The presidential reference, on court’s authority to regulate conduct of Governors and President, is an attempt to obfuscate core issue of thwarting people's will
War is too important to be left to the generals — that statement is attributed to French statesman Georges Clemenceau.
Similarly, constitutional propriety is too important to be left to legal luminaries. It is in this light that we venture to examine the President of India’s reference to the Supreme Court of 14 questions framed in the wake of a court verdict invalidating the arbitrary behaviour of Tamil Nadu Governor RN Ravi with regard to 10 bills passed by the state legislature that he sought to abort by inaction.
The same judgment, by Justices Pardiwala and Mahadevan, has set a timeline for the gubernatorial response to a bill sent for the Governor’s assent by a state legislature. That timeline set an outer limit on the time available to the governor as well as the President of India to take a call on a state bill sent for assent/presidential consideration.
Will of the people
Many have seen in the verdict of a two-judge bench a marked extension of the judicial turf at the expense of the executive’s domain. That view is mistaken.
The well-argued verdict gives primacy to the imperative of democracy to uphold the will of the people, and fills with the light of clarity the grey shadows of the Constitution where it deals with potential arbitrariness in gubernatorial treatment of state bills.
Governor Ravi sat on 12 bills passed by the legislature for years, neither giving assent nor sending them back with a message outlining his reservations. Nor did he refer the bills to the President.
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When the state moved the Supreme Court, he referred two bills to the President, returned 10 to the legislature without any message, and, when the legislature reaffirmed the bills and sent them back to him for assent, referred them to the President. Some of the bills were passed as early as in 2020.
What Constitution says
According to the Constitution, when the legislature of a state passes a bill, and it is submitted to the Governor for his assent, he can give his assent, return the bill with his reservations or refer the bill to the President of India.
If the bill is not referred to the President, but returned to the legislature with his observations and suggestions for amendment, and the legislature sends the bill back to him, either amended or in its original form, the governor has to give his assent.
If a bill is referred to the President, the governor must return the bill to the legislature with the President’s message. If the state legislature passes the bill again, accepting or ignoring the suggestions, if any, in the President’s message, the Governor has to send the bill back to the President for his consideration.
The court's time limits
The Constitution does not set a limit for the time taken for the process. It merely says "as soon as possible".
The present court order sets a limit of one month for the governor to communicate his decision to withhold assent. It gives three months to return the bill with the Governor’s message for the legislature to act on, or to refer the bill to the President.
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When the Governor returns a bill to the legislature with his message, the legislature can pass the bill again, incorporating or ignoring the Governor’s suggestions, and send it once again for the Governor’s assent.
In such an eventuality, the court verdict gives the Governor one month’s time to give his assent. He does not have the power to veto the bill.
Even when the bill is reserved for the President’s consideration, the court suggests a time limit of three months for the President’s opinion to be conveyed to the legislature through the Governor.
Thus, according to the timeline set by the court, within six months of a bill being passed by a state legislature, it would be back with it, either approved or with the President’s objections recorded, for the legislature to accommodate or reject.
If the bill is again passed by the House with or without amendment, it shall be presented again to the President for his consideration, according to the Constitution. But the present verdict makes it clear that the President’s objections cannot be arbitrary and shall be justiciable, meaning the state government can approach the courts to question the validity of the President’s objection.
Dare to question
How dare the Supreme Court impose rules of conduct on the constitutional offices of the President and the governor? When the Constitution has not thought it necessary to fix a timeline for a bill’s actualization, progressing from assembly to governor’s/President’s office to law, is the court right to institute such a time constraint on the head of state?
Such questions might seem momentous and complex in the exalted world of constitutional expertise. But in the realm of politics, throbbing with action at sea level, the question is straightforward: does the verdict uphold or hinder articulation of the will of the people, the ultimate sovereign?
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If the Constitution said as fast as possible, and governors did not stretch the latitude given by the imprecise phraseology to sit on a bill they did not like for years, as RN Ravi did with the Tamil Nadu bills, there would be no need for the court to give directions to the executive.
But when partisan politics combines, in the persona of the governor, with ersatz self-importance, leading him to assume impunity while subverting people's will, as voiced by the legislature, the court would err if it remained silent or bowed before the overweening authority projected by the executive.
The only question that merits serious attention among the 14 raised by the President is whether the two-member bench should not have referred the matter to a bench with at least five members when it was clear that it had to grapple with constitutional issues.
The two-judge bench relied on the opinions of larger benches to arrive at the opinion it did. So, in substance, the Pardiwala and Mahadevan verdict is perfectly valid. But, then, there are people who would be satisfied that two and two make four, when it is pronounced by the author of Principia Mathematica, but not when Guddu in Class 2 says as much.
What Article 142 covers
The government itself does not seem to have taken the presidential reference all that seriously.
See the phrasing of Question no 13: “Do the powers of the Supreme Court under Article 142 of the Constitution of India limited to matters of procedural law or Article 142 of the Constitution of India extends to issuing directions /passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or law in force?”
The sentence has been written either by bad Artificial Intelligence or by Guddu in Class 7. It is grammatically inchoate, and plain ridiculous in substance: can the Supreme Court, under Article 142, issue directions that violate the Constitution, or merely clarify procedural law? Forsooth!
Article 142 reads as follows: The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
This government, at least, should know that Article 142 covers a whole lot more than procedural law. After all, the Ram Janmabhoomi verdict was issued using the powers of the court under Article 142.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)
