A proclamation of democracy in legislative process

‘The criticism that the Court has exceeded in its jurisdiction is misconceived’
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The recent judgment by the Supreme Court of India, in The State of Tamil Nadu vs Governor of Tamil Nadu, was a historic one. But it has also led to another development — the passing of laws without the assent of the Governor or President, which is an unprecedented event in the history of the republic. The Court invoked Article 142 of the Constitution to do “complete justice” in the case and fixed a time limit for the gubernatorial and presidential responses to the Bills passed by the State legislature. It interpreted Articles 200 and 201 of the Constitution dealing with the powers and functions of the Governors and the President and laid down principles governing these provisions. It emphatically said that the Governor cannot torpedo the laws made by the legislature that reflects the people’s will.

The judgment that runs into 414 pages has embarrassed the Centre. The Governor of Kerala is on record for his criticism of the judgment. He has expressed his view that the Court has overstepped into the domain of Parliament and exceeded its authority by subjecting even the President of India to judicial review.

The issue of interpretation

The Constitution is not a static document when it requires interpretation. The Court does not read the text of the Constitution in a mechanical way; rather, it interprets it organically in each situation. A centralist Constitution such as India’s often calls for a federalist elucidation, to balance the interest of the States, which essentially means the people of India. Again, very many deficits in the constitutional provisions might require imaginative and purposive construction to fulfil their objective. Scholar Robert Post has rejected the plain meaning theory of interpretation as not a theory at all, for it does not actually involve a process of interpretation.

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Constitutional interpretation, unlike statutory interpretation, is bound to be panoramic, futuristic and extensive. The Court’s long journey from the narrow understanding of Article 21 in A.K. Gopalan (1950), which validated the preventive detention, to the broader prepositions on privacy based on the very same article in K.S. Puttaswamy (2017) shows the significant transformation in the process. The present judgment, which was rendered by Justice J.B. Pardiwala and Justice R. Mahadevan, demonstrates constitutional modernity and realism.

Article 200 of the Constitution is about the Governor’s duties (not powers) with respect to the Bills passed by the State legislature. Primarily, when a Bill is placed before her, the Governor has three ways ahead: to give assent; to withhold it; or to make a reference to the President. Returning the Bill that is withheld, for reconsideration is the next option. Once a Bill so returned is reiterated by the House with or without amendment, the Governor cannot withhold assent any further. The Article also provides for reserving the Bill for presidential clearance in certain cases. Situations of repugnancy, and patent unconstitutionality on account of breach of express constitutional provisions could be reasons for such a course. Article 201 is on the obligations of the President on reservation of the Bill for her consideration. She can either give assent or withhold it. Also, she can direct the Governor to return the Bill to the President with a message when it is not a money Bill. Reconsideration of such a returned Bill should happen within six months. On reiteration, the Bill should be again ‘reconsidered’ by the President.

Requirement of a reasoned order

This scheme indicated in the constitutional text is not comprehensive. The Court, while deciding the illustrative instance of the Tamil Nadu Governor dragging the Bills, had occasion to scan the intent and the content of the constitutional provisions. One major deficit of the provisions is a lack of a time limit for the Governor or the President to carry out their prescribed function. Again, provisions imply a great element of trust in the constitutional functionaries, which, however, stands betrayed over a period, especially in the recent past. A textual reading of the provisions can only perpetuate these deficits, which in turn, cannot resolve the issue placed by Tamil Nadu in the given case. This realisation has constrained the Court to fix the time limit for gubernatorial and presidential decisions on the Bills. This again has led to the judicial assertion that certain actions or inactions by the constitutional functionaries under these provisions cannot escape judicial scrutiny. In the given scenario, the idea of deemed assent by the President was a constitutional synthesis, for which Article 142 of the Constitution provides a formidable foundation.

The judgment relied on the Sarkaria Commission Report (1988) which said that “nonconformity of a state Bill to the policy of the Union Government is not always a safe ground for withholding presidential assent from it”. The verdict has also underlined the requirement to have reasoned orders when constitutional functionaries choose to decline assent. It rejected the idea of “simpliciter withholding” of the Bills. Thus, the perceived immunity attached to the Governor and the President in the legislative process is completely removed by the judgment. It is a proclamation of people’s democracy in the legislative process.

Therefore, the criticism that the Court has exceeded in its jurisdiction in the given case is clearly misconceived. It is erroneous to think that the Court has ‘amended’ the Constitution only because it supplemented (not supplanted) the constitutional provisions to meet the exigencies. It does not amount to legislation either, as the conclusions in the judgment only rest on a thorough precedential survey on the issue. It quoted Justice V.R. Krishna Iyer in Shamsher Singh & Anr vs State Of Punjab (1974), a seven-judge Bench judgment, which is still regarded as the locus classicus on gubernatorial functions under our constitutional scheme. The present verdict imported the people’s right to enact laws while Shamsher Singh was more on the binding nature of the decision of the cabinet chosen by the voters. The Court could reject the idea of “unfettered discretion” in referring the Bills to the President, as laid down in B.K. Pavitra vs Union of India (2019), based on larger Bench decisions such as the one in Shamsher Singh. It is promising to see the judiciary in an assertive mode, after a long interval, that too in a case where it directly confronted the political executive at the Centre.

Suggestions to consider

Yet, two suggestions may be useful for the time to come. The first is that in critical constitutional adjudication, instead of rendering huge verdicts after a long time, the Court needs to resort to the practice of delivering shorter judgments within a shorter span of time. The judgment of the U.K. Supreme Court in the Brexit-related case, R(Miller) vs The Prime Minister (2019), was just 24 pages. Brevity and promptness in the judicial process could be of great support for a nation in trouble.

Second, when matters of the similar nature are pending adjudication, the Court must have a system to club them together so that the same Bench hears the cases together. A lack of proper internal management in the Court was felt when after the Tamil Nadu judgment, a request had to be made on behalf of the State of Kerala to place its petition seeking similar relief before the same Bench. Propriety demands that such a request is heeded to forthwith, to ensure certainty, predictability and clarity, which are essential facets of constitutional adjudication.

Kaleeswaram Raj is a lawyer in the Supreme Court of India