Opinion Supreme Court has created grounds for more Centre-state conflict — and undermined itself
If Governors can push the boundaries of their power to stymie state governments, we might see state governments pushing constitutional boundaries as well, leading to more constitutional crises
In overturning the law laid down so comprehensively, the SC seems to think its own judgments are not worth the paper they are written on. 
In an earlier article, I had highlighted three unprecedented things that the two-judge bench of the Supreme Court had done in State of Tamil Nadu v Governor of Tamil Nadu. Two of these (issuing a mandamus to a governor refusing assent to a bill and giving deemed assent to a bill if the Governor takes too long to), I argued, were welcome to check the unconstitutional behaviour of Governors in Opposition-ruled states. One of these, giving courts the power to direct the President on giving assent to Bills, was deeply problematic (‘To count every one in,’ IE, August 16).
In its advisory opinion delivered in response to the Presidential reference on these issues, the Supreme Court has rolled back most of what the bench in State of Tamil Nadu had done, though the laws approved in the State of Tamil Nadu judgment have not been impacted. While this was perhaps necessary when it came to State of Tamil Nadu’s “guidelines” in respect of the President, a wholesale rejection of the law laid down in that case was unwarranted.
In overturning the law laid down so comprehensively, the SC seems to think its own judgments are not worth the paper they are written on. This has happened all too often recently. Most recently, the salutary judgment in Vanashakti v Union of India, which put an end to post facto environmental clearance — any oxymoron if there was ever one — was recalled in order to be heard afresh on flimsy grounds. It is not as if old precedents or patently wrong judgments which ignored facts and law are being recalled. A fairly recent judgment or order of the court is recalled after one of the judges on the bench retires – or the matter is referred to another bench constituted by the Chief Justice. Such incidents risk turning bench hunting from a devious practice to an accepted procedure in the Supreme Court.
In overturning State of Tamil Nadu, the SC has spilt some token ink on how governors and presidents ought to uphold the Constitution but given governors a free pass to ignore the Constitution. A governor may now simply refer any bill passed by a state legislature to the President for their assent, whether or not such assent is required by the Constitution. No court is permitted to step in to preserve a modicum of constitutionalism. The Court, like the Constituent Assembly, has given an unelected, unaccountable authority much power and hoped that no tyranny will result from the use of this power.
On the fact of it, legitimising such practices by Governors does grave damage to the fundamental principles of federalism and democracy. Reading the verdict, one gets the sense that the court is fine with all these principles in theory – just not in practice. Should the Governor ignore this judgment and simply withhold assent without reasoning, the Supreme Court can at best politely urge the Governor to take some decision – something that the Governor can once again ignore. Without consequences.
A consequentialist reading of the verdict suggests that the Supreme Court has not clarified anything – it has simply set the stage for the next conflict between governors and Opposition ruled-state governments. If Governors can push the boundaries of their power to stymie state governments, we might see state governments pushing constitutional boundaries as well, leading to more constitutional crises. State governments may be tempted to stretch the meaning of money bills and the scope of delegated legislation just to avoid constitutional conflict with governors.
Ultimately, a judgment such as this speaks poorly of the court’s credibility as a neutral arbiter of constitutional values. There are no easy solutions to the problem of governors abusing their constitutional offices to serve the interests of the Union government. The office is a colonial relic that has been used to wreak havoc on constitutional rule in India. Unfortunately, the Supreme Court, in answering the Presidential Reference the way it has seems to think that’s an acceptable state of affairs.
The writer is an advocate based in Bengaluru
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