when a Bill is presented to him under Article 200 of the Constitution of India?

12. Is the Governor bound by the aid & advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?

3. Is the exercise of constitutional discretion by the Governor under Article 200 of the Constitution of India justiciable?

4. Is Article 361 of the Constitution of India an absolute bar to the judicial review in relation to the actions of a Governor under Article 200 of the Constitution of India?

5. In the absence of a constitutionally prescribed time limit, and the manner of exercise of powers by the Governor, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of all powers under Article 200 of the Constitution of India by the Governor?

6. Is the exercise of constitutional discretion by the President under Article 201 of the Constitution of India justiciable?

 7. In the absence of a constitutionally prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?

8. In light of the constitutional scheme governing the powers of the President, is the President required to seek advice of the Supreme Court by way of a reference under Article 143 of the Constitution of India and take the opinion of the Supreme Court when the Governor reserves a Bill for the President's assent or otherwise?

9. Are the decisions of the Governor and the President under Article 200 and Article 201 of the Constitution of India, respectively, justiciable at a stage anterior into the law coming into force? Is it permissible for the Courts to undertake judicial adjudication over the contents of a Bill, in any manner, before it becomes law?

 10. Can the exercise of constitutional powers and the orders of/by the President / Governor be substituted in any manner under Article 142 of the Constitution of India?

11. Is a law made by the State legislature a law in force without the assent of the Governor granted under Article 200 of the Constitution of India?

 12. In view of the proviso to Article 145(3) of the Constitution of India, is it not mandatory for any bench of this Hon'ble Court to first decide as to whether the question involved in the proceedings before it is of such a nature which involves substantial questions of law as to the interpretation of constitution and to refer it to a bench of minimum five Judges?

13. Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuingdirections /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?

 14. Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?

https://www.livelaw.in/top-stories/president-reference-supreme-court-fix-timelines-for-president-bills-reserved-governor-article-143-292229

Courts Must Always Remain Open To Public Debate Criticism Even Subjudice Issues Can Be Debated By People Press Supreme Court

The Supreme Court on Thursday emphasised the importance of public discourse and media scrutiny, stating that courts, as open and public institutions, must remain receptive to observations, debates, and constructive criticism.

The Court observed that even when a matter is sub judice, it is vital for important issues to be vigorously debated by the public and the press. “Every important issue needs to be vigorously debated by the people and the press, even if the issue of debate is sub judice before a court,” the bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan noted.

The bench also underscored the complementary roles played by the judiciary and the media in sustaining a liberal democracy, calling both institutions “foundational pillars” of India's constitutional framework. “For a liberal democracy to thrive, both must supplement each other,” the Court remarked.

The Court made these comments while setting aside the Delhi High Court's finding that the Wikipedia page about news agency ANI's defamation case against Wikipedia was "prima facie contemptuous". The High Court had directed the take-down of the page, which had reported that the judge had warned that Wikipedia would be shut down in India if they did not remove the alleged defamatory remarks made against ANI.

Challenging the High Court's order, the Wikimedia Foundation approached the Supreme Court.

The judgment authored by Justice Bhuyan observed :

"Courts, as a public and open institution, must always remain open to public observations, debates and criticisms. Infact, courts should welcome debates and constructive criticism. Every important issue needs to be vigorously debated by the people and the press, even if the issue of debate is subjudice before a court.

 However, those who offer criticism should remember that Judges cannot respond to such criticism but if a publication scandalizes the court or a Judge or Judges and if a case of contempt is made out, as highlighted by Justice Iyer in the sixth principle, certainly courts should take action. But it is not the duty of the court to tell the media: delete this, take that down.

For the improvement of any system and that includes the judiciary, introspection is the key. That can happen only if there is a robust debate even on issues which are before the court. Both the judiciary and the media are the foundational pillars of democracy which is a basic feature of our Constitution. For a liberal democracy to thrive, both must supplement each other."

Earlier, the farmers' protest matter, the Supreme Court had framed an issue if public protests can be permitted on an issue which is subjudice before the Court.

Case no. – SLP(C) No. 7748/2025 Diary No. 2483 / 2025

Citation : 2025 LiveLaw (SC) 550

Case Title – Wikimedia Foundation Inc. v. ANI Media Private Limited

The Supreme Court on Thursday emphasised the importance of public discourse and media scrutiny, stating that courts, as open and public institutions, must remain receptive to observations, debates, and constructive criticism.

The Court observed that even when a matter is sub judice, it is vital for important issues to be vigorously debated by the public and the press. “Every important issue needs to be vigorously debated by the people and the press, even if the issue of debate is sub judice before a court,” the bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan noted.

The bench also underscored the complementary roles played by the judiciary and the media in sustaining a liberal democracy, calling both institutions “foundational pillars” of India's constitutional framework. “For a liberal democracy to thrive, both must supplement each other,” the Court remarked.

The Court made these comments while setting aside the Delhi High Court's finding that the Wikipedia page about news agency ANI's defamation case against Wikipedia was "prima facie contemptuous". The High Court had directed the take-down of the page, which had reported that the judge had warned that Wikipedia would be shut down in India if they did not remove the alleged defamatory remarks made against ANI.

Challenging the High Court's order, the Wikimedia Foundation approached the Supreme Court.

The judgment authored by Justice Bhuyan observed :

"Courts, as a public and open institution, must always remain open to public observations, debates and criticisms. Infact, courts should welcome debates and constructive criticism. Every important issue needs to be vigorously debated by the people and the press, even if the issue of debate is subjudice before a court.

 However, those who offer criticism should remember that Judges cannot respond to such criticism but if a publication scandalizes the court or a Judge or Judges and if a case of contempt is made out, as highlighted by Justice Iyer in the sixth principle, certainly courts should take action. But it is not the duty of the court to tell the media: delete this, take that down.

For the improvement of any system and that includes the judiciary, introspection is the key. That can happen only if there is a robust debate even on issues which are before the court. Both the judiciary and the media are the foundational pillars of democracy which is a basic feature of our Constitution. For a liberal democracy to thrive, both must supplement each other."

Earlier, the farmers' protest matter, the Supreme Court had framed an issue if public protests can be permitted on an issue which is subjudice before the Court.

Case no. – SLP(C) No. 7748/2025 Diary No. 2483 / 2025

Citation : 2025 LiveLaw (SC) 550

Case Title – Wikimedia Foundation Inc. v. ANI Media Private Limited

https://www.livelaw.in/supreme-court/courts-must-always-remain-open-to-public-debate-criticism-even-subjudice-issues-can-be-debated-by-people-press-supreme-court-291750

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We've Seen A Pattern Of ED Just Making Allegations Without Specific Evidence In Many Cases : Supreme Court Amisha Shrivastava

5 May 2025 5:22 PM Weve Seen A Pattern Of ED Just Making Allegations Without Specific Evidence In Many Cases : Supreme Court Listen to this Article The Supreme Court on Monday remarked that there is a pattern of the Directorate of Enforcement making allegations in the prosecution complaints without referring to specific material to support them. A bench of Justices Abhay S Oka and Ujjal Bhuyan was hearing the bail plea of Arvind Singh, an accused in the alleged Chhattisgarh liquor scam. “We have seen umpteen number of complaints of ED. This is the pattern – just make allegations without any reference to anything,” Justice Oka remarked during the hearing. Also Read - BREAKING| Supreme Court Publishes Appointment Process Of Judges, Details Of Collegium Recommendations From Nov 2022 The Court made this remark after Additional Solicitor General SV Raju, appearing for the ED, failed to show specific material linking Singh to alleged illegal earnings of Rs. 40 crores. Singh's counsel argued that he had spent 10 months in custody and that the ED had filed one main and three supplementary complaints, with the investigation still ongoing. He said the case involved 21 accused, over 25,000 pages of documents, and statements from more than 150 witnesses. Also Read - BREAKING| In A Historic First, Supreme Court Publishes Declaration Of Judges' Assets On Website Raju argued that bail cannot be granted only on the basis of the volume of material and contended that it is a Rs. 2000 crore scam. “If this argument is accepted, then day one you will get bail on the ground of voluminous material. Forget the nature of the scam,” he said. He added that a year had not passed since Singh's arrest. Justice Oka clarified that there is no legal yardstick of one-year custody before grant of bail for bail. Also Read - Supreme Court Issues Notice To Centre & States On NALSA's Petition For Release Of Elderly & Terminally Ill Prisoners Raju maintained that Singh was central to a parallel liquor business. When Singh's counsel cited the bail granted to public servants Anil Tuteja and Arun Pati Tripathi, Raju said those were due to lack of sanction under Section 197 CrPC and that Singh's case was on a different footing, as sanction is not required to prosecute him. Raju informed the Court that as far as Singh was concerned, the investigation was complete. The Court asked the ED to specify the material relied upon to allege that Singh had earned Rs. 40 crore in the scam. Also Read - Motor Accident Claim | Tractor's Insurer Liable For Death Of Passenger In Trailer Due To Tractor's Negligence : Supreme Court Raju submitted that Singh was closely associated with co-accused Anwar Dhebar and that their WhatsApp chats showed discussions on liquor policy, supplier market shares, and supply of duplicate holograms used to sell counterfeit liquor through government shops. He said that the money was clandestinely removed from the shop, while it was falsely shown that genuine bottles had been sold. However, Justice Oka repeatedly pressed the ED for specific evidence connecting Singh to the alleged proceeds of crime. “These are general allegations. What is the material to show that he has earned Rs. 40 crores?” he asked. Raju said the amount was jointly earned by Singh and another person, Vikas Agarwal, who had absconded to Dubai. Justice Oka asked whether Agarwal was being prosecuted. Raju said he is not named as an accused, adding that an LOC had been issued against him. Justice Oka questioned the ED's conduct, pointing out that despite making allegations across four complaints, Agarwal had not been shown as an accused. Raju explained that a complaint can only be filed against him once investigation concerning him is complete, and that there was no requirement to name him in the ECIR. The bench pressed the ED to show how the Rs. 40 crore was connected to Arvind Singh. Raju pointed to bank account transactions of Welcome Distilleries with Anurag Traders mentioned in the complaint. He submitted that Anurag Traders, which manufactured empty bottles, supplied them to two companies linked to the accused instead of supplying them directly to distilleries. These bottles were allegedly sold by the accused's companies at inflated rates, earning a Rs. 5 margin per bottle. Raju said the total volume amounted to Rs. 900 crore and claimed that Arvind Singh is the relative of Amit Singh, who received the money. Justice Oka noted that there was no specific material showing Arvind Singh's connection to Anurag Traders or any of the companies. He asked whether Singh was a director, majority shareholder, or managing director in any of the relevant entities. Justice Oka said, “you have made specific allegation that he earned Rs. 40 crores, now you are not able to show connection of this man with this or any other company. The method should that you should state whether he is the director of those companies, whether is majority shareholder, whether he is Managing Director. Something has to be there.... There is not even an allegation or averment that he is…” Raju responded that Singh was running those companies and sought time to provide the relevant details. He added that a person could be responsible for the conduct of a company even without being a managing director. Justice Oka reiterated his concern, stating, “We have seen umpteen number of complaints of the ED. This is the pattern – just make allegations without any reference to anything.” Raju responded that such an impression was incorrect in this case and requested time to provide all the details. Ultimately, the Court kept the matter for further hearing on Friday. We've Seen A Pattern Of ED Just Making Allegations Without Specific Evidence In Many Cases : Supreme Court Amisha Shrivastava

A restoration of sanity to the constitutional system

P.D.T. Achary

is former Secretary General, Lok Sabha

A restoration of sanity to the constitutional system

The judgment of the Supreme Court of India, on April 8, 2025, namely, The State Of Tamil Nadu vs The Governor of Tamilnadu and Anr., can be called a landmark one as it has brought greater clarity to the constitutional provision dealing with the giving of assent to a Bill by a Governor. In this case, the background to the case is about the Governor of Tamil Nadu, R.N. Ravi, who had kept with him 10 Bills without taking any decision on them for many years. Finally, when the Assembly passed the Bills again and sent them to him, the Governor, instead of giving his assent, as per the mandate of Article 200 of the Constitution, sent them to the President of India for consideration. He sent the Bills to the President only after the Government of Tamil Nadu approached the top court.

The Bench of the Court (Justice J.B. Pardiwala and Justice R. Mahadevan) has now held that the action of the Governor in sending the Bills to the President at that stage to be unconstitutional and has struck it down. The Court also struck down the action taken by the President on those Bills — she had withheld assent. Invoking its special power under Article 142, the Court declared that all those Bills rejected by the President shall be deemed to have been assented to.

It is perhaps the first time in the history of the Court that Bills passed by the legislature of a state and withheld by the President have been declared as assented to by the Court. It is an extraordinary remedy to an extraordinary situation created by an extraordinary action of a State Governor.

In fact, Tamil Nadu is not the only State where the Governor has sat on Bills passed by the legislature. It has happened in Kerala, Telangana and Punjab. Kerala has now approached the Court on the same issue, which is yet to be heard.

The Bill does not die

Article 200 lays down the course of action to be followed by the Governor when a Bill duly passed by the legislature is presented to him. The logical course the Governor should follow is to give assent to the Bill. But if he does not follow this and decides to withhold assent to the Bill, the said Article says that he may declare that he is withholding assent. It would thus appear that once the Governor withholds assent, the Bill will die a natural death. The wording of this Article would convey such a meaning. But this part of the Article was very cogently explained by the Court in State Of Punjab vs Principal Secretary to The Governor of Punjab and Another (2023). The Court made it unambiguously clear that a declaration by the Governor that he is withholding assent does not bring an end to the Bill. It held that withholding of the Bill should be followed by sending the Bill to the legislature for reconsideration as soon as possible.

When the Bill is thus sent to the legislature, it would reconsider it promptly and send it back to the Governor either in the form in which it was passed originally or with amendments suggested by the Governor. Either way, the Governor will have to give assent to the Bill. He cannot exercise any veto against it. The Court has explained this point in the following words: “if the governor decides to withhold assent under the substantive part of Article 200 the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration … if the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200 the governor as the unelected head of the state would be in a position to virtually veto the functioning of a duly elected legislature by simple declaring that assent is withheld without any further recourse”.

This judicial explanation has been carried forward by the Court in the Tamil Nadu case. The Court has reiterated this position, namely, withholding assent is not the end of the story so far as the Bill is concerned but the Governor is mandated to send the Bill back to the legislature for its reconsideration and the Governor shall give assent to the Bill which is sent to him after reconsideration.

The Court’s ‘time limit’ and legality

Three crucial points have been decided by the Court which make this judgment truly historic. The first relates to the time limit fixed within which the Governor as well as the President of India should decide the issue of assent. The minimum period is one month and the maximum, three months. If the Governor or the President does not adhere to this time limit, the aggrieved State can seek the intervention of the constitutional court. Obviously, the Court went to the extent of fixing a time limit in this case because of the fact that the Governor sat on the Bills for years without taking any decision. The Court has said that the Governor does not have the power to exercise a pocket veto or an absolute veto while exercising his power under Article 200.

Following the judgment, questions have been raised on the legality of a time limit under Article 200. The Court has clarified it in the judgment — it has stated that it is guided by the inherent expedient nature of the procedure prescribed under Article 200 and the well-settled legal principle that where no time limit for the exercise of a power is prescribed, it should be exercised within a reasonable period. The Court has viewed the deliberate inaction on the part of the Governor in assenting to the Bills or reserving them for the consideration of the President as a serious threat to the federal polity.

The second point relates to the question of discretion of the Governor in withholding assent or reserving the Bill for the consideration of the President.

The Court has taken the position that the Governor can take either action only on the advice of the Council of Ministers. The judgment says that when the Governor withholds assent, he has to send the Bill to the legislature for reconsideration and when the Assembly sends the Bill back to the Governor with or without the amendments suggested by him, the Governor has to give assent.

But there is a problem with this proposition. For example, what is the occasion when the government has to advise the Governor to withhold assent and send the Bill to the Assembly for reconsideration? When the legislature can send back the Bill after reconsideration without accepting any of the amendments suggested by the Governor, how can it be then said that the Council of Ministers have advised the Governor to propose amendments to the legislature when the government commands a majority there? In fact, on the question of discretion, the Court has not been consistent as different Benches have given different opinions thereon.

Constitutional heads and judicial review

The third, and most crucial, point is about judicial review of the decision of the Governor and the President. The basic proposition laid down by the Court after reviewing a catena of cases is that “no exercise of power under the constitution is beyond the pale of judicial review”. So, it has held that there is no reason to exclude the discharge of functions by the Governor or the President under Articles 200 and 201, respectively, from judicial review.

The judgment has been assailed by the Kerala Governor who has said that this is a case of judicial overreach and that it is the job of Parliament, and not the Court, to amend the Constitution. While it is true that Parliament alone has the right to amend the Constitution, it is the job of the judiciary to explain and interpret the constitutional provisions. Another issue that has been raised by a section of lawyers is that the issues decided by Justice Pardiwala’s Bench can be decided only by a Constitution Bench under Article 145(3). In fact, the Constitution Bench under Article 145(3) decides substantial questions of law as to the interpretation of the Constitution.

Closer scrutiny would reveal that none of these points comes under the category of substantial question of law within the meaning of that Article. As a matter of fact, the Court has only brought out the inherent meaning and amplified the dimensions of it in Articles 200 and 201 with the objective of preventing the subversion of the constitutional order. By doing so, the Court has restored sanity to the constitutional system which had come under severe strain due to plain arbitrariness and deliberate inaction on the part of constitutional authorities.

Decades ago, India had seen the unedifying spectacle of a President sitting on the postal Bill for years, with a helpless Union government unable to do anything. This underscores the need to make suitable changes in the relevant provisions of the Constitution relating to the issue of assent to Bills, whether they are passed by Parliament or a State legislature. The cue must be from this judgment. Therein lies the importance of this judgment.

The importance of the top court’s judgment on the Tamil Nadu Governor lies in the need to make suitable changes in the Constitution that relate to the issue of assent to Bills

Supreme Court Mandates Preliminary Inquiry Before FIR In Certain Offences Related To Speech Expressions

With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.

The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).

The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.

A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :

“ Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”

The Court quashed an FIR registered by the Gujarat Police against Congress Rajya Sabha MP Imran Pratapgarhi over his Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” in the background.

Effects of the words must be considered by the police before registering FIR

The Court also observed that while dealing with an allegation of an offence under Section 196 of the Bharatiya Nyaya Sanhita (BNS), which deals with words promoting enmity between communities, the police officer must ascertain the effects of the words before setting the criminal law into motion.

"The police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of the BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173."

Court explains changes from S.154 CrPC

Section 173(1) of the BNS mandates the registration of an FIR if the information received discloses a cognizable offence. The court noted that provision is largely similar to Section 154 of the CrPC, which was in force before the introduction of the BNS. Under this section, the police are duty-bound to register an FIR upon receiving credible information about a cognizable offence.

However, the Court emphasized the distinction introduced by Section 173(3) of the BNS. Unlike the CrPC, the BNS includes a specific provision allowing for a preliminary inquiry before registering an FIR in certain circumstances.

“sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter.”

The Court reasoned that the purpose of this provision is to act as a safeguard against the misuse of the legal process.

“Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence.”

The Court also elaborated on the distinction between a preliminary inquiry under Section 173(3) and the assessment required under Section 154 of the CrPC. It referred to the guidelines laid down in the case of Lalita Kumari v. Government of U.P. (2014) case, as per which a preliminary inquiry is permissible only when the information received does not disclose a cognizable offence but suggests the need for further inquiry to determine the nature of the offence. However, under the BNS, the inquiry under Section 173(3) extends further, allowing the police to evaluate whether there is sufficient basis to proceed with the registration of an FIR, the Court said.

In the facts of the present case, the Court opined that offences alleged against Pratapgarhi were not made out even without taking recourse to Section 173)(3) of the BNSS.

Other reports about the judgment can be read here.

Case no. – Crl.A. No. 1545/2025

Case Title – Imran Pratapgadhi v. State of Gujarat

Citation : 2025 LiveLaw (SC) 362

Click here to read the judgment

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