The response of the Supreme Court to the Presidential Reference has raised more questions than it has answered. It is constitutionally flawed and politically troublesome.
Let us first examine what the Constitution Bench has done right. It has held that neither the Governor nor the President can withhold a Bill passed by the State Legislature interminably. That is a no-brainer. The Supreme Court could not have held otherwise. Secondly, it is held that, in the event the Governor or the President, as the case may be, sits over a Bill for an unduly prolonged period, limited judicial review is available, that too only on the question of delay.
The advice rendered has both constitutionally and politically problematic consequences. The constitutional consequences are as follows:
(i) The advice negatively impacts the federal structure of the country;
(ii) The subjective satisfaction of the Governor, at the initial stage and later of the President, is immune from judicial challenge; and
(iii) The plenary powers of the State Legislatures can be thwarted by executive fiat, through the Governor or the President, by unduly delaying implementation of the will of the people.
Under our Constitution, the State Legislature has plenary powers to legislate on subjects which are exclusively in its domain, as set out in List-II of the Seventh Schedule. If a Bill is passed by the State Legislature in respect of a subject matter within its exclusive domain, the Governor or the President withholding such a Bill is anathema to the country’s federal structure. Take a Bill where the State Legislature seeks to amend a statute by taking away the Governor’s power to appoint Vice Chancellors to universities. Since that power is conferred by the Legislature, it has the plenary power to take away that right. The Governor cannot have the discretion to withhold assent to such a Bill. Yet, the advice on the Presidential Reference allows the Governor to do so. The executive power of the Governor cannot, as a matter of law, thwart the people’s will reflected in state legislation. In fact, the first proviso to Article 200 stipulates that the Governor may, as soon as possible, after a Bill is presented to him, either assent to the Bill or suggest amendments thereto; and if the House or Houses reconsider the Bill and present it again to the Governor with or without amendments, the Governor cannot withhold assent therefrom. There is no constitutional space for the Courts to advise otherwise. However, the Court, in its advice to the President, seems to have held that even if the Legislature returns the Bill, the Governor can still withhold assent, or reserve it for the President’s consideration, contrary to the first proviso to Article 200 referred above. This is yet another blow to the country's federal structure.
The Court’s advice that the subjective satisfaction of the Governor or the President is immune from judicial review has no constitutional precedent, especially in the context of legislation which reflects the people’s will. In other words, the Executive’s opposition to the people’s will cannot be the subject matter of a judicial challenge. Even the President’s subjective satisfaction in the imposition of the President’s Rule in a state and the rejection of a mercy petition are also subject to judicial challenge. Here, the embargo on the judicial challenge is with reference to legislation expressing the people’s will. Such an embargo is not only contrary to the federal structure, but also seriously jeopardises the constitutional premise that the will of the people must be respected, and that the executive cannot thwart it on the basis of subjective satisfaction.
There can be only one occasion for the Executive to reserve a Bill for the President's consideration. It is when the Governor believes that the Bill relating to a subject matter in the Concurrent List (List-III) trenches upon the law enacted by Parliament. In that case, the Bill can be sent back under Article 200, as soon as possible, to the Legislature with a message to that effect, which the Legislature is constitutionally bound to consider. However, if in the Legislature’s opinion, there is no conflict and the Bill is passed again, there is no space for the Governor or the President to hold back that legislation. In such an eventuality, the matter will be decided by the affected parties through a judicial process under Article 226 of the Constitution. There is no other reasonable way to interpret Articles 200 and 201 of the Constitution.
Let us now deal with the problematic political consequences of the advice.
Once the Legislature clears a Bill, how long the Executive can sit over it is not clear from the Court’s advice to the President. How long is too long is unclear. What a prolonged delay means is unclear. How the facts and circumstances determine such an issue is unclear. No answers to why the assent of the Governor be prolonged; why should the Governor have to reserve it for the President’s consideration; and why should the Executive not be obliged to give reasons for opposition to the Bill. The reasons for the Executive's inaction will not be before the Court, as that part is not justiciable. This is going to lead to litigation. The nature of court processes, which are tardy and invariably delayed, will adversely impact the implementation of the enactment, apart from serious political implications.
The court is, I suppose, aware that in recent years, Governors have acted beyond their constitutionally assigned roles, especially in states where the opposition is in power. We have seen this happen in Tamil Nadu, West Bengal, Kerala, and elsewhere. The court cannot be blind to the realities of the Governors’ actions or inaction, which are all in the public domain.
I am afraid the advice rendered by the Court, in response to the Presidential reference, is not well thought out. Instead of providing clarity, it adds uncertainty to the passage of Bills, which reflect the people’s will. A recent Supreme Court judgement that sought to provide some certainty amid Governors’ prolonged inaction has been overturned.
Kapil Sibal | Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)
