The presidential reference to the Supreme Court following the latter’s judgment that set deadlines for gubernatorial and presidential action on Bills was not an expression of innocent constitutional curiosity. In State of Tamil Nadu v. Governor of Tamil Nadua two-judge Bench of the Court, in its adjudicative jurisdiction, essentially did two things: (i) It fixed a time limit for Raj Bhavans and the President in general for acting upon the Bills passed by the state legislatures; and; (ii) it evolved an idea of deemed assent, and invoked it when there was unreasonable and inordinate delay on the part of the governor of Tamil Nadu in acting upon Bills passed by the assembly that had been sent to him.
Now, the presidential reference under Article 143 of the Constitution has led to an opinion by a five-judge Constitution Bench, which, in its advisory jurisdiction, overturned both the principles outlined in the two-judge Bench’s judgment. Although the impact of the Tamil Nadu The judgment will remain intact on the laws so promulgated, its precedential value will be substantially damaged on account of the opinion given by the larger Bench. Henceforth, a state legislature faced with an inexcusable gubernatorial or presidential delay on a Bill may not be able to seek a deemed assent with an element of certainty, based on the Tamil Nadu judgment.
With the Court having viewed deliberate inaction on the part of governors as a serious constitutional obstacle in our democracy, it was incumbent upon the Constitution Bench to prescribe concrete solutions. Even its indulgence for “limited judicial review” and “limited mandamus” may not yield any result in the absence of a concept of deemed assent, at least in extreme cases where the gubernatorial or presidential laches are ostensible and unjustifiable.
Every adjudication, including constitutional adjudication, happens against the background of realities on the ground and the experience of the litigants, including the State. A reference happens more on the theoretical plane and, therefore, in advisory jurisdiction, the Court is called upon to carry out an exercise that is primarily theoretical. This explains the pragmatism in the two-judge Bench decision and the total lack of it in the five-judge Bench decision. Pertinently, the five-judge Bench’s opinion is vague and self-contradictory on certain aspects. It does not explain how the constitutional scheme, or the discretion of the governor or President is impacted by a generous timeline. It foresees the contradictions between various functionaries, but refuses to resolve them.
Many of the questions posed by the President were either answered by the Supreme Court previously in various cases, including the Tamil Nadu case, or were so abstract or irrelevant, that they did not merit any answer. Ideally, the Court should have adopted a realistic and assertive approach and returned the reference. But the Court, instead of doing so, chose to hear the matter extensively and give a detailed opinion. The present judicial opinion reopens issues which were effectively resolved by the Tamil Nadu judgment.
The Constitution Bench made a textual reading of Articles 200 and 201 of the Constitution dealing with the functions and powers of the governor and the President, respectively. It was unquestioning of the wisdom of constitutional functionaries and took it for granted. It was unanimously euphoric about the “dialogic process” embodied in these provisions, which often remains absent in today’s political realm. Thus, a kind of judicial romanticism emerged, which shared the dream of “an advisory, persuasive, deliberative, mediative and consultative” relation between the states and the authorities representing the Centre.
That there is possibility for aberration from this constitutional aspiration is at the root of the issue. The people’s will manifested through the legislative bodies in the states ruled by political entities opposing the dispensation at the Center needs to be honoured. The constitutional text does not provide a guarantee for the same. This is a deficit in our constitutional scheme that the Court was supposed to deal with.
This was why, under compulsion, the two-judge Bench in the Tamil Nadu The case synthesized the idea of deemed assent. The Bench, by doing so, has served two purposes: (i) It avoided the embarrassment of holding governors in contempt, which again is not permissible based on the complete immunity provided to them by Article 361 of the Constitution, and; (ii) It ensured the finalization of the Bills which were legitimately entitled to an assent. The country’s federalism required this shield to protect itself from politically-motivated governors who act as per the diktats from the Centre.
The present verdict, which erased the concept of deemed assent, has the effect of empowering the erring Raj Bhavans by magnifying their delusions. The Constitution Bench has adopted a centralist approach that disarms the states even during the exigencies. It strengthens gubernatorial arbitrariness, which, in political terms, can weaken the people’s will.
The Tamil Nadu The judgment was India’s federalist proclamation that offered a constitutional remedy for political mischief. The apprehension that taking a cue from the present opinion, Raj Bhavans in the Opposition-ruled states might create more hurdles in the process of legislation and governance is well founded. Therefore, a demand for constitutional amendment in tune with the directives in the Tamil Nadu The case is perfectly justified.
One can only recall Justice Oliver Wendell Holmes who opined that the life of the law has not been logic, but experience.
Kaleeswaram Raj is a lawyer at the Supreme Court of India. The views expressed are personal
