Opinion SC judgment on Tamil Nadu governor’s case recognises the political value of time and is a win for states
Given that the Union government appoints governors, the judgment is an unequivocal recognition of the Constituent Assembly’s emphasis: The governor is not meant to be an “agent” of the Union.
The judgment considers historical constitutions and other documents that accorded greater discretion to governors as aversive models to the gubernatorial powers finally adopted into our Constitution. (PTI file photo) 
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The Supreme Court’s latest judgment on the extent of the governor’s powers to hold up or prevent a bill passed by a state legislature from becoming law offers much to unpack. Through a close textual reading of Articles 200 and 201 of the Constitution, the SC holds that the governor may take one of three avenues when presented with a bill passed by the legislature: Assent, withhold assent by asking the legislature to reconsider the bill (and with a recommendation of amendments, if she so chooses) as soon as possible, or reserve the bill for consideration by the president. The governor may not necessarily veto laws, either by simply refusing assent or by holding the bill while supposedly deciding whether to give assent.
Crucially, the second option, the SC finds, is a mere deferral of assent. Should the governor take this path, two outcomes follow. If the legislature decides against repassing the bill, it falls. If the legislature passes the bill a second time, in broadly the same way or taking into account the governor’s recommendations, the latter must assent to it. Thus, the Tamil Nadu governor’s decision to reserve 10 repassed bills for the president’s consideration was found to be unconstitutional, and any decision of the president that may have followed, void.
Fettering governors
The judgment considers historical constitutions and other documents that accorded greater discretion to governors as aversive models to the gubernatorial powers finally adopted into our Constitution. The apex court notes that, after independence, a choice was made to divest governors of their power to withhold assent as a step towards upholding democratic and republican ideals. The elected legislature was entrusted with the responsibility of enacting laws. The governor could not, in her individual discretion, frustrate such a representative democratic process.
The SC also examines constitutional practice after 1950, recognising that the realpolitik scope for gubernatorial powers expanded at the end of India’s single-party era with the growth of regional political parties. Drawing on various studies of Union-state relations over the years, it felt the need for timelines to be followed by the governor in making her decision to assent.
On the federal question
On the face of it, this judgment is a win for states. It holds that the governor is bound by the aid and advice of the Council of Ministers with respect to assenting to a bill. Given that the Union government appoints governors, the judgment is an unequivocal recognition of the Constituent Assembly’s emphasis that the governor is not meant to be an “agent” of the Union government.
There is a deeper way in which this judgment is a win for federalism itself.
The very point of India’s constitutional federalism is to maintain a balanced relationship between the Union and the states. While they are independently assured of their exclusive powers in List I and List II of the Seventh Schedule, there is a large realm of powers in List III where they are meant to share powers and ensure cooperation. A lopsided federal relationship, one that privileges either the states’ or the Union’s powers as if they were engaged in a zero-sum game, is contrary to the Constitution’s text, structure, and intention. Thus, even centrally conferred powers ought to be understood in light of their purpose – upholding the constitutional scheme, which can, in many situations, be decentralising.
Upholding the federal relationship, the Constituent Assembly decided to make the governor an appointed, not elected, functionary. The office was conceived of as an impartial constitutional statesperson who would not have any powers to interfere in the internal administration of states. This meant that the governor would not be a partisan actor and would be invested in maintaining the constitutional relationship between the Union and states.
Prescribing timelines
In her insightful 2018 book, The Political Value of Time, Elizabeth Cohen demonstrates that seemingly innocuous inaction by state actors can be a strategic manipulation of time (as in a legally required duration, calendars, or schedules) to reap political gains. This is because time can structure, impact, and limit the rights and powers of both people and state actors. A pocket-veto on bills by the governor is a reflection of her thesis.
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The SC notes, based on earlier judgments, that a bill awaiting assent does not lapse on the dissolution of the state legislature. Yet, perhaps in recognising the political value of time and reasoning that such timelines neither change the object nor the procedure laid down in Article 200, the Court goes on to stipulate a range of timelines for the governor’s decision. The ostensible justification for doing so is merely to offer a benchmark against which courts may decide whether to exercise judicial review on the matters pertaining to Article 200.
Given the court’s recognition of its powers of judicial review over Governors’ decisions, one wonders about the necessity to prescribe timelines to fill the gaps. Surely, the decision as to whether and when to engage in judicial review of the Governor’s inaction could also be left to future courts based on the facts before them.
The writer is a lawyer and constitutional law researcher working on federalism
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