Opinion SC judgment in Tamil Nadu governor’s case reminds all constitutional position holders that they engage in ‘constitutional politics’, not ‘party politics’
Spirit of the Constitution cannot be fulfilled if its functionaries are not bound by reasonable deadline
Tamil Nadu Governor R N Ravi (File Photo) What’s the role of governors in India as per our Constitutional? This question has been debated widely, both in politics when the party at the Centre and the state are different, and in landmark rulings of the Supreme Court since Independence. The latest judgment of the Court in a case concerning Tamil Nadu’s governor delivered on April 8 does three remarkable things.
First, the bench of Justices Pardiwala and Mahadevan reads in Article 200 (which lays down the procedure for ‘Assent To Bills’) a specific time requirement by which governors have to make up their mind about a Bill — be it assenting, withholding assent or reserving the Bill for the President’s consideration. Importantly, the language of Article 200 does not mention any timeline at all, thereby giving rise to the practice of “pocket veto”, which essentially means that the governor can “sit” on a Bill for as long as they like without deciding its fate.
The Court said that since, as per Article 163, the Governor is bound by the aid and advice of the Cabinet, if they withhold assent contrary to the latter’s advice, then this has to be done within three months. However, if the state legislature passes the Bill a second time, after the governor has already withheld consent, then he or she has to exercise the option under Article 200 within one month.
This timeline of three months to one month is a significant constitutional development, that at best can be described as the beginning of a new jurisprudence – “right to time”. The spirit of the Constitution cannot be fulfilled if its functionaries are not bound by any reasonable deadline.
One may ask whether this is judicial overreach, reading time limits in constitutional provisions where none exist? But the “purposive interpretation” given to the combined interpretation of Articles 200 and 163 is a genius legal tool, one that lays a solid foundation for the “right to time” being inserted in many other places in the Constitution. The bench did not use the phrase “right to time” but pointed out that in the absence of time limits, the governor’s acts amounted to acting without bona fide.
The second point concerns the biggest challenge to the smooth functioning of quasi-federalism in India – whether constitutional position holders should act in allegiance to the Constitution or to the party that has appointed them. The Court clarified that governors should not promote the interests of the party at the Centre which has appointed them, and instead, act as a bridge, not bottleneck, for a smooth Centre-state relationship. The Court has done a laudable job of reminding all constitutional position holders that they engage in “constitutional politics”, not “party politics”.
Finally, by clarifying that if the governor has withheld consent for the first time, then he or she cannot reserve it for the President if the state legislature enacts the Bill for a second time, the Court has placed “process” over “analysis” as supreme under the Constitutional scheme.
Authors Chip Heath and Dan Heath in their book Decisive explain the importance of “process” over “analysis”. Using the research of Dan Lovallo and Olivier Sibony, Heath shows that when a thousand corporate decisions were studied, it revealed that “process mattered more than analysis by a factor of six”. It’s not enough that constitutional position holders, especially governors, justify withholding assent on the basis of their “analysis” of the Bills passed. Instead, governors , and all constitutional position holders have to follow a “process”. The very concept of “rule of law” and the Constitution is an ode to “process”.
What we have witnessed, especially in the recent past, is the anti-positioning of different constitutional actors, thereby frustrating the development agenda and sacrificing progress over the altar of petty politics. The ramifications of the judgment will go well beyond the 10 Bills that have now been deemed “assented” in Tamil Nadu. It will redefine the relationship between different constitutional actors in India. Time will place this judgment in the annals of our constitutional history as one of the finest.
The writer is an advocate, Supreme Court
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