It has been famously said that no case is ever finally decided until it is rightly decided. The Supreme Court’s opinion in the latest Presidential Reference falls in that category. It has turned the Constitution on its head. When references under Article 143 are made, Constitution Benches are set up to illumine and resolve a constitutional issue, harmonize conflicting views and settle the law. But doubts should not be contrived and the legal landscape left dismal and cloudy. The effect of the present reference and the opinion is just that.
The opinion bristles with faulty propositions that would cut into the vitals of our constitutional democracy. Amongst the many flaws, however, two take the crown. The first is that the Governor is not necessarily to act on the aid and advice of the ministry in discharging his functions under Article 200. This is in the teeth of the well settled constitutional position for 75 years and the line of consistent judgments. Accepting this will create two parallel centres of power which the Constitution never envisages.
There is hardly any substance in the view that Governors under our Constitutional dispensation are different from the appointees under the colonial regime. We have a democratically elected republic, as the Court points out. But the Governor is an unelected nominee of the Union government. Experience over the decades has shown that with governments of different parties at the Centre and the states, Governors quite often act as agents of the central government or worse still of the party in power at the Centre even in the matter of assent. The Court’s proposition is built on quicksand.
The Constitution has adopted the Cabinet form of representative democratic government tersely described as based on the ‘Westminster model’ where the King reigns but does not rule, the real power being vested in the Council of Ministers on whose aid and advice he is to act. It is now well established that the position of the President and the Governors is akin to that of the constitutional monarch in Britain. It is settled and clear that they have to exercise their powers and discharge their functions on the basis of ministerial advice by which they are generally bound except where it is otherwise prescribed constitutionally or in exceptional cases which by their very nature are not amenable to ministerial advice. That is the basic major premise.
The Constitutional provisions in that regard are all pervasive and do not make any distinction between one function and another. That they have to act in accordance with ministerial advice holds good even in the matter of assent to Bills. If this were not the legal position, democracy itself would be in peril. For, the Governor not being answerable to anyone will become all powerful which is an antithesis to the concept of democracy.
The position that in the discharge of their functions the President and the Governors have a discretion to disregard the advice of their Council of Ministers is inconsistent with the express conferment of discretionary power on the Governors under Article 163(2). For, if Governors have a discretion in all matters under Article 163(1), it would be unnecessary to confer on them an express power to act in their discretion in a few specified matters. It negates the view that the President/Governor has general discretionary power to act against ministerial advice. The area of discretion is clearly defined and confined. Article 200 is not in the domain of discretion.
The second flaw, and this is more shocking, is that the Court holds that even when a Bill, which is returned to the legislature, is passed again and presented to the Governor, he has the option of either assenting or reserving it for the President’s consideration. The Court says that to hold he has no option then but to assent is textually untenable. This, it is submitted, is the limit to which language can be strained and logic perverted.
The statement in the Shamsher Singh case that ‘refusal of assent would be unconstitutional’ is in the concurring judgment of Justice Krishna Iyer. It is not a dissenting judgment. The other judges did not demur. This has been followed in later cases. Therefore, to rely on much older cases in which the issue did not arise and to hold that action under Article 200 is not justiciable is wholly unwarranted and misconceived. This in some way contradicts the answer to Qt 3- ‘However, in a glaring circumstance of inaction, that is prolonged, unexplained and indefinite, the Court can issue a limited mandamus for the Governor to discharge his functions under Article 200 within a reasonable time period without making any observation on the merits of the exercise of the discretion.’ This is justiciability, however limited.
It is now well settled that every state action has to be reasonable. Where no time limit is fixed for the exercise of power, it has to be exercised within a time that can be held to be reasonable. The exercise of power under Articles 111, 200, 201 is no exception. That must also pass the same test of reasonableness. It is true that no express time limit is prescribed for the discharge of functions under Articles 200 or 201. But it is equally true that these functions have to be discharged and these powers exercised within a reasonable time for such action to be reasonable. What is reasonable will depend on the facts and circumstances and vary from case to case. No timelines can be imposed/prescribed except by statute; it cannot be done by judicial fiat. But a court of judicial review can fix a standard/timeline by which the reasonableness of the action/exercise of power may be examined.
In the Tamil Nadu case, the Court laid down certain timelines regarding exercise of power under Articles 200 and 201, not to fundamentally change the procedure and mechanism stipulated by these provisions but only to lay down a determinable judicial standard for ascertaining the reasonableness of the exercise of power. The court of judicial review is the arbiter of the reasonableness of the exercise of power.
The court cannot simply say that the power is exercised unreasonably. Some standard or yardstick is required to determine the reasonableness. The timelines have been laid down for that purpose. That has been done taking into consideration the recommendations of the Sarkaria and Punchhi Commissions as also guidelines issued by the Union Home Ministry in this behalf. They are fixed more as a yardstick for the Court to determine in judicial review whether the action/exercise of power is reasonable, as is clear from the judgment. The observations in paras 237 to 241 are unmistakable. It is not an amendment to the Constitution. No words were added to the constitutional text of Articles 111, 200 & 201.
It is incomprehensible how a court can say that it will, in the matter of constitutional interpretation, go only by the text of the Constitution without regard being had to the conventions and the gloss that life and judicial decisions have written on it. The Court appears to have missed the insightful observations of the Constitution Bench in U.N.R. Rao’s case that “we are interpreting a Constitution establishing a parliamentary system of government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.”
Fortunately it is an advisory opinion and not a declaration of law after adjudication. Yet, it is bad enough. The opinion is reminiscent of the ADM Jabalpur v. Shivkant Shukla judgement. The Court has done a great disservice to itself and the nation. It has struck a death blow to the Constitution, democracy and federalism. It has turned the clock back effacing our constitutional journey of the last so many decades.
(The author is a senior advocate. Views are personal.)
