Governor’s powers: Apex court draws red line for itself, but keeps option to push it

In striking this balance, the SC has effectively defined its role in the fraught political issue as that of a facilitator of dialogue between the states and Centre instead of adjudicating it as an adversarial constitutional case. The opinion refers to the Governor’s role in granting assent as the “initiation of a dialogic process.”

The Court refers to this process as “advisory, persuasive, deliberative, mediative, and consultative.” By preserving the right of the state to move court against the Governor, the SC’s opinion underscores that, effectively, the SC can only nudge the executive to initiate this process.

In the April ruling by a two-judge bench headed by Justice JB Pardiwala, the SC had, in its directives, sought to resolve the constitutional impasse when a Governor sits on a Bill for an indefinite period of time, negating the elected state government’s role. The resolution involved strict timelines and uncharted consequences in case of failure to comply with the timelines. The SC’s advisory opinion recognises the same constitutional fissures and its role in resolving it. However, it offers a new prescription — one where it only holds space for the states and Centre to start a dialogue.

Yet, the Court’s opinion acknowledges that “deliberate inaction” can defeat the constitutional scheme.

“The working of our constitutional scheme is premised on constitutional authorities – who are each assigned specific but inter-dependent roles – performing their duties, akin to cogs that keep a clock ticking. They depend on each other, to keep the Constitution humming, and thus, working. They are also constitutionally obligated, to offer checks-and-balances, for the other. Such a constitutional scheme, thus, abhors inaction. In other words, our constitutional scheme works, only if it is worked.”

However, despite this so-called “inaction” by the Governors, “constitutional courts cannot supplant the wisdom and considerations of the Governor and President,” the opinion states.

The opinion underlines that even when actions of the executive are constitutionally challenged, judicial power under Article 142 cannot be invoked by the SC “to achieve results that are contrary to the Constitution.”

On the Court granting “deemed assent” to Bills, the SC’s opinion states that “a takeover, and substitution, of the executive functions by the Judiciary, contrary to the spirit of the Constitution and the doctrine of separation of powers” is impermissible.