The Supreme Court Five Judges Bench, in its opinion in Presidential Reference, has substantially diluted the two judges bench decision in State of Tamil Nadu vs Governor case. 

Imagine this situation: The State Legislature passes a Bill and it is sent for Governor’s assent. As Article 200 of the Constitution says, the Governor has three constitutional options before him. (1) To assent (2) reserve the Bill for the consideration of the President (3) withhold assent and return the Bill to the Legislature with comments.  The Governor withholds the assent and returns the Bill to the Legislature. The Legislature then returns the Bill to the Governor. 

Now, as per the Supreme Court’s opinion, the Governor has two options: (1)To assent (2) reserve the Bill for the consideration of the President.

If the Governor reserves the Bill for President’s consideration, Article 201 gives two options to the President. (1) To assent (2) To withhold.

Now, it is crucial to discuss the provisos to Articles 200 and 201 of the Constitution. The words “shall not withhold therefrom” which is present in the first proviso to Article 200 is conspicuously absent from the proviso to Article 201. This means that unlike the Governor, the President’s option to “withhold” does not vanish once the Bill is returned by the State Legislature.

In the TN Governor case, the Court had held that, in the following situations, the Courts can invoke judicial review powers: (1) Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court. (2) Where the Governor reserves a bill for the consideration of the President and the President in turn withholds assent thereto then, it shall be open to the State Government to assail such an action before this Court. 

However, in its opinion in Presidential Reference, the Supreme Court has held that the discharge of the Governor’s function under Article 200, is not justiciable. The Court cannot enter into a merits review of the decision so taken. Similarly, it held that the President’s assent under Article 201 too, is not justiciable. 
 
Does this mean that the President can continue this “withhold” option multiple times and this cannot be challenged before the Supreme Court? The Supreme Court has not answered this question because the Presidential reference did not seek opinion in this regard. Maybe that is for the future.