Opinion With its verdict on Tamil Nadu governor, Supreme Court has upset balance of power

Content of the Bills

The content of these 10 contentious bills, however, completely changes the factual context and consequent legal repercussions. All 10 bills pertained to power tussles between the state government and the Governor of Tamil Nadu. Through these bills, the state sought to transfer the powers of inspection, inquiry, and administrative oversight of different state universities from the Governor to itself, as well as the power to appoint the vice chancellors of these educational institutions, nullifying the Governor’s power. The whole purpose of making Governors chancellors of universities was to insulate educational institutions from political influence.

In the present case, the bills, after being passed by the state legislature, were placed before the Governor for his decision. He withheld his assent from the bills. Upon withholding assent, the state government approached the Supreme Court in November 2023, challenging the Governor’s power to withhold Bills and to decide upon the boundaries of Article 200. The Court delivered a judgment stating that the Governor must be mindful of the fact that he was not an elected representative. It also stated that withholding assent would not result in the death of a bill. On the shoulders of this judgment, the TN Assembly re-enacted the bills and placed them before the Governor. Again, there was no inaction on the part of the Governor, who now, under these extraordinary circumstances, reserved the bills for the assent of the President.

Legal repercussions

The impact of the judgment delivered by the SC must be delved into because of the massive ramifications it may have on the future of law-making at the state level. Article 145(3) of the Constitution is clear that the minimum number of judges who are to sit for deciding any substantial question of law regarding the interpretation of the Constitution will be five. In this case, a two-judge Bench of the Supreme Court invoked the Court’s extraordinary powers and delivered an unprecedented interpretation of Article 200 and other aspects of executive decision-making, practically legislating upon the scope and extent of the powers of the President. The Court is not permitted to do so, even under its extraordinary jurisdiction.

The Court has written the present judgment in a manner that reflects that it is providing an interpretation of Article 200 (Assent to Bills). However, if the Court really believed so, why would there be a need to exercise its extraordinary powers and invoke Article 142? Interpreting the Constitution is not an extraordinary act – it is the job of the court.

When the current dispute was earlier litigated before the Supreme Court, it held that withholding assent is the same as resending the bill before the Assembly for reconsideration. A literal interpretation of the provision would reveal that withholding assent cannot be said to mean the same as resending it before the Assembly, because under the constitutional scheme, the unavoidable eventuality of resending before the Assembly is providing assent. How can two diametrically opposite actions be said to be read to mean the same? Reading it as the latter would also mean that the word “withhold” in Article 200 is superfluous, which goes against the basic rules of interpretation. It is in this situation that the Governor reserved the bills for the consideration of the President.

The constitutional scheme for passing bills at the state level envisages three possible actors – the state assembly, the Governor and in certain circumstances, the President. What the Constitution absolutely does not envision is deemed passing of bills by the Supreme Court of India. This not only dangerously toys with the principle of separation of powers, which forms the foundation of our Union, but also gives rise to multiple other problems, one of which is mentioned herewith. The Supreme Court, as a non-legislative body, has no process of discussion, deliberation or debate, unlike Parliament or a state assembly. As a result, any time period fixed by the Court for deciding upon bills by the President and Governor seems like an arbitrary “firman”. There have been several commissions, such as the Sarkaria Commission and the Punchhi Commission, that have deliberated upon this issue. While their reports aren’t compulsorily implementable, they did not provide for such a short timespan.

The Court itself has, however, arbitrarily fixed a maximum period of three months for the Governor to take any action. The bills should, therefore, be deemed to be passed at least three months from the date on which they were re-presented before the Governor. Not allowing that window shows non-application of mind.

The Court has further given a blanket ruling that the Governor has no discretion and is duty-bound to act on the aid and advice of the Council of Ministers. Not only does this decision go against the exception carved out within Article 163, which permits the Governor to act independently where required, it is also problematic in situations where a state government with a supermajority may undermine the mandate of the Concurrent List that grants the Union a greater say in matters enlisted in List 3.

Finally, the Court did not restrict itself to the Governor. If the Court felt that the illegality occurred the moment the Governor reserved the Bill for the assent of the President, the cause of action should have been restricted to that event. The Court seems to have committed a serious breach into the executive’s domain the moment it went on to extend its mandamus to the office of the President of India.

The way forward

Given these inconsistencies and illegalities, the office of the Governor of Tamil Nadu would be well within its rights to file a curative petition before the Supreme Court. This is an imperative step to restore not just the balance of constitutional morality that keeps this Union indestructible, but also to restore the dignity of the august office of the President of India.

The writer is a lawyer