New Delhi, Nov 30 (IANS)The judgment of the five-member Constitution Bench of the Supreme Court, presided over by the then Chief Justice Gavai, was delivered on November 20, on Governor’s and President’s powers in regard to the timeline for responding to a legislative Bill sent up for assent- has produced reactions varying from the verdict being described as ‘a victory for the Union Government’ and ‘a blow to federalism’ to a response of ‘welcome’ by the states of Kerala and Tamilnadu who had approached the apex court against the actions of their respective governors.
The verdict nullifies the April 8 decision by a two-judge bench of the SC in the Tamilnadu case in which strict timelines for gubernatorial assent were laid down and the concept of ‘deemed assent’ was introduced for cases of inordinate delays. That bench had imposed a one-month deadline for governors to act on a re-enacted bill and created a 3-month timeline for bills reserved for the President.
The Constitution bench has clearly explained and taken a stand on various questions and in the process also answered the relevant points raised in the Presidential reference sent to former Chief Justlce Gavai on May 13. It has tried to reconcile ‘the carefully balanced Constitutional structure for the processing of state legislation’ with a way out for handling a situation of ‘will of the people being frustrated by an absence of decision’. It lays down the golden rule that the Supreme Court was meant to prevent a ‘Constitutional deadlock’ but without ‘interfering with the Constitutional design of discretion’.
Some specific points made in the judgement deserve special mention. The court emphasised that Articles 200 and 201 granted the governor and the President a defined ‘textually rooted discretion’ and injecting ‘externally crafted time-bound mandates’ would amount to rewriting the Constitution. The bench explained that while ordinarily governor acts on the aid and advice of the council of ministers, the Constitution also contemplates situations where discretion must be exercised by the governor independently. Art 200 provided one such occasion- the court adding that the governor’s discretion was no doubt not unfettered but it could not be reduced to a purely ‘perfunctory’ role.
Defining the contours of this discretion the Constitution bench reiterated that a governor when presented with a bill had three constitutionally authorised choices- granting assent, returning the bill for reconsideration with comments on why assent was withheld(so long as it is not a money bill) or reserving the bill for President’s consideration. Even after the legislature re-enacts a bill following reconsideration, the governor has the option of either granting assent or reserving it for the President. The bench clarified that the notion that reconsideration eliminated any further option, was contrary to the text and structure of Art 200. In further examining the scope of judicial review, the bench ruled that courts cannot test the merits of a governor’s or President’s decision under Art 200 or 201 nor can they examine the legality of bills before they ripened into law.
However, the judgment allowed judicial review to extend- and this is the crux of the dispute- to cases where a bill is held in abeyance through prolonged and deliberate inaction. In such a situation, the court may ask the governor to act but without requiring the latter to choose any particular one of the three constitutional options. The Constitution bench noted that it was upholding a minimal judicial check to prevent constitutional paralysis without permitting interference with the ‘constitutional design of discretion’. The Constitution bench explained at length why the April 8 judgement could not stand. It declared that the ruling imposing a one month deadline line for governors to act on re-enacted bills and creating a 3-month timeline for the President, was inconsistent with the constitutional text.
It further ruled that by introducing ‘deemed assent’ in cases where its timelines were not met, the April bench usurped the constitutional role of the governor and President, ventured into a domain exclusively reserved for the executive and thus violated the basic feature of separation of powers. The Constitution bench in a reconciliatory interpretation said that the Constitution reflected a ‘dialogue model’ of federal functioning that envisaged deliberation between the Governor, the President and the legislature rather than an arid process of endorsements or vetoes.
The Constitution bench headed by former Chief Justice Gavai also took note of the 2023 judgement of a 3-member bench comprising then CJI Chandrachud and justices Pardiwala and Manoj Misra, which had taken a strong view against inaction of Punjab governor holding that the phrase ‘as soon as possible’ in Art 200 imposed an implicit obligation of promptness and directed the governor to take a decision ‘without further delay’.
The Constitution bench expressed reservation against this judgement on the ground that while addressing an undeniable democratic concern, it had prescribed a judicial timeline and read an obligation of expedition which amounted to an expansion of Article 200 beyond what the Constitution permitted. It held that the words ‘as soon as possible’ in the proviso to Article 200 meant only that the governor could not sit indefinitely on a bill. Also, these words, according to the bench, did not amount to an enforceable constitutional requirement. It will be debated if this part of the judgment of the Constitution bench was not an interpretation of the ‘word of law’ when the Punjab bench followed the ‘spirit of law’ to deprecate the gubernatorial ‘inaction’. The judgement of the Constitution bench in any case specifically acknowledged that indefinite stalling of bills cannot be allowed to defeat democratic governance and ruled that in a suitable case there could be a limited intervention of the court to prevent a ‘constitutional deadlock’. The Constitution bench apparently had in respect of the Punjab verdict, a difference of degree, not of kind.
The reactions of the states-principally Kerala and Tamilnadu -which had gone to the Supreme Court on the issue of governor’s ‘inaction’, include an acknowledgement of the ‘balanced’ nature of the Constitution bench verdict. Their spokespersons have pointed out that their case was against the governor withholding the bills and indefinitely blocking them which was against federalism. The governor according to them, must return the bill to the Assembly if there were issues and these could be discussed further by the assembly. This was emphasised in the Constitution bench verdict also. The states expressed satisfaction that the court agreed about the former approaching the Supreme Court if a bill was being withheld indefinitely and the court then-depending on the merit of the case- directing the governor to take a decision. They maintained that the governor was free to seek clarifications if the bill was found by him or her to be contradicting any provisions of the Constitution but the governor could not deny a bill by saying that it cannot be passed.
The states believed the Constitution bench had reaffirmed this position. What has happened is that the Constitution bench defined the options that a governor had about a bill put up and counselled the governor not to sit on the same inordinately- permitting the state concerned in that case to take it up with the Supreme Court for consideration on the merit of the case. While the idea of the court laying down any general timelines has been firmly rejected by the Constitution bench, the judgment has in fact, allowed the apex court to be an arbiter of whether or not a governor had deliberately sat on a bill in an attempt to block it.
(The writer is a former Director Intelligence Bureau)
–IANS
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