At a felicitation function shortly after assuming office as the Chief Justice of India, Justice B R Gavai said that while deciding cases, the judiciary cannot afford to ignore ground realities and view legal matters in strict black-and-white terms. The Supreme Court and the High Courts have always integrated the political and social realities of the time to decide constitutional cases. Yet, on the Presidential Reference on the Governor’s powers under Article 200, the Supreme Court chose to ignore the political realities of the time by delivering an opinion that exudes mere optimism.
In its opinion, the Court says that the Constitution incorporates a dialogic process between the constitutional functionaries which is a potent checks-and-balances system. But the question remains: Can we expect this dialogue to continue in a constructive manner? Will there be a dialogue between functionaries if there is overt and patent animosity due to an over-stimulated political environment? In a political climate where a governor has walked off from the assembly without making the customary address and where a chief minister blocks the governor on Twitter, the SC’s opinion only adds to the confusion rather than addressing it. The Court adopted a textual interpretation of the Constitution without considering the crucial fact that the governor holds immense power to potentially stall legislative and policy initiatives of the state.
The five-judge bench also found that the judgment in State of Tamil Nadu vs Governor of Tamil is not correct as it failed to apply various binding precedents. In effect, the precedential value of the judgment has been questioned, and now it cannot be referred to by any state if the governor chooses to not act. By removing the timelines imposed in the judgment for the governor to act under Article 200, the Court has restored the ambiguity in the Constitution. Even though Article 200 permits the governor to return a bill to the assembly without assent or withholding, the provision does not prescribe a timeline. As the Constitution requires the returning of the bill to be done “as soon as possible”, the question as to how soon is “as soon as possible” has been left unanswered, to the benefit of the governor. The concept of deemed assent developed by invoking Article 142 of the Constitution has been set at naught. The Court says that the concept of deemed assent of bills amounted to supplanting constitutional provisions, contrary to the Constitution itself. But the collegium system of appointment of judges is one such concept supplanted on the Constitution by way of judicial interpretation. Without addressing the fact that Article 142 can indeed be applied to iron out the creases and to achieve complete justice, the Court exercised judicial restraint in not stepping into political thicket.
Even though the SC invoked Article 142 in AG Perarivalan v State, Through Superintendent of Police to set free the man convicted for his involvement in the assassination of Rajiv Gandhi, giving effect to the state government’s recommendation for pardon, the Court walked a tightrope to distinguish the case by holding that Perarivalan was a case where the Court interfered under Article 142 in the executive power of the governor. But the Supreme Court has always interfered with non-executive functions of the governor, including in the Nabam Rebia case, where it held that the direction of the governor to hold assembly was void.
Further, after having said that the Court cannot direct the governor to grant assent, the opinion leaves a window open for the party to approach the Court seeking limited direction against the governor just to take action. However, it will be difficult to enforce an order against the governor. The opinion is silent on the governor’s potential inaction even after a court order. Would such conduct amount to contempt?
In a recent judgment striking down the Tribunals Reforms Act, 2021, the SC referred to B R Ambedkar’s famous statement in the Constituent Assembly that “form of the administration” cannot be “inconsistent” with the spirit of the Constitution. The governor can sit on bills and frustrate the actions of an elected government, having direct bearing on federalism. Any delay will be inconsistent with the spirit of the Constitution. Expecting a dialogic process to settle potential tussles between constitutional functionaries is mere optimism. Ambiguity in defining the role of the governor in granting assent can only give rise to disputes.
The writer is advocate-on-record, Supreme Court
