Today is Ambedkar Jayanti, the day we honour B R Ambedkar, the chief architect of our Constitution — a document born out of careful deliberation, debate, and the dreams of a new Republic. A Constitution that was meant to be a charter of limited powers, structured balance, and democratic accountability.
It is ironic, then, that on this very day, one is compelled to reflect on how that very Constitution is being turned upside down — not by Parliament, not by the Executive, but by those sworn to uphold it.
I always thought each state of the Union had just one governor. But Tamil Nadu has three. The constitutional governor, the chief minister who fancies himself one, and now, a two-judge bench of the Supreme Court which has effectively become the real governor.
I believed that a Bill on a subject in the State List could become an Act only when it got the assent of the governor. Wrong. Judges of the Supreme Court can deem assent, making a Bill into an Act.
All that Civics had lulled me into believing that adding time limits within which a governor has to assent to Bills would require approval by a two-thirds majority of members present in both Houses of Parliament. Wrong again. Any two-judge Bench of the Supreme Court can amend any Article of the Constitution in any manner, at any time.
Apparently, the Constituent Assembly did not finish its work on November 26, 1949. It is still in session. Only now its members have been replaced by judges of the Supreme Court.
We truly have a living Constitution. So alive, in fact, that it shapeshifts depending on what judges feel it ought to say — not what it actually says.
I feel so cheated having to study all that Civics in school and Constitutional Law later. Because clearly, the rules have changed.
What the Supreme Court did in State of Tamil Nadu vs Governor of Tamil Nadu is not interpretation — it is re-legislation. By invoking Article 142, it has sought to override the plain language of Article 200, set time limits for the Governor to act on a Bill, compel the President of India to seek the Court’s opinion, and even open the door for mandamus against the President if that advice isn’t followed. This is a breathtaking expansion of power that would have made even the colonial viceroy blush.
Let’s examine what Their Lordships have done.
They have taken a dispute between a state government and the governor — arising from a delay in assenting to Bills — and used it as a launchpad to redefine the federal architecture. They have gone on to declare that if the President does not act on the Court’s advisory opinion under Article 143, a state can come back and seek a mandamus from the Court.
In other words, the Supreme Court now believes it can direct the President of India to grant assent to Bills. That would make the Court — not the President — the final authority in legislative matters concerning states. This, in one stroke, demolishes not just the doctrine of separation of powers, but also the scheme of Articles 200, 201, and 74 of the Constitution.
Article 74 says the President shall act on the aid and advice of the Council of Ministers. If the President refers a matter to the Supreme Court under Article 143, such reference has to be made on the advice of the Union Cabinet. By saying that the President “ought” to seek the Court’s opinion, the Supreme Court has effectively taken over the function of advising the President — sidestepping the Cabinet and reducing Article 74 to decorative wallpaper.
What Their Lordships also need to ponder over is this: If Courts start functioning not according to what the Constitution says, but according to what judges feel it should say; if they stretch and strain constitutional provisions to give unto themselves powers that the Constitution has not conferred; if they make every action of other organs of government subject to judicial diktats, even in cases where the Constitution provides otherwise; if they ignore the clear command of Article 145(3) which says a Constitution Bench of at least five judges must decide cases involving substantial questions of law; and if they pass orders affecting all states without issuing notice to them — then they are not interpreting the Constitution. They are weakening its very foundations.
And if this goes on, the day is not far when the legislature may feel tempted to intervene in what has been considered judicial turf. There is, after all, a very good case for setting up special appellate courts to dispose of the mountain of appeals that have been pending for years, starved of headline value and judicial attention.
An even better case can be made out for fixing time limits within which the Supreme Court must dispose of various matters. Article 145(1) recognises Parliament’s power to regulate the procedure of the Court. Parliament can very well make laws on how benches are formed, how cases are listed, or even lay down timelines for judgments. Of course, the Supreme Court will likely strike it down. But Parliament can legislate again. Can it not?
Will the Supreme Court injunct Parliament from legislating? Can it do so? Should it?
Their Lordships need to appreciate that baiting the bear is a dangerous game.
Restraint is the true measure of how well power is exercised. Every citizen in a democracy has the right to expect restraint from those who wield power. And more so from those who wield it without direct democratic accountability.
Judges take an oath to uphold the Constitution — not to amend it in open court. But if upholding now means whatever a Bench of two thinks the Constitution should have said, then we have slipped into a new constitutional order — one that no one voted for, and no one debated.
I do hope the matter is reviewed by a larger bench and judicial restraint is restored. Who will seek review in the present case is, however, a question that is moot. But I remain of the opinion that any state of the Union can seek review of the judgment on at least three strong grounds:
(a) The judgment is applicable to all states, but no notice was issued to them nor were they heard.
(b) The matter involved a substantial question as to the interpretation of the Constitution and could not have been decided by a bench of less than five judges.
(c) Addition of time limits in Article 200 can only be done by Parliament under Article 368 — not by the Supreme Court under Article 142.
If four or five states were to file such petitions, perhaps the Court would be compelled to pause and reflect. Though in today’s political atmosphere, the chances of that happening are dismally low.
The judgment in State of Tamil Nadu vs Governor of Tamil Nadu is not merely another case in the Court’s long list of activist verdicts. It is an audacious attempt to insert the judiciary into the legislative and executive domains, all in the name of constitutional morality. But morality cannot become the alibi for usurpation.
Ambedkar warned us against the “grammar of anarchy”. What we are witnessing today is the grammar of judicial supremacy — unfettered, unchallenged, and unchecked.
On his birth anniversary, I cannot think of a greater disservice to his legacy.
The writer is managing partner, Parinam Law Associates, and vice president, Mumbai BJP
