5 months ago
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In April 2025, the Supreme Court of India delivered a judgement that yet enactment an extremity to the sordid saga of unelected Governors stymying Bills passed by elected State legislatures by indefinitely delaying assent. In State of Tamil Nadu vs Governor of Tamil Nadu, the Court imposed definitive timelines for the Governors to act, and said violating the timelines could pull judicial intervention, whereby courts could deem the Governor’s unexplained inaction arsenic assent.
For Opposition-ruled States beleaguered by the obstructionist tendencies of Raj Bhavan, this democracy-affirming verdict that guaranteed legislative supremacy successful the law-making process was a uncommon victory. It promised to extremity the bouts of argumentation paralysis caused by misusing gubernatorial powers that near State priorities successful a procedural limbo.
However, earlier the States could meaningfully enactment the April verdict to use, the Court has laid the crushed for a people reversal. Answering a Presidential Reference, successful Special Reference No. 1 of 2025, the Court has sought to dismantle the law subject that the earlier verdict promised. It held that judicially imposed timelines connected the Governor had nary textual ground successful the Constitution; that deemed assent was anathema to the law scheme; and the discretionary powers of the Governors and the President person an elasticity that, apparently, could accommodate delays successful assenting to Bills.
The (now former) Chief Justice of India, Justice B.R. Gavai, who led the Constitution Bench that delivered the opinion, said successful an interrogation that the advisory sentiment does not overrule a judgment. However, determination is nary denying the information that an advisory sentiment from a Constitution Bench that has sought to “clarify” the presumption of instrumentality connected a highly contested governmental substance volition transportation large persuasive heft.
A one-sided dialogue
In responding to the Presidential Reference, the Court has presented Article 200, which deals with the Governors’ powerfulness to springiness assent to a Bill, and its provisos, arsenic a repository of procedures that trigger a law dialog betwixt law functionaries. What the Bench has failed to recognise is that a dialog requires due and timely effect from some sides to beryllium effective.
The cardinal accusation against the Governors was that they misused their powers and turned this “dialogue” into an obstructionist maneuver to frustrate governments successful Opposition-ruled States. The judgement successful State of Tamil Nadu remedied precisely this problem. By mounting wide timelines for the Governor to enactment erstwhile presented with a Bill, the Court ensured that these unelected representatives of the Union authorities did not person their powers nether Article 200 into a instrumentality to predominate the legislatures.
Once the dialog was initiated, the judgement made prolonged soundlessness connected the portion of the Governor oregon repeated attempts to sabotage the Bills constitutionally unviable. If Raj Bhavan resorted to specified tactics and violated the acceptable timelines, a law tribunal had the enactment to state that the Bill was deemed to person been assented.
While batting for law dialog successful Special Reference No. 1, the Court allows kid-glove attraction for motivated silence. The constricted judicial alleviation that prolonged inaction entails is lone a absorption to the Governor to marque a decision. At the aforesaid time, the notation tribunal reverses important limitations that the judgement successful State of Tamil Nadu imposed, some connected what Governors could bash successful the archetypal lawsuit erstwhile a Bill is presented for their consideration, and successful the 2nd lawsuit erstwhile the State legislatures nonstop the Bill backmost aft reconsideration. In the former, well-reasoned timelines were deemed unacceptable. In the second case, the Court has efficaciously legitimated a law achromatic spread into which the Governors could nonstop Bills for a soundless death.
An undermining of clarity
Under the archetypal proviso to Article 200, the Governor tin nonstop a Bill backmost with a connection to the State legislature for its reconsideration. The plain substance of the proviso makes it abundantly wide that if the State Assembly returns the Bill to the Governor with oregon without amendments, the lone enactment disposable for the Governor astatine this signifier is to assent.
This presumption is undermined successful Special Reference successful which the enactment of referring the Bill to the President is afforded to the Governor nether each circumstances aft the Assembly returns the Bill and not conscionable exceptionally arsenic laid down successful State of Tamil Nadu. In different words, the binding quality of the reiteration of a returned Bill successful the substance of assent has been negated by the judgment, contrary to the explicit substance of the Constitution. The removal of an explicit safeguard successful the law strategy militates against the evident originalism down the Court’s wide reasoning that the Governor’s immunity nether Article 361 acts arsenic a barroom against ineligible scrutiny.
The rule that what cannot beryllium done straight cannot beryllium done indirectly has been fixed the go-by. On the 1 hand, the Governor’s prolonged inaction connected Bills is frowned upon by the Court and is termed constitutionally impermissible, but connected the other, the Court facilitates the vexation of the legislative process by allowing unfettered discretion successful referring immoderate Bill to the President and adjacent permitting it successful the 2nd lawsuit successful the lawsuit of the legislature re-enacting the Bill.
The Reference gave a uncommon accidental to the Court to bring the Governors’ unilateral notation of Bills to the President (a constituent raised by respective States earlier the Sarkaria Commission connected Centre-State relations) nether judicial scrutiny, but it has ended up conferring unfettered discretion connected Governors to notation adjacent reconsidered and re-enacted Bills to the President of India, careless of the circumstances.
False equivalence
The Court invokes the thought of ‘checks and balance’ to warrant its expansive interpretation. The referral of reconsidered Bills to the President is allowed due to the fact that of the fearfulness that the Assembly whitethorn present amendments that could make repugnancy with cardinal laws oregon interruption the Constitution by immoderate different means. However, this ignores the basal tenet that the validity of laws tin ever beryllium tested successful courts of law, portion denial of assent is near without redress.
While ‘checks and balances’ are portion of the law scheme, it is not a cosmopolitan dogma that tin beryllium invoked to frustrate the functioning of immoderate 1 branch. It is somewhat unusual to posit the Governor’s work to ‘protect and support the Constitution’ arsenic a countervailing powerfulness against the legislature perchance breaching law principles. For 1 thing, the powerfulness of granting assent is simply a procedural facet of law-making and cannot beryllium elevated to the level of a preliminary judicial reappraisal by Raj Bhavan. Any specified conception of the assenting powerfulness volition render it much a ‘check’ than a ‘balance’.
In the eventual analysis, the verdict, beryllium it legally binding oregon inexorably persuasive, is an lawsuit of law retrogression; a retreat from a principled restraint connected gubernatorial powerfulness and an unwanted fillip to the Union’s domination implicit the States.
Sruthisagar Yamunan is simply a doctoral campaigner successful comparative law instrumentality astatine the Central European University, Vienna. K. Venkataramanan is simply a erstwhile journalist
